It’s winter in Wisconsin, which means that for upwards of five months, pedestrians have to navigate icy patches of pavement, some with more success than others.
Personal injury attorneys say that this time each year they field calls from people with premises liability or ‘slip and fall’ claims, but few of those claims are worthy of a lawsuit.
Milwaukee attorney Anthony J. Skemp only pursues “a handful” of ice-related slip and fall cases each year, and those claims have to meet certain criteria to warrant taking them to court.
“We bat away more of these than we sign up,” he noted.
For example, said Skemp, photographic evidence, documentation or eye-witnesses are key elements in building a credible case.
Sole practitioner Randall L. Rozek said a key component of a credible slip and fall case is whether there is a history of poor snow and ice removal at the property in question.
He said jurors tend to allow an isolated mistake during winter, but are less lenient if there is a proven cycle of substandard maintenance.
“If I can establish a pattern of neglect and the owner is liable under state statute, [that’s] great,” he said.
Severity of the injury is also a determining factor, noted Skemp. A soft tissue injury isn’t likely to persuade a judge or jury.
Someone who slips outside a Walgreen’s and calls 48 hours later without any substantive evidence or significant injuries won’t get very far, he said.
“When we’re in a dogfight with the insurance company on liability, we need more than that,” Skemp said.
Manitowoc attorney Steven R. Alpert agreed. “Anything surgical is good.”
That can include herniations, bulging discs or rotator cuff injuries.
“If we estimate that it’s going to result in a small amount of damages, we’re not going to take it,” he said. “But, if damages are good and the client is believable, we’ll take a chance more often than not.”
He generally avoids taking cases worth less than $25,000, and won’t take a case if there is no insurance.
Can be worthwhile
Despite the many caveats, in the right circumstances winter premises liability cases can be lucrative.
Rozek is working on a slip and fall in which the property owner’s downspout drained onto a driveway which had a ditch that poured onto the sidewalk. He is relying on law providing that a property owner can be held liable if there is an unnatural accumulation of ice or snow.
And Alpert has won some six-figure awards for clients.
In one case, he successfully argued that owners of a mini-mart hadn’t taken the necessary steps to remove ice and snow from outside the store in a reasonable amount of time.
Multiple defendants can also lead to profitable cases, such as if a business outsources its snow and ice removal to a company that didn’t do the job.
“So if a mini-mart hired a plowing company and they didn’t show up, we can also bring them in,” he said.
To defend these cases, Alpert said opposing counsel will frequently use this argument: “It’s winter in Wisconsin, we can’t keep things perfect.”
Wisconsin’s Safe Place Law, which applies to public buildings and places of employment, provides that every business owner has a duty to maintain the premises in a manner that is as safe as reasonably possible.
“You need to find something to hang your hat on liability wise,” Alpert said. “If it hasn’t snowed in a few days and maintenance isn’t being done, we can recover on those cases.”
He shies away from public sidewalk slip and falls, because to bring suit against a municipality like Milwaukee, a plaintiff has to prove it has not snowed in 21 days and there is a damages cap of $50,000.
Rozek says he only takes about a quarter of the slip and fall cases he is presented with each winter.
“A lot of times people don’t understand and they think they are entitled to compensation,” Skemp said. “Sometimes we have to say, ‘Unfortunately, we’re not in position to help you.’”