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Attorneys choosy with winter 'slip and fall' cases

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.’”

4 comments

  1. This article proves our slip and fall negligence laws are a joke, and it is elitist attorneys who help make it a joke. Here’s hoping a few of them slip and fall and nobody will take their case because it wasn’t worth $25,000.

  2. Rieck, I think you are a little misguided in your criticism of the attorneys in this article. To bring a claim like this to trial, the costs, which are fronted by the plaintiffs attorney and recovered only if successful, will total close to $10,000. These costs include cost of a liability expert, deposition costs and testimony from at least one doctor to opine on the severity of injury. Plaintiff attorneys work on a 1/3 retainer agreement, meaning 1/3 of the overall recovery (fee) plus costs go to the attorney, the rest going to the injured client. If you have a $15,000 slip and fall case with $10,000 in costs, the client ends up with little to nothing in his or her pocket at resolution. With a GOOD liability slip and fall case still being a 50/50 proposition, it doesnt make sense for the client to pursue the case when at best case scenario it puts very, very little money in their pocket. More times than not prospective client understand and appreciate this analysis and agree not to pursue claims with a value of less than $25,000.

  3. My wife fell in January of 05 and after 5 years we are about to go to court. We have about $600,000 in operations that have been done plus more later on in life. She fell in a store about 20 feet and she stepped over mud and slipped on unseen water. No signs and it had snowed for about a week earlier. As soon as she notified I asked for the video tape to be saved and the management was notified of the conditions. Now the chain cannot find the video and stated that there were signs up. I just love how a store can catch a shoplifter with a candy bar but can’t find a video that will prove that the store was at fault. This is not a joke to me and my wife. The pain has prevented us to have a physical relationship and is unable to walk with out help of a device manual or electric. Our home has been fixed with handrails to ramps. We know that the store has video of the front area, due to the fact that earlier that year the store was robbed for a pack of cigarettes and the cops could see the person on the tape and was caught. I have taken a part time job due to the condition my wife now is in. Now I work at a job that requires no risk, as before, with my education in law enforcement I know have a less risky job. All I need is to get hurt and not be able to take care of my wife. Pretty Funny, right?

    Eli James

  4. Rieck,
    here’s hoping YOU slip and fall, and suffer injury. Come on back with your wit then.
    Happy New Year.

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