S4 Ep6 - Slip & Fall in Stores

[Music] You're listening to Mittnik's monthly brush strokes, a podcast on the art of outsmarting, the fun part that sets you apart. I'm Keith Mittnik, author of Don't Eat the Bruises. For more information visit KeithMittnik.com or email me it's [email protected]. Hello again everybody. This time I want to talk to you about slip and falls in grocery stores or similar businesses and this is another situation where we can look at the case from a first knee jerk reaction and say boy it's got a lot of problems this case can't have a lot of value because my chances of winning aren't all that good so I need to have deep cuts into the value of the case for settlement and I want to encourage you to rethink that because just like in the last episode we were talking about how trip and falls that are open and obvious on first knee jerk reaction sounded like oh my gosh big big comparative maybe even lose the case with that sidewalk that was pushed up and by the end we got zero comparative fault and we'll can reproduce that over and over and over because the knee jerk reaction was simply human but wrong and it's the same thing with these slip and falls and I want to address something most jurisdictions to one degree or another have hurdles under the law either case law or statutory law about how long the notice has to be there to be able to find liability and I know in Florida for example there's always a risk of getting a summary judgment against you on it so that has put me right ground zero on figuring out how to get justice and fairness in a right result when you're faced with those kind of unfair hurdles and here's why let me start with why it's unfair and then I'm gonna convert it into the arguments either for the judge or the jury to bring this to life but the starting concept is we are skipping a step when you go right to the notice because they're gonna prove by the position the defendant takes that sometimes when things get on the floor there simply isn't enough time to clean it up and find out about it and clean it up and as a practical matter there are situations where that's true a lot of times it's been there long enough and they're just not doing their job but sometimes you know it may have gotten there not long before your client can does that mean they should have no responsibility it's just tough luck your client hit something on their their floor went down and it changed their life forever with a significant injury and in my mind no that's not fair at all they ought to be responsible so that led me to start thinking just like I thought about the sidewalk why is it that my client is right and they're wrong in spite of the fact that there may not have been adequate time for them to be put on notice about this particular spill or debris and clean it up why should they still be responsible isn't it isn't asking too much in answers no it's not and then I thought through it and here's why they are on notice is something before that hits the floor what are they on notice several things number one they're on notice that the type of flooring they chose and they didn't have to choose this kind of flooring but the type of flooring they chose will not tolerate moisture the minute moisture gets on it it's like ice why why why it rains outside people aren't falling in the park and lotter on the sidewalk and it's got damn rainwater on it how come a little bit of water dripping off ice turns it like slick as ice two reasons that flooring is not porous unlike you go outside in a sidewalk that's concrete out there and it's that concrete that's porous or the asphalt moisture doesn't sit in pool it will if it's just pouring but then it gets so big you splash you don't slip so it is porous number one and number two it has grip grain I call it grip like a GRIP grip it'll grip the shoe it's got a bit of a roughness to it it's not slick as ice so the moisture outside on asphalt a concrete is falling on something that has the fancy engineering word is coefficient of friction I just say grip and it's porous so it the water has a way to see through it around it you get a little bit of moisture inside those stores they have designed those floors with zero grip no coefficient of friction and with no porosity meaning the water sits in pools and that little bit of water is like having a sheet of ice it's like spilling oil on the ground you hit it you're going down they absolutely know moisture on the floor creates a ultra hazardous condition they know it why is it ultra hazardous because that little bit of moisture creates this instantaneous slick as ice but it that's not the end of the danger it also knows that people can't protect themselves why because they are by design taught to look up not down nobody's putting product on the floor the product is up on the shelves the more you buy the more money they make and they put it all up on the shelves so they are it is unfair to say you ought to be looking where you're going not under those circumstances just like it's not and you don't look where you're at your feet when you are on a side walk like you would in a minefield or a cactus field or a junkyard when you're wearing flip flops it's a totally different situation walking downtown to lunch you don't stare at your feet and you damn sure don't stare at your feet in a grocery store because you have to look up at the product you're gonna miss it and they don't want you looking down they want you looking up so you'll buy more stuff and they'll make more money but it's more than just that I've had a one of these brushstroke podcasts on that point in the past I'm gonna add something I've figured out since then and then we're gonna jump in front of this there's not enough time argument and beat them to the punch on that in a fair way so this don't I hope you don't think I've heard this before it's a rehash no it's not the fundamental underlying subjects of rehash but I'm adding some hot new stuff so what's the new part about not seeing where you're going not watching your step what do they give you at the front door a cart what's the purpose of the cart the load is much shit in it is possible so they can make more money what happens the minute you put a two three things in the cart you couldn't see what's on the floor in front of you if you put a gun to your head you just can't do it the cart is blocking your view so who knows better than anyone that the cart is blocking your view they do they're in the business of it they gave you the cart they were praying you'd use the cart and they know you can't see through the cart so in addition to it instantly turning slick as oil or ice you can't protect yourself and they know it better than anyone that's still not the end of why they're responsible there's one more piece to it they know full well that if people hit one of those puddles and they're not puddles they're hard to see one of these spots of moisture whether it's moisture from a grape whether it's moisture from someone spilled out of the iced tea that they have a machine that you can fill it to the brim and everyone gets their money's worth and fills it to the brim with ice or some of your near a freezer that's sweating water out whatever it is they know if you hit one of those spots that you can't see and protect yourself against that are going to be dangerous because of the type of flooring they pick you're gonna go down hard and in all likelihood get hurt bad because it's like falling on concrete because it is falling on concrete you're hitting something hard as a rock and you're going down awkwardly and completely unexpectedly you watch those videos from inside from the eye and the sky when people go down they go down hard so they know that people it's it's ultra dangerous because the harm is likely to be bad and I said one more piece I jumped the gun myself there is a yet another piece of why they're responsible they know absolutely that stuff will get on the floor it's unabashed avoidable. Those moistures are gonna get there because customers are sloshing and not paying attention there in a hurry. They won't even realize they slosh. Some of them do and they're too big of a hurry to stop and get someone to clean it up. Others just had no clue. It was completely accidental and they were unaware. So it's got the freezers are gonna leak. People are gonna slosh. You got produce all over the place. It's gonna get on the floor. It's gonna fall not just in the produce. It's gonna fall out of carts so they know. Not only do they know it's gonna get on the floor, not only do they know it's gonna get on the floor and be very dangerous because it's gonna be slick as oil. Not only do they know you can't the customers can't protect themselves and not only do they know they're gonna go down hard and probably get hurt bad. They don't know exactly when it's gonna get on the floor. It's not a predictable cycle. It's not like all right. We know every 15 minutes it's gonna happen every 30. You could go three hours and not happen. Then it could happen four times in a minute around the store. So they know what's gonna happen. They know it's gonna happen with frequency but they don't know how frequency. It's not on a clock. You can predict precisely when. Now you put all of that together and it's shameful of them to try to escape responsibility by hiding behind well we didn't have enough time to clean it up. You knew before it hit the floor many times you were not going to have time to pick it up and you knew your paying customers were gonna get hurt bad and you get to turn a blind eye and hide behind. Well hey we didn't have time to be doing do anything about it. And by the way we have these policies. We have these grossly inadequate ridiculous policies that were designed to protect them not their customers like everybody's job is responsible for always watching the floor oh and by the way we have someone every 45 minutes walk the store and specifically look and so that's good enough and if it happens in between those times and ain't on us what do you want us to do we've been so reasonable this is just something beyond our reach hog wash. If you know all that that I just laid out then A you've got an unreasonably dangerous floor fix it if people are gonna get hurt in your store on a regular basis and hurt bad because you don't have time to fix it then you better fix the floor and I don't mean you got to rip the floor up and replace every floor and every grocery store that chain owns across America you can get this little grip that doesn't make the cart bump like you're riding down you know gravel road it's almost imperceptible but it means it can tolerate a little moisture and not become dangerously slippery. I got a pool out back in my beach house it's that there are a couple places they get really slick when it's wet because I got this really pretty stone out there it's it's limestone it's gorgeous but you know what when my grandkids are over I'm worried the death they're gonna slip because they're tearing around the pool I don't care how many times I say slow down it's not running you look away for 30 seconds they they they cannot not run apparently so I'm fixing to I searched it you can get it and I thought if I can get it they can get it this is my my home pool these people are in the business and they got a dangerous floor so look I don't know what the case law is gonna hash out are they gonna say that's not within the statute they don't have to do it I don't know but I know this I'm done our law firms done letting them get away with it we're gonna sue them for having an unreasonably defective and dangerous floor and use their defenses against them they say they don't have time to respond then you better respond before it happens and have a floor they can tolerate some moisture that inevitably is gonna get there and get there often albeit you can't predict exactly when because someone's going down and they're gonna get hurt because it turns it to ice and they can't protect themselves because they can't see where they're walking period I believe that's an absolute 100% winner but that's my opinion we're gonna find out but I recommend you consider pleading that in your pleadings get out in front of their defense beat them to the punch head them off at the pass now let me add a couple of the pieces to that if here's the next argument if they're not oh before we leave that take a corporate rep ask them if they looked into something with the flooring to make it better safer less slick every time a little moisture gets on it there's only two answers and we can live with both of them we can win with both one answer is no we've never considered well they're cavalier and they don't care try that on with the jury or they say yes we have and then you say why didn't you it's gonna be my knee so it's either cavalier don't care or greed either answer is gonna hurt them in front of a jury so now let's move on if for some reason you're gonna expose all of your customers this ultra hazard danger that isn't like it may happen once in a blue moon it happens all the time you better at least have some policies that actually protect people meaning you better have people out there looking all the time not every 45 minutes or an hour stand in front of a jury take a stopwatch go three minutes I'm gonna make a prediction you can't make it stand and silently for three minutes with a stopwatch with the jury trying to make the point of how long let's take 30 minutes is how long 30 minutes to do one of these sweeps through the story is three minutes I know I've done it is an eternity of silence standing there with nothing happening the jury looking at you and the judge looking at you and sweat pouring down your middle of your back because it feels like you've been standing there in silence for an hour you get the three minutes and then click off and say now times that by 10 if they go every hour times that by 20 that's how long this absolute gonna happen gonna happen often very very dangerous situation is gonna sit there unprotected with all those customers it's outrageous to go that long you ought to have someone on every two hours three hours minimum wage the same you pay the the people working the bagging and working the cart to help people load they don't pay them peanuts you can pay three or four or five of those people to man two or three hours and your jobs to circle and look maybe have someone designated in the produce aisle or near the freezers that just works that area and all they do is check stare at that floor and check that floor you would cut the number of injuries down to a 10th or less why shouldn't they have to pay for that ask a corporate rep that one one and two answers we never thought about it you cavalier don't care or we didn't we didn't want to spend the money your cheap second what about the policy that says everybody in the store when they're moving about the store has got an obligation and a duty and a responsibility to always be checking the floor well here's what I say to that it is a piece of paper policy designed to protect them not the customers because it doesn't work at all why because of the basic principle if everyone's responsible no one's responsible the bag boy thinks there's the assistant manager there come behind me I'm trying to get things on the restock before I I gotta go home in 10 minutes I got a finish they ain't watching the floor and the assistant manager says well the the stock stockers up ahead he ought to look I'm a assistant manager I ain't got time to look I got more important things nobody looks you know what really happens neither of them thinks of either thing because that policy was written buried in a policy book never enforced never taught never treated seriously and nobody ever watches the floor you know how you can prove it don't just get the eye in the sky footage of your fall get as many hours before and after as any point in the stores you can if it's a big chain get them from every store if you can and I had one of our lawyers who took me serious on this now we're all doing it and they pulled seven hours of the footage from that eye in the sky and they took a seven hour depot of a corporate rep and made her identify every employee the minute they came into view and then watched him until they went out of view and said I want you to tell me when you see them looking down it's inspecting the floor you know how many times in seven painful hours they did not once and I promise you if you go through the exercise you're going to repeat not once again take the corporate rep asking if they ever done that on their own no it's going to be the answer so you got this policy do you bring them in do you reteach it tell me anytime show me documents of anyone that has ever been disciplined or punishment for violating that rule it's going to be zero because it is a piece of paper that's not worth the paper is written on it's fluff there to worse it's there to give them a defilement. to fancy the lawsuit when all their customers get hurt. So, when you go through this and you tear it up that way, you show their policies don't work and they know it, that they could fix 'em and they don't, that they could fix the flooring and they don't. Why? 'Cause they think they got a free pass to hurt customers and make a fortune off that business that's too dangerous and causing bad injuries. When we do all of that, then we're gonna change the world and there's snobby arrogant nos in the air, we got ya, ain't gon' be any more. So, get on with me 'cause this is a mission of ours. I ask you to get on this mission. They've been gettin' away with it for too long. So, thank y'all very much and I look forward to next time. (upbeat music) (upbeat music)