I’ll begin with a disclaimer: when I was a plaintiff’s PI lawyer, I did not get assigned cases until they were already filed in court. Second, as to the picture above, I searched but could not find a picture of someone falling solely due to over-salted pavement. And yet, this was the claim in a premises liability lawsuit assigned to me back in the pre-Lugo v Ameritech days. The complaint alleged that the defendant was negligent because it had done too much to alleviate the possible dangers of accumulating ice and snow yet to come.
I was reminded of that case as I walked though my neighborhood and surrounding businesses this weekend. We have had a blessedly mild winter, thus far. And as I write this in late February, we are nearly half-way through Michigan winter, with spring a mere 66 days away (May 1-maybe). Less snow and ice than usual, and some preventative salt remains on the pavement.
Back to the case. The client indicated that upon approaching the defendant’s store she began to lose control of her footing on the salt, and she was propelled many feet forward before falling. This came in handy as we learned (a bit late) that there were 2 entities involved, the owner of the store and the owner of the strip mall, including common areas of the strip. Sadly, I think our office had only sued one of those entities. So, having our client propelled over both the common area and the store’s property was actually helpful (word helpful used in its broadest possible sense). We could blame either or both, and the failure to sue one did not let the other off. Something like that. We retained the firm of Howard, Fine and Howard, on the issue of accident reconstruction. Also, we had an executive from the Morton Salt Company lined up to testify on the various grades of salt, and that there were much finer grades available than the gravel sized pellets used on the pavement in this case. He was also to testify as to melt rates, using international standards. Not really.
It often happens in plaintiff PI law, that a good injury often goes searching for a liability theory–sometimes not a great one. Readers would assume with the previously described negligence theory, the injuries must have been extensive. This was not the case. We tried so hard on the negligence claim, we lost sight of the injuries. When we finally got to it, we learned that there was no “there” there. The injuries were not very serious, no interventional treatment, no missed time from a job. And to top it off, the client was not forthright in telling her treating doctors or her attorneys about her pre-accident medical history.
You may find this hard to believe, but the case did not go well. Somehow, there was not a Summary Disposition motion filed, but the case resolved for what can be accurately described as nuisance value. Fortunately, I never had to deliver an opening to a jury, promising to prove to them what the defendant did wrong. Though, thinking about it as talented as I am (see my LinkedIn page), I am sure I could have delivered an opening and closing that would have moved both judge and jury to tears (of laughter, most likely).
The court, the defense attorney, and the names of the client and the defendant are long forgotten now. But, after all these years I can’t see salt on a dry sidewalk without thinking of that case. I can say that my experience has allowed me to avoid an accident in every encounter with the hazard. And I thank God for that.
