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FDCC ARTICLE OF THE MONTH
 

The FDCC promotes scholarship among its members to benefit the defense community.  At each of our semi-annual meetings, over twenty papers and programs are presented on a wide range of legal topics.  In addition, for over half a century, FDCC members have published law review style articles in the Federation of Defense & Corporate Counsel Quarterly

 


 
This month's featured article by...

David J. Varriale

 

Hotel and Hospitality: Management of Slip and Fall Claims

Introduction

Most hotel and resort proprietors would agree that providing comfort and safety to valued guests is a top priority.  A lack of attention to safety can result in guest-related injuries, and costly litigation.  There are several obvious reasons for proprietors to be concerned with safety and guest-related injuries, including guest dissatisfaction, adverse media coverage, and litigation costs.  Accordingly, the best policy is the avoidance and limitation of the dangerous conditions that lead to injuries.

In this article we discuss the case of Ulu v. ITT Sheraton Corp, 27 A.D. 3d 554 (2006), a decision from the New York Appellate Division, Second Department from 2006.  The case is worth rereading because it sets out, in simple terms, what the plaintiff is required to prove in a slip and fall case involving a dangerous condition.

Case Discussion

In Ulu, the plaintiff alleged that she sustained injury when she slipped and fell in a bathtub in a second floor hallway bathroom while attending a conference at a Sheraton Hotel.  Plaintiff further claimed that she saw moisture on the bathroom floor only after falling, and surmised that she had slipped on it.  In response, Sheraton sought summary judgment, and had to show that it did not create the dangerous condition (the wet floor), or have actual or constructive notice of the condition long enough to be considered negligent for not remedying it.  Sheraton submitted evidence that it followed a written policy of inspecting conference room facilities and hallway bathrooms, every 15 to 25 minutes, and promptly corrected any problems which those inspections revealed.  The trial court found that plaintiff failed to prove that the alleged wet condition existed for a long enough period of time to find Sheraton had constructive notice of it, and granted summary judgment in favor of Sheraton.  The Appellate Division affirmed the decision.

Analysis

Generally, slip and falls on interior floors fall into two categories.  First, there are those dangerous conditions created by the proprietor.  Second, there are dangerous conditions that arise through no active fault of the proprietor.

In the first category, where the floor is made dangerous by the proprietor, the law typically does not require a plaintiff to prove the proprietor had any notice or knowledge of the dangerous condition.  In the second category, the law typically requires the plaintiff to prove that the proprietor had actual knowledge of the dangerous condition, or that the dangerous condition existed for such a length of time that in the exercise of reasonable care, the proprietor should have known about it.

In Ulu, the New York Appellate Division affirmed that there was no evidence that Sheraton, or any of its employees, created the dangerous condition of the wet bathroom floor, and there was no evidence that Sheraton, or any of its employees, had actual knowledge of the moisture on the bathroom floor.  Therefore, without any evidence of how long the moisture had been on the floor before the accident, the conclusion was that summary judgment was proper in favor of Sheraton.

Sheraton prevailed, in part, because it proved it had inspected regularly, thereby preventing plaintiff from proving Sheraton had constructive notice of the wet floor.  Accordingly, having affirmative proof of regular inspections was vital in defeating the plaintiff’s claim.  The case illustrates the importance of having a policy of regular inspections, executing that policy, and documenting the results.

As a matter of practice, hotel and resort proprietors should craft policies aimed at demonstrating proactive, regular inspections and maintenance of their property.  Moreover, in response to a slip and fall, the proprietor should determine how the accident occurred, what caused the accident, gather any physical evidence, take photographs, interview witnesses and obtain statements, and remedy any dangerous condition.  The proprietor should also prepare an incident report, and maintain it in a separate file for guest-related injuries.  Proprietors should also periodically review and audit their incident files, to ensure that employees are carrying out policies with respect to inspection of any potential dangerous conditions.  A policy that requires the staff to document their daily or periodic inspection of a guest area, will often provide the proprietor with evidence to prove reasonable inspection, and no actual or constructive notice of a dangerous condition.

Conclusion

Sometimes, we get cynical about slip and fall cases.  It is tempting to think of them as cases of strict liability.  However, this is not the law.  The proprietor is liable only for the consequences of a failure to use reasonable care.  While the proprietor is deemed to be in a superior position when it comes to knowing about dangers on the premises, and has a duty of care to keep the premises reasonably safe for business invitees, the proprietor is not a guarantor of the safety of persons on the premises.

As defense litigators, there is another consideration with these slip and fall cases.  Often, state courts are reluctant to grant summary judgment in these slip and fall tort cases.  A defense attorney should consider, where appropriate, removing these cases to federal court from the state court in which it had been originally filed.   Often, the federal courts are more receptive to summary judgment motions because of their smaller caseloads and larger staffs to assist judges.

As for our clients, the best practice for risk avoidance, and the successful defense of these slip and fall claims, involves the development of a well-written inspection policy.  That policy should clearly delineate the procedures for regular inspection, report, and remediation of any dangerous conditions.  If the policy is carefully constructed and executed, it will provide the best protection against dangerous conditions for guests and proprietors alike, and will also help to ensure the safe, continued enjoyment of the property’s facilities.

 



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