Slip and fall cases in New Hampshire
Published 06/21/07

An experienced civil defense lawyer was once overheard saying "I never met a slip and fall case I wouldn't try". This reflects a perception that a slip and fall case is a very difficult case for a plaintiff to try to a successful verdict. Though slip and fall cases present unique challenges not seen in other personal injury cases, with the correct preparation, they can be successfully prosecuted.

As a starting point, under New Hampshire law, a land owner, whether a private citizen or business owner, has the duty to use reasonable care in maintaining their property. The definition of the "reasonable care" is not hard and fast, but rather it is determined by the surrounding facts and circumstances. In a slip and fall trial, the jury will decide whether the land owner's actions were consistent with what a reasonable person would be expected to do under same or similar circumstances.

Slip and fall cases against commercial land owners became a bit easier for plaintiffs with the 1998 New Hampshire Supreme Court decision of Valenti v. NET Properties . In Valenti , an elderly lady slipped and fell on a ramp at the Bedford Mall. The mall owner argued that it discharged its duty of reasonable care in maintaining the property by hiring a competent janitorial service.

At trial, the Superior Court allowed the mall owner to argue that defense to the jury and the jury returned a defendant's verdict. On appeal, the Supreme Court overturned the trial court's decision and held that a land owner does not discharge its duty of care by simply hiring a competent maintenance person to maintain the property. The Supreme Court explained that the land owner's duty to maintain a safe premises is "non-delegable".

Nevertheless, slip and fall cases require extensive preparation before they can be brought to trial. The first question that needs to be answered is whether the accident was the result of either improper maintenance or improper design. The question between a maintenance or a design claim impacts the investigation which must be undertaken in preparing the case as well as the type of expert witness or witnesses that will need to be retained to assist in the investigation and, ultimately be called as witnesses at trial.

In Valenti , for example, the plaintiff argued the accident was caused by water which had accumulated on the tiles. Therefore, investigation of the mall maintenance practices was necessary regarding how frequently rain and snow mats were put down at the entrances and in the corridors of the mall and how frequently they checked and replaced by janitorial staff.

Once the theory of the claim and defense has been investigated, the plaintiff will need to be questioned further on many details to see if the claim remains viable. For example, questions need to be asked regarding what type of footwear were worn at the time of the accident. Likewise, one might inquire whether the claimant was carrying anything in her hands, or was the claimant distracted by anything and not watching where she was going? In short, the lawyers involved need to understand how the fall happened. An important part of this process always is the question of whether there were any witnesses to the fall and, if so, what did they see happen?

It is also very important to be as accurate as one can in a defective maintenance claim, in describing the circumstance that caused the fall. People frequently poorly estimate the size of an object. In one case, a plaintiff estimated the puddle that she slipped on in a grocery store floor to be approximately 3 to 5 feet in diameter. The plaintiff believed this was a small puddle, until the defense counsel produced a 3 to 5 foot cardboard cutout which covered almost half of the desk at trial. At that size, the puddle became as much of an factual issue as to why the claimant did not see it at the time of injury as why maintenance did not clean up the puddle before the claimant was caused to fall.

In sum, selecting the most viable theory of a claim and a thorough investigation of the facts and full preparation of the case prior to trial is the only way of insuring a successful outcome in a slip and fall claim.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.