Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Posts tagged slip and fall
Overcoming Ohio's "No Duty" Winter Rule

If you didn’t notice the parking lot on I-271 or I-480 this morning, winter is here.   As the conditions become slick due to the snow, ice, and slush, it is not uncommon that individuals to sustain significant injuries in slip and falls.  

In Ohio, there is a “no duty” winter rule which comes into play in – you guessed it – winter; and ill typically apply in falls in parking lots, entryways, and sidewalks, to name a few.   However, this “no duty” winter rule does not foreclose an injured individuals ability to recover.   

Before I discuss the winter rule, remember that when the alleged negligence occurs in the premises-liability context, the applicable duty is determined by the relationship between the landowner and the injured party.  Ohio adheres to the common law classifications of invitee, licensee, and trespasser.  An “invitee” is one who enters the premises of another by invitation for some purpose that is beneficial to the owner or occupier.  A “licensee” person who enters an owner’s premises, with permission or acquiescence, for personal benefit.  A “trespasser” is one who enters property without invitation or permission, purely for his or her own purposes or convenience.  

Usually, the injured party is an “invitee” as he or she was injured in a store parking lot or entryway.   In such cases, the owner owes the injured party a duty of ordinary care to maintain the premises in a reasonably safe condition and to warn them of hidden dangers. Additionally, the owner must also inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use.

However, in ice and snow cases, the winter rule says “no liability will attach to the occupier of premises for a slip and fall occurring due to natural accumulations of ice or snow, these being deemed open and obvious hazards in Ohio's climate, from which persons entering the premises must protect themselves.”   Thus, in Ohio, a property owner has no duty to remove natural accumulations of ice and snow from private driveways, walks, and steps on the premises. “Natural” accumulation is created by meteorological forces of nature including low temperatures, strong winds and drifting snow.   Conversely, “unnatural” accumulation is caused by the intervention of human action doing something that would cause ice and snow to accumulate in unexpected places and ways or, in other words, man-made conditions.

There are, however, common-law exceptions to the winter rule.   The first exception to the winter rule is where a property owner is actively negligent in creating or permitting an unnatural accumulation of ice and snow.  The second exception to the winter rule is where the property owner has been shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his premises has created a condition substantially more dangerous than what the business invitee should have expected in light of generally prevailing conditions, negligence may be proven.   If an injured party can show either exception applies, he or she can prevail and recovery for their injuries.    As such, it is advisable to speak to an attorney immediately following any unfortunate fall.

In addition to the above exceptions, an injured party may also be able to recovery under a theory of negligence per se if there was a statute or ordinance which requires the removal of snow and ice.  Generally speaking, if a statute or ordinance imposes a specific duty on the property owner to keep the their property in good repair, his or her failure to do so may be actionable.   Here is an example of a local ordinance which could provide an avenue to recover for your injuries: 

No owner or occupant of lots or lands abutting any sidewalk, curb or gutter shall fail to keep the sidewalks, curbs and gutters free from snow, ice or any nuisance, and to remove from such sidewalks, curbs or gutters all snow and ice accumulated thereon within a reasonable time, which will ordinarily not exceed 12 hours after any storm during which the snow and ice has accumulated.  

Some municipalities have similar ordinances, others do not.   As such, if you have been injured as a result of a slip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.

Are You Opening Up Your Medical History By Filing A Lawsuit?

Some potential clients are concerned that they are opening up their entire medical history by filing a personal injury claim or lawsuit.   Whatever the reason, you should know that  R.C. § 2317.02 establishes several testimonial privileges that can be asserted to prevent someone with a special relationship to a party (i.e. husband or wife, attorney, clergy, etc.) from testifying in court proceedings relative to communications made to them by the party. One privilege that is codified is the physician-patient privilege. This testimonial privilege is certainly relevant in personal injury or medical malpractice cases.

Specially, R.C. § 2317.02(B) provides that physicians "shall not testify" concerning "communication made to the physician... by a patient in that relation or the physician's... advice to a patient..." unless (1) the patient has waived such privilege or (2) the request falls within one of the exceptions.

One such exception where the physician may testify is where the patient, the estate of the patient (if deceased), or the patient's guardian or legal representative files:

(1)                a medical or dental malpractice claim;

(2)                a wrongful death claim;

(3)                a worker's compensation claim; or

(4)                any other type of civil action (i.e personal injury claim).

In other words, a physician may be compelled to testify in claims where the patient's medical condition is most likely at issue. Reading this you may think that by filing a lawsuit which claims some type of personal injury that you are completely opening up your medical history - the insurance companies and defense lawyers believe this - however, that isn't necessarily true. The Revised Code also provides that a physician may be compelled to testify only related to communications or advice that are related “causally or historically to physical or mental injuries that are relevant to issues..." in the lawsuit.

For example, if you're claiming you sustained a left knee injury during a fall and you previously had your left knee operated on, those records are historically related to the injury at issue. However, if you previously saw a cardiologist, those records are not causally related to your knee injury.

With this in mind, it comes a no surprise that Ohio courts have recognized that while a defendant is entitled to discovery of matters causally or historically related to the injuries at issue, a plaintiff filing a personal injury claim does not open himself up to exposure, without limitation, of all his medical records. Moreover, Ohio courts have found that it is improper to require a plaintiff to execute "general medical records release authorizations" that are not tailored to physical or mental injuries relevant to the issues in the case.

So how are disputes resolved? While every court and trial judge is different, the majority view in Ohio is that the medical records in question should be submitted to the Court for an in camera inspection; meaning the Court will independently review the records to determine if they are historically or causally related. If so, the records will be ordered to be produced to defense counsel. If not, the plaintiff's records will remain private.

If you have been injured by the negligence of another, but are concerned for your medical privacy, contact Scott for a no cost, no obligation consultation and case evaluation.

UYR: Road to Recovery in Slip/Trip and Fall cases

I frequently get phone calls and emails concerning individuals who were injured as a result of a trip and fall or a slip and fall on someone’s property or at a place of business.   Typical injuries range from a concussion to a broken leg or a dislocated shoulder.  Some injuries are quite significant, requiring surgical repair and many months of rehabilitation.   However, just because someone was injured as a result of a fall, does not necessarily mean that he or she has a viable claim for negligence.  In my experience, these types of claims are most always contested and vigorously defended.    

Premises liability – i.e. the liability of the landowner – is a fairly nuanced area of the law.   The purpose of this article is not to delve into every aspect of premises liability (I’ll save some for later) but, rather, to give you a general overview of what is needed to bring (and prove) a viable claim.    

Generally speaking, a slip and fall claim is premised on the negligence of the landowner.   To prevail on a negligence action, a plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.   In slip and fall claims, the applicable duty is determined by the relationship between the plaintiff and landowner: business invitee, licensee, or trespasser.  “Invitees” are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner (e.g. customer at a store.)  A “licensee” is a person who enters another’s property by permission or acquiescence, for his own pleasure or benefit, and not by invitation (e.g. police officer or firefighter.)   A “trespasser” is someone who is upon the premises without consent (e.g. burglar.) 

Most, if not all, inquires I receive are from individuals who would be classified as an invitee.  The duty owed to an invitee is one of ordinary care to maintain the premises in a reasonably safe condition and to warn of hidden dangers. This duty also requires a landowner to inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use. 

In order to prove a landowner breached this duty, the plaintiff must prove any of the following: (1) the landowner, through its officers, employees or agents, was responsible for the hazard (e.g. employee caused a spill); (2) the landowner had actual knowledge of the hazard and neglected to promptly remove it or give adequate notice of its presence (e.g. was notified about spill but did not clean it up); or (3) the hazard existed for a sufficient length of time to reasonably justify the inference that the failure to remove it or warn against it was attributable to a lack of ordinary care (e.g. spill was on floor for sufficient period of time that they should have known about it.)

In most cases, the landowner will claim the hazard was either (1) not unreasonably dangerous or (2) “open and obvious” in an effort to extinguish any duty to plaintiff.  Under the “open and obvious” doctrine, the landowner owes no duty to persons entering those premises regarding dangers that are open and obvious.  The rationale underlying this doctrine is that the open and obvious nature of the hazard itself serves as a warning.  Thus, the landowner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.  However, the question of whether a danger is open and obvious is an objective one, and courts must consider attendant circumstances (i.e. lighting, degree of attention, prior exposure, etc.) as to whether a reasonable person would deem the danger open and obvious.   

If you have been injured as a result of a slip and fall or trip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.