Perspectives: Slip-and-fall cases rise and fall here

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“My foot slipped from under me … but I recovered myself … and I said to myself ‘It’s a slip and not a fall.’”

Abraham Lincoln (Nov. 8, 1864)

During the brutal winter season that mercifully is coming to an end, Minnesotans faced their usual number of hazardous conditions on streets, roads, and other passages caused by icy buildup.

One consequence of that accumulation was more slippery surfaces and, inevitably, more ensuing litigation as well.

But it doesn’t take blustery winter weather to precipitate slip-and-fall litigation here. Going back to the final day of last summer and through this winter, the Minnesota appellate courts have adjudicated a number of these cases.

The series addressed recurring issues of tort law and reached opposite results. The Court of Appeals upheld dismissal of one of them arising out a fall on an icy surface, an outcome that presaged another similar dismissal a few months later.

However, the Supreme Court took a different view and reversed summary judgment in a non-wintry slip-and-fall stairway fatality case and remanded for trial based upon its articulation of “causation” standards for summary judgment purposes. But a similar, but less lethal stairway caused a fall that was deemed lacking in merit and dismissed by the appellate court.

The winding down, hopefully, of this cold, snowy and icy winter provides an opportune occasion to review this quartet of cases, including how they arose and where they fall in the annals of Minnesota slip-and-fall law.

Causation case

The vexing issue of proximate cause was at the crux of a non-weather-related slip-and-fall case involving a wrongful death action arising out of a fatality of a woman who fell down a dilapidated concrete staircase attached to the main lodge building at a lakeside resort in Orr in northern Minnesota on a hot summer day in Staub v. Myrtle Lake Resort, LLC, 964 N.W.2d 613 (Minn. 2021). The lower court granted summary judgment on grounds of lack of proximate cause and the absence of any witnesses who saw how the decedent fell, which prompted the St. Louis County District Court to dismiss the case because a jury would have to “engage in speculation” to determine whether the death was proximately caused by the resort, and the appellate court affirmed.

However, the Supreme Court reversed, holding that summary judgment was inappropriate because a genuine issue of material fact existed as whether the defective stairway “proximately caused [the] fall.” The 5-2 decision, written by Judge Paul Thissen, over the dissents of Chief Justice Lori Gildea and Chief Barry Anderson, focused on the question of causation, with the majority decision reaffirming the “well-established rule” that a plaintiff need not present “direct eyewitness evidence … to establish proximate cause” in a slip-and-fall case, coupled with the “rule that circumstantial evidence [is admissible] to show that a particular condition was one substantial factor in causing an injury.” This tenet comes into play if a plaintiff’s theory is consistent with “alternative, proximate caused theories,” or if the plaintiff’s position is “inconsistent with such alternative theories, but preponderates over those alternative theories.”

The claimant trustee for the next-of-kin that brought the lawsuit had introduced evidence of the resort’s failure to maintain the stair in a safe condition, which was alleged to be the proximate cause of the fatal fall, including testimony that the decedent and her husband had repeatedly complained about the stairway and told the resort that it was unsafe and needed to be replaced. Three witnesses who testified about events surrounding the fall also helped establish, through circumstantial evidence, that the facility may have been negligent in its upkeep obligations.

This constituted sufficient evidence for a jury to reasonably conclude that the degraded condition of the stairs due to “negligent maintenance proximately caused [the] fall and death.” Because there may be more than one “substantial factor,” in other words, more than one proximate cause, the jury must determine that issue, rather than permit the case to be dismissed on summary judgment. Although no direct evidence reflected the reason for the fall, there was ample circumstantial evidence … to argue that … a “[facility’s] negligent act proximately caused an injury.”

The rulings of the trial court and the Court of Appeals that summary judgment was appropriate because no one saw how the decedent began to fall down … “is not the law in Minnesota.” Rather, the case law indicates that a claimant need not proffer eyewitness evidence of a fall to establish liability.

In sum, a jury could reasonably determine that the defective condition of the stairway was a “substantial factor” causing the fall. This determination can be based upon “[l]ife experience and common sense,” two features that a jury may rely on to draw reasonable inference when making a decision. Those factors indicate that the facility’s degraded, cracked and chipped stairway constitutes “a dangerous condition“ that may cause a person using it to fall, even though no one actually saw the fall occur. This is particularly so because there were no other reasonable circumstantial explanations of causation to overtake the claimant’s theory that the fall was caused by the condition of the stairway the only other explanations were speculative, such as the decedent suffered dehydration because “she drank coffee [on] a sunny July day,” when the fall occurred, or that the fall took place because the woman was “startled by a mouse or an owl,” both of which had “absolutely no support in the record.”

The dissent, authored by Justice Anderson, and joined by the Chief Judge Gildea, pointed to a “complete” lack of evidence about the reason for the fall, which amplified that the claimed theory of the case “failed to outweigh the likelihood of other potential causes.”

Upon remand, the decedent’s family would have their day in court, unless the case is settled before it reaches trial.

Another, less drastic stairway slip-and-fall case, decided this winter, yielded a different outcome in Pachicano v. Ward, 2022 WL 274730 (Minn. Ct. App. Jan. 31, 2022) (unpublished). The case arose out of a fall at a Christmas gathering at a house where the claimant formerly lived and had “frequently” used those same stairs.

The lawsuit was dismissed by the Olmsted County District Court on grounds that the defective conditions of the stairs were known and observed and the fall could have been anticipated by the current owner. The Court of Appeals affirmed, holding that the claimant was aware of the severe hazardous features of the stairway, which led to the basement. Because the dangers were “known and obvious” and the homeowner could not “have anticipated the harm” that befell the falling claimant under the circumstances, a reasonable jury could not view the hall as “foreseeable” or “have anticipated [the] fall,” which warranted summary judgment.

PERSPECTIVES POINTERS

Some Cases Favoring Plaintiffs in Slip-and-Fall Cases Without Eye Witnesses

• Majerus v. Guelsow (1962): Decedent found dead near bottom of basement stairway.
• Paine v. Gamble Stores, Inc. (1938): Faulty hand rail caused decedent to fall down stairway.
• Mitton v. Cargill Elevator Co. (1913): Condition, location of steep stairway warrants jury trial.

Ice issues

The “open and obvious” defense also underlay a decision rendered on the last day of this past summer dismissing a lawsuit by a slip-and-fall claimant in Wilbourn v. Creative Homes, Inc., 2021 WL 4256847 (Minn. Ct. App. Sept. 20, 2021)(unpublished).

The incident occurred when a prospective purchaser of a residential property upon leaving an open house in Washington County on a “really cold day” with a temperature of 0 degrees, in Washington County. The woman, after touring the house, fell on a patch of ice that she did not see while exiting through the same front door she had used to enter the house a short while earlier.

The Washington County District Court dismissed the lawsuit on summary judgment, reasoning that the ice patch was “open and obvious.” The Court of Appeals affirmed in a decision written by Chief Judge Susan Segal. The issue, the chief wrote, “focuses on … the scope of [the] duty owed” by the real estate company showing the house, which was a defendant in the lawsuit. Its obligation to use “reasonable care for the safety of all interests” was satisfied because the “ice patch was visible,” as reflected in the testimony of witnesses in depositions.

The trial court’s determination that the “ice patch” would have been objectively visible, and a person with ordinary perception “would have recognized the potential harm comports with the evidence in the record. Because the lower court did not error in determining that the ice patch “was open and obvious,” the claim was barred.

The lower court also did not incorrectly refuse to consider whether the real estate company that was showing the house “should have anticipated the potential harm of the ice patch.” While a warning may be appropriate in certain instances, if the danger is “so obvious … no warning [is] necessary.” In this case, there was no need to warn because the claimant had lived in Minnesota her entire life, was aware of the dangerous ice, had slipped on ice before, had observed packed-down snow near the entrance where she slipped and fell, and she also was aware that it was “very cold” on the day she slipped. Under these circumstances, she could reasonably expect to know the danger of the ice, which made it so evident that there was no duty to warn. In sum, because the “risk” was so obvious, there was no duty to warn of the potential danger, warranting affirmance of summary judgment.

Another slip-and-fall claimant on a lightly snow-covered surface during a “typical” winter day in Minnesota met the same fate in Johnson v. Pulte Homes of Minnesota, LLC, 2021 WL 4516870 (Oct. 4, 2021)(unpublished). The claimant, a real estate agent, was injured while visiting a model home, which precipitated a lawsuit against the facility’s owner that was dismissed on summary judgment by the Hennepin County District Court and the Court of Appeals affirmed.

The appellate court held that there was insufficient evidence regarding how long the ice was under the snow, other than “speculative and conjectural” suppositions. In the absence of hard evidence, there was no genuine issue of triable fact whether the owner of the site had constructive notice of any hazardous condition.

Because conditions “were not out of the ordinary … for a typical January day in Minnesota,” the owner had no “reasonable notice” to take corrective action prior to this incident, which warranted summary disposition in favor of the property owner.

These slip-and-fall incidents in brutally cold winter as well as in more accommodating summer weather, reflect the vagaries of both Minnesota weather and Minnesota case law concerning slip-and-fall litigation.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.