Unlike in many other situation where you may suffer an injury on someone else's property, such as slip-and-fall, trip-and-fall or being electrocuted by an exposed wire, as a plaintiff who suffers an injury while staying at a hotel, you might have legal advantage when making and proving your case. To make as strong of a case as possible against a hotel for the suffered injury you / your attorney should keep in mind the "special relationship" doctrine that comes into play in these types of cases. Establishing a special relationship can make a difference between winning and losing a case and it will certainly affect your ability to settle your claim fairly before trial.  

Indeed, guests and hotel have special relationship. Guests have no time or expertise to identify dangers while hotel owners have the time and resources to do so.  Generally, hotels have a continuous duty to inspect their premises for anticipated dangers, just like landlords of apartment buildings. With respect to common areas and hotel rooms in particular, innkeepers and premises owners are required to perform “reasonably careful” inspections at “reasonable intervals” to learn of dangers not apparent to the eye. Rodenberger v Frederickson (1952) 111 Cal.App.2d 139. In some ways this duty is similar to the obligation that grocery stores have in conducting regular inspections of aisles, maintaining sweeping logs and taking reasonable steps to insure there are no conditions on the floor that would make their customers slip or trip.

​However, in a typical hotel injury case involving a non apparent defect (such as broken shower door, slippery floor, etc...), an argument should be made to distinguish this situation from a grocery slip and fall. A guest of a hotel is particularly vulnerable because he/she doesn't have either time or expertise to detect those types of dangers. A guest obviously cannot be expected to inspect a hotel room before checking in. At the same time, hotel owners and staff are in the best position to ensure safety of their premises, due to continuously maintaining premises and having the resources to protect guests from known and possible dangers. This heightened duty to inspect should be emphasize at every stage of the case, including trial, in order to maximize the chances of winning. 

Under California law any business who has an opening in the floor (like a whole) must cover it or provide a guardrail on all open sides. Toeboards shall be installed around the edges at openings where persons may pass below the opening. While the cover is not in place, the openings shall be constantly attended by someone or shall be protected by guardrails. Title 8, Code of California Regulations section 3212(a)(1).

The above law was successfully applied in one recent case in San Joaquin County, where the Plaintiff was awarded $867,000 for injuries and damages as a result of falling into a hole in the floor. (Payton v Installation Services Technologies, Inc.)  In that case, the victim was a bread delivery vendor of a restaurant who came for regular delivery and fell into a hole in the floor, created by an wiring installer previously.  The hole was unmarked and unguarded in violation of the above law.

​The power of the above section is the fact that violating it makes the Defendant automatically at fault and liable. This makes proving this type of slip-and-fall or trip-and-fall case easier than a typical slip and fall case, where the Plaintiff faces the common challenge of proving notice of the condition (i.e. that the condition that caused the fall was created by the Defendant or that they were aware of it long enough and failed to take reasonable steps to remedy it). A typical example of this more difficult slip and fall case would be falling on a wet floor or a banana peel at a grocery store.
​For more useful information on this please visit our page on how to prove a slip-and-fall injury case.

We are happy to report that on Friday, July 22, 2016, an Alameda jury returned a $280k verdict to our client in a challenging slip and fall case against against the landlord / owner of the apartment building. In that case, a plaintiff was visiting his cousin, who lived on the second floor of the defendants' 36-unit building in East Oakland. As plaintiff was leaving, he slipped and fell on the water that was apparently coming from the adjacent laundry room. Plaintiff fell down the flight of stairs, suffering an ankle fracture. He was taking by ambulance to the Highland Hospital emergency room and later had a surgery. Plaintiff's post-surgery treatment was quite conservative and it was limited to 1.5 months of physical therapy. 

The Defendants argued the main reason or the only reason that Plaintiff fell was the fact that he was intoxicated, due to admittedly drinking between six to eight beers while hanging out with his cousin. They further argued that no water could have possibly come out from the laundry room in question, because it was not operational. Finally, through their expert - biomechanical engineer - the defendants claimed that the fall couldn't have happened the way that plaintiff described it. 

The trial lasted for five days. The juror's total deliberation time was about 6 hours. The jurors mentioned after trial that the most important evidence in the case from their perspective was the fact that the landlord had no documentation whatsoever of any cleaning or maintenance of the premises during the 9 years of owning the property. They also appreciated the fact that the plaintiff was somewhat stoic on the stand and also upfront and honest about drinking and about smoking marijuana illegally.   

I believe this case is a lesson to both plaintiffs and landlords / owners of premises about how important the documentation regarding maintenance  of the property, and especially sweeping logs, is in slip-and-fall and trip-and-fall cases. Here is a copy of this verdict for your reference.  

One critical element in proving a slip-and-fall injury case in California is demonstrating that the owner or other entity responsible for maintaining the property where you slipped and fell was negligent in maintaining that property in a reasonably safe manner. Generally, if, for instance, you are a paying customer at a grocery store,   the owner of that business has a higher duty to protect you not only from the conditions that the owner knew of but also the ones that he had a reason to know of or should have known of, that could create danger of slipping or tripping and falling. In other words, if a reasonable business owner would have known of a certain dangerous condition and would have taken steps to prevent it or fix it, but the property owner in your incident failed to do so, you are likely to be entitled to a recovery.  
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Let's compare and contrast two different slip-and-fall scenarios, one of which is likely to give rise to the property owner's liability for an injury and a valid slip-and-fall case worth pursuing, while in the other case the injured person is unlikely to prevail in his/her case against the property owner:

1. John goes into a pharmacy store and while trying to pick out a shampoo in the hair-products isle, he slips and falls on a spilled hair lotion. The investigation shows that the lotion was spilled when the store's employee was unpacking and placing the hair product on the shelf. The evidence also show that the employee didn't thoroughly clean the area before leaving and didn't put a warning sign in that area as often required or didn't bother to clean the area or ask someone to clean it at all. Under these circumstances, John has a good chance to win his slip-and-fall case against the store, because it was ultimately the store's responsibility to maintain the shopping area in a safe manner and the store's employee was negligent by failing to maintain the safe conditions in the store or warn customers against a dangerous condition.

2. Brad goes into a grocery store and while walking through the magazines isle, slips and falls on blueberry jam that was spilled by a customer 5 minutes before the incident. The investigation reveals that the store has a strict policy of having its employee walk through the store and inspect the floor and the shelves every hour. Under this circumstances, Brad will have a hard time to recover for his slip-and-fall injuries. First, the store owner didn't create the dangerous condition; one of the customers did. Secondly and even more importantly, the store was probably not negligent because it did what a reasonable person would have done to maintain its property by requiring frequent and periodic inspections throughout the store.

For more useful tips, please visit our slip-and-fall injuries information page.

One of the more noteworthy awards in a slip-and-fall case is the jury award of December 18, 2012, to Barbara Ferren. In that case, Ms. Ferren parked her car along the side of the Defendants' property to visit her daughter. When returning to her car and crossing the street, she tripped over a significantly raised sidewalk, which made her body propel forward. To avoid falling on her face, she extended her arms forward when landing on the ground. As a result, Plaintiff suffered humeral neck fracture.

Ms. Ferren's lawyers argued that the sidewalk was raised by the tree root underneath it, and that the owners of the property had the duty to inspect and maintain the same property and repair, that they knew that it was dangerous condition but failed to repair it. The Defendants of course denied any liability.

Two facts make this case particularly interesting. First, the Plaintiff in that case was claims adjuster herself. Thus, she knew how insurance companies operate when it comes to settling/fighting injury claims. Secondly, and somewhat unusually, despite the serious objective injury and the likely need for surgery confirmed by the plaintiff's doctor, the Defendants didn't offer any amount to settle the claim prior to trial. This goes to show that although insurance companies are quite experienced in evaluating claims and their potential exposure to liability, they can be completely off and out of touch with a jury's view of the case.

A landlord must conduct reasonable, periodic inspections of rental property whenever the landlord has the legal right of possessions. Before giving possession of leased property to a tenant, a landlord must conduct a reasonable inspection of the property for unsafe conditions and must take reasonable precautions to prevent injury due to the conditions that were or reasonable should have been discovered in the process. The inspection must include common areas under the landlord's control.   

After a tenant moves in and/or takes possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the landlord's control if the landlord knows or reasonable should have known about it. (CACI 1006).     

To make a premises liability injury claim due to unsafe conditions on the rented property, the tenant-claimant must show that the landlord was negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the landlord knew or, through the exercise of reasonable care, should have known about it; and (3) the landlord failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI 1003). 

To establish a landlord's negligence and impose liability for injuries suffered due to the defective condition of the premises, the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to those on his premises. The owner's negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. Louie v Hagstrom's Food Stores, Inc. (1947).

One kind of injury cases in which claimants and their attorney miss on a significant elements of recovery is potential punitive damages in a premises liability case. Imagine a situation, where a claimant trips and falls on a condition a property that has been existing for a while, and as to which the land owner has been alerted several times in the past. The owner failed to take any action to fix the condition for one reason of the other, which lead to the subject injury.    

Under the law, punitive damages are available in premises liability cases, where the client can show that the defendant-owner performs or fails to perform an act that he know or should know will probably cause harm. Nolin v. National Conveniences Stores, Inc. (1979)  In Nolin, the court found that the defendant's inattention to slip-and-fall danger "reflected defendant's overriding concern for a minimum expenses operation, regardless of the risks involved". Likewise, in Stoiber v Honeychuck (1980), the court concluded that the plaintiff was able to support her punitive damages allegations where she alleged that the defendant had actual knowledge of defective conditions in the premises, including leaking sewage, deteriorated flooring, failing ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. 

It is often worth conducting at least a minimal investigation in a slip and fall / trip and fall cases where a claim for punitive damages can be made. The first step should be finding out whether prior similar complaints or notice of the condition were given to the land owner or their agents, and what, if anything, they have done to remedy those issues. 

Slip-and-fall claims are traditionally challenging cases for the injured to prove. Even the most serious injuries resulting from slip-and-fall incident at a retail store or any other property do not guarantee results as the standard of proving liability on the part of the owner/operator of the premises is higher than in other negligence cases, such as auto accidents. 

However, there are a few things that every victim of slip and fall injury can and should do in order to increase his/her chances of successful recovery for the injuries sustained:

1. Keep your shoes and other clothing that can be evidence of the incident and the injuries. One of my clients suffered severe injuries after slipping and falling on an oil spill. He contacted me weeks after the incident. Unfortunately, he through away his pants that had both, oil stains and a hole, that showed how hard he fell. Not having that evidence made proving his case more challenging and inevitably reduced the value of your case. If you are involved in a slip and fall injury, make sure that you keep your shoes and pants that you were during the incident without cleaning them or otherwise altering them. Your pants will prove your fall and will also have traces of any substance or defect that caused your fall. Your shoes can be evidence negating the argument that you feel because your shoes were too slippery. 

2. Gather witness information. Juries and judges are traditionally skeptical of slip-and-fall injuries. This means that there is a particularly high burden on the victim to show his credibility. Being able to contact witness of the incident, if any, and getting their written or oral testimony is very important to proving the circumstances of the incident at or before trial. Make sure you obtain contact information and names of any witnesses that saw how you fell or helped you immediately after you were injured. 

3. Make a Report with the Owner of the Premises. Whether you fall at a retail store, or a parking lot or anywhere else, make sure you report the incident to the staff at the premises, request that they make some kind of written notation of the incident and give you a copy of that writing along with the information of the persons who you can speak with about your claim later.