Winter time means slip and fall accidents on account of snow, ice, sleet a slush.
These slip and fall cases can cause serious injuries to innocent visitors to public (or private) spaces.
Think of a parking lot at a school, university, grocery store, or a shopping mall that isn’t properly plowed, sanded or salted. Or perhaps a local gas station that hasn’t been maintained after some serious winter weather.
After a Plaintiff slips, falls, get hurt; begins the rehab process; what happens next? What happens behind the scenes of such a case.
With years of dedicated assistance to serving innocent accident victims across Ontario, Goldfinger Injury Lawyers has seen countless of these cases. While no two cases are exactly alike; they do share a lot of commonalities. Each case is determined on its own set of facts. Many cases can be similar, but NOT the same.
Behind the scenes, your personal injury lawyer will investigate the owner, or occupier of the premises where the slip and fall took place.
This is very important. Naming the wrong party can be detrimental to a case. And sometimes, identifying the right party can be trickier than you might think. There might be a set of leases, sub leases, and sub sub leases which shelter the true owner from any liability. The owner might be a numbered shell company with a foreign office location. The true owner of the property is rarely as it might seem. When things seem like they should be simple (like identifying the true owner of the property), it can get quite complex. This is why a Plaintiff will often see more than one Defendant named in the title of proceedings. A slip and fall case is rarely against one party.
The same rings true for the other parties involved in the maintenance of the property.
There might be a property manager. We often see this with apartment buildings, commercial properties and condominiums. This property manager will need to be named as a Defendant.
The property manager likely retained a winter maintenance contractor. This would be the party responsible for the plowing, sanding, salting, and general winter maintenance at the property. That party will need to be named as a Defendant as well.
It’s entirely possible that the winter maintenance contractor, subcontracted the winter maintenance work to a winter maintenance subcontractor. Or, there might be more than one winter maintenance contractor. All of these things are possibilities and increases the amount of parties involved to defend the claim.
When Plaintiffs start their case, they often think of the case in very binary terms such as “it’s my case against the owner of the property“. One Plaintiff. One Defendant.
This could not be further from the truth.
Not only are there more Defendants than just the owner; but all of the Defendants named will begin to point their fingers at each other to deflect the blame for the accident. What you will quickly see is that all of the Defendants will begin to blame one another; like a game of litigation hot potato. These claims between Defendants are referred to as “crossclaims“. It’s very common for Defendants to launch crossclaims against one another. If Defendant #1 has to pay anything, they will crossclaim against Defendants #2, #3 and #4 seeking contribution and indemnity; meaning a plea to the Court for the other Defendants to pay all, or part of the award.
After the discovery process, Defendants will become more and more vocal about getting released from the action. They will insist that they bear zero liability for the accident, and that the true culprit for the accident is another Defendant. Sometimes this is true and a Defendant is released from the action. Other times, it’s not so true. It’s a bunch of hot air. It all depends on the facts of the case and the evidence.
Winter Maintenance Contracts are Important
When a property owner hires a winter maintenance contractor, it’s important that there be a winter maintenance contract in place. This will identify the scope of work to be performed, the location of where the work is being performed, and contain provisions about who is to indemnify who in the event of a slip and fall or a personal injury claim. In the event that there is no winter maintenance contract, it’s impossible to identify any of these things with any certainty. Often, the evidence and expectations from the property owner; is different than the evidence and expectations of the winter maintenance contractor. We often find that the owner and winter maintenance contractor are not on the same page. Perhaps they would be on the same page if a winter maintenance contract was in existence.
Maintenance Records and Log Notes
Someone who is performing winter maintenance ought to make note of their observations on site, the date of the work performed, the time the work began, the time the work was finished, and what work was done. Without log notes or maintenance records, it’s impossible to establish that any work was done. Judges want to see these notes.
Disputes about location of the slip and fall
Think of the area of a fall as one large map. Each Defendant named in the action is responsible for a fall which took place on one section of the map, but not the other sections. What often happens in slip and fall cases is that there are very serious disputes as to the location of the fall. Depending on the location of the fall, a Defendant may; or may not be responsible to respond to the claim. Lawyers behind the scenes often fight about the location of the fall because much can turn on this.
And then all of the sudden…
Surprise! The smoking gun evidence appears. Years through the litigation, almost by magic, a set of winter maintenance log notes appear! Or perhaps it’s a missing winter maintenance contract. Or maybe it’s a video of the fall itself. Either way, Plaintiffs should be ready for the somewhat magical and surprise appearance of evidence which has appears out of thin air after years of asking for it.