On February 17, 2008, Lori exited a retail store in Kennesaw, Georgia after having made a purchase. As she walked toward the parking lot in a light rain, she stepped on a painted handicapped ramp just outside of the store.
Unbeknownst to Lori, when it rains, the painted portions of these ramps became extraordinarily slippery and dangerous. In the year before Lori’s fall, as many as six (6) other individuals had fallen in the rain on this same ramp or similar painted ramps at this shopping center. One of these individuals also broke her leg; another sustained a concussion.
Almost three months before Lori fell, the tenant had notified the landlord / property manager that the painted areas of the ramps were “hazardous” and in need of immediate repair based on repeated customer complaints. More than a month prior to Lori’s fall, the tenant even issued a written notice to the landlord / property manager informing it that the painted areas of the ramps were in need of repair as a result of the repeated customer falls. The tenant further stated that the landlord / property manager was obligated under the leasing agreement to make these repairs promptly. But the landlord / property manager implemented no repairs or modifications to the ramps until weeks after Lori fell. Nor did the landlord / property manager implement any safety measures such as warning signs.
A month after Lori’s fell and after all of the attempts by the Defendants to remove the hazard, another customer fell on the painted portions of the ramps, establishing that, despite the attempts of the Defendants to remove the hazard, it continued to exist even weeks after Lori’s fall.
Lori’s fall was caused by the negligence of the landlord / property manager and the tenant. As a result, Lori suffered painful physical injuries. The fracture required extensive surgery that involved the implanting of permanent hardware to address two separate and distinct fractures:
Weber-C Bimalleolar Ankle Fracture
Ankle Fixation Surgery leaves permanent scarring on both sides of Lori’s ankle.
Sometimes, filing suit is the only way to fully discover the extent of the defendants’ negligence. At first blush, many lawyers would blame Lori for this fall and be concerned about the application of the comparative negligence doctrine, which, in Georgia, provides that the injured party cannot recover if they are equally at fault for their injuries. Only by filing suit were we able to learn of the numerous previous falls and the inexplicable inaction on the part of the defendants. These discoveries led to the addition of claims for punitive damages and attorney’s fees.
Initially, the defendants refused to take responsibility for their negligence and attempted, instead, to blame the painting contractors, alleging that they had failed to utilize the appropriate additive that would increase traction for pedestrians. We argued that an owner and occupier of land cannot allocate fault to third party contractors because the duty of the owner and occupier to maintain their premises and approaches in a safe condition is a non-delegable statutory duty. In other words, if the painting contractor was negligence, then the owner and occupier are still legally liable for that negligence.
By pressing towards trial and fully preparing the case, the defendants were forced to fold. Ten months after their early low-ball offer of $18,000, they agreed to settle the case without a jury trial for $350,000. Given the fact that Lori’s medical expenses only totaled $16,500 and that she had no permanent orthopedic problems, a settlement for this amount was an extraordinary result.
