Case Law

Falls Deaths in the USA: a 9/11 Every Six Weeks

The National Safety Council’s (NSC) latest published statistics show that falls are causing 28,000 deaths in the USA annually (see p. 19 of their report). This is the equivalent of a 9/11/2001 attack every six weeks, all year long. Moreover, falls deaths are approaching motor-vehicle deaths. Safety Direct America offers products and services that can prevent slips and falls.

Road deaths have been decreasing as vehicles add more safety features, such as side air bags, collision warning systems, automatic brakes, and improved crash test and rollover test results. Legendary investor Warren Buffett worries that self-driving cars will eventually reduce accidents enough to devastate the profits of some of his insurance company investments. (Accidents are good for the insurance industry as long as they are predictable enough to incorporate into each client’s premiums.) Safety features have decreased fatalities enough to more than make up for increased cellphone use (conversations and texting), which is involved in 26 percent of crashes.

On the other hand, fall deaths are increasing largely because Americans are getting older. Older people are more susceptible to falls, and less likely to recover from their injuries. Osteoporosis can cause brittle bones that shatter on impact, requiring surgery — with infection sometimes a side effect. Hip replacements too often set off a downward spiral that results in premature death within a year after the fall. About 84 percent of falls deaths are people over 65 (p. 62, NSC). These falls are more often in commercial spaces than in the workplace. Lest we blame the victim, remember that many of the elderly are protected by the Americans with Disabilities Act (ADA). An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

The NSC graph below shows the deaths trends. (Click on the graph to see it at larger size.) Poisonings, including those from unintentional opioid prescription painkiller, heroin and cocaine overdoses, are also a major and increasing cause of deaths that affect the young and middle-aged more than seniors. Homicides (not shown) get lots of headlines and television dramas, but falls cause nearly twice as many deaths (p. 86 of the NSC report).

Trends in leading causes of death

The NSC’s statistics also show falls as by far the leading cause of medically consulted nonfatal injuries: 13,000,000 in the most recent year reported, accounting for 35 percent of the injuries. This is an average of 17,800 injuries that need treatment to Americans from falls every day.

Medically consulted nonfatal injuries

Slips/trips and falls account for many of the falls deaths and injuries. Safety Direct America can help prevent these injuries by (1) testing flooring for sustainable wet slip resistance before it’s installed; (2) treating existing floors chemically to increase wet slip resistance; and (3) monitoring slip resistance periodically at commercial and industrial properties to ensure that good slip resistance is being maintained. We are dedicated to preventing costly life-changing or fatal accidents. Phone Safety Direct America at 1-800-988-6721 or see SafetyDirectAmerica.com for more information.

The 2012 International Building Code (IBC), by reference to ANSI A137.1, requires a minimum wet dynamic coefficient of 0.42 of friction for level indoor flooring that gets wet in use, but does not define what a safe level is — it only says that many other factors need to be considered. (The test is conducted using the BOT-3000E tribometer.) We fill that gap by using detailed, accepted situation-specific standards that are tailored to everything from outdoor steep ramps to swimming pool decks to hospital bathrooms. There is no useful “one size fits all” safety standard for non-slip flooring.

Sheriff Joe Arpaio Sues Building Owners Over 2013 Slip-and-Fall That Broke His Arm

Arpaio filed a slip-and-fall lawsuit last week in county Superior Court against the owners of the 2 Renaissance building at 40 North Central Avenue in downtown Phoenix, blaming his fall on “an unreasonably dangerous and improperly maintained walkway.”

With the help of ex-County Attorney Andrew Thomas’ attorney friend, Mark Goldman, the sheriff’s alleging one civil count of negligence and is suing for damages including medical expenses.

“Breaks in the walkway’s surface” that were not maintained properly by the building’s owners, Hines GS Properties, led to “dangerous conditions” that resulted in “permanent injuries” to the sheriff, the lawsuit states.Arpaio had been walking to get a bowl of soup for lunch on February 28, 2013 when he tripped and fell, breaking his arm in two places. Despite speculation that the then-80-year-old might suffer from complications, Arpaio was back at work after a couple of weeks.

Arpaio seeks “compensatory, general and special damages” in addition to having his medical bills covered.

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Appeals court allows Plainfield woman to continue slip-and-fall lawsuit against Wal-Mart

SOMERVILLE — A Plainfield woman won an appellate decision this week that allows her to continue a lawsuit against Wal-Mart after she allegedly slipped and fell on water in a Watchung store in July 2010.

A state appeals court on Tuesday reversed a Superior Court decision that dismissed the complaint by Marina Andara. The appellate judges said a jury could conclude that Wal-Mart “knew or should have known of the dangerous, slippery condition and that it posed a hazardous condition for customers,” according to the decision.

The appellate decision means the case is returned to active status for either a future settlement or trial, said Andara’s attorney, Robert Rosenbloom. He said the decision indicates the matter should have gone to a fact-finder, which in most such cases is a jury.

“This is within the province of a jury,” Rosenbloom said. “It’s not for a judge to yank.”

“We take customer safety seriously and work hard to provide our customers a pleasant shopping experience,” Wal-Mart spokesman Randy Hargrove said in a statement. “We disagree with the appellate court’s ruling. We followed company policy and believe a jury will reach the same conclusion as the trial court which ruled in our favor.”

The incident occurred July 9, 2010, when Andara walked to the self-service checkout area to pay for a soda and slipped and fell, according to the appellate decision. Another customer alerted a cashier, who put down paper towels to absorb the water on the floor, the decision states. A Wal-Mart surveillance video confirmed Andara fell as she claimed, the decision states.

Rosenbloom said Andara suffered injuries to her shoulder, neck and lower back. The lawsuit was filed in July 2011, and the Superior Court judge dismissed the complaint in October, Rosenbloom said.

Superior Court Judge Richard Plechner found there wasn’t enough evidence to show negligence on Wal-Mart’s part, according to a court transcript. Plechner said “they couldn’t station someone in every few feet around the store watching for somebody to spill some water” from a bottled beverage, the transcript shows.

To dismiss the complaint in Superior Court, Wal-Mart provided an affidavit of an employee who said that “’(a)pproximately 5 minutes prior to’ plaintiff’s slip and fall, she ‘had walked through the area where plaintiff slipped, and there was no water on the floor,’” the appellate decision states.

But the appellate judges determined the surveillance video confirmed the cashier was in the area five minutes before the fall, but does not necessarily suggest she actually inspected the area. “She simply walked through,” the decision states.

The video also does not show anyone spilling liquid on the floor in that area for at least an hour before Andara fell, meaning the slippery condition existed for at least that period of time, according to the decision.

The evidence “would support a finding that Wal-Mart had constructive knowledge of the slippery condition,” the appellate judges wrote.

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Regulations |

The New B101.1 Floor Safety Standard

The Creation of a New National Standard
In 2006, the NFSI was awarded the distinction of being accredited as a Standards Developing Organization by the American National Standards Institute (ANSI). Since that time, the NFSI/ANSI B101 Committee on the Prevention of Slips, Trips and Falls has been working on a number of floor safety standards, including the newly released B101.1 standard.

NFSI’s approach to slip-and-fall prevention was different from what was previously employed. Because approximately 80 percent of all slip-and-fall accidents occur on wet walkways, it seemed only reasonable to test walkways when wet rather than dry. Secondly, intuition tells us that low Coefficient of Friction (COF, also referred to as mµ) walkways are more slippery and therefore more likely to induce a slip and fall than are high COF walkways, but exactly how much slip resistance is required to prevent a slip and fall is not always clear. So rather than simply categorizing walkways as safe or unsafe based upon a single COF value, the ANSI/NFSI B101.1-2009 standard identifies three individual risk categories, or “Traction Ranges.”

Based largely on the two OH&S case studies, NFSI found that walkways whose wet SCOF was a 0.60 value or greater reduced slip-and-fall claims by as much as 90 percent, while walkways with values below a 0.40 contributed to the largest number of slip-and-fall claims. Walkways that possess a wet SCOF of 0.60 or greater are defined by the B101.1 standard as “High-Traction” and present the least amount of risk for a slip-and-fall claim. Walkways whose wet SCOF is below a 0.60 but greater than a value of 0.40 are defined as “Moderate Traction,” and walkways which possess a wet SCOF of less than 0.40 are defined as “Low Traction.” Simply put, High-Traction walkways present the least amount of slip-and-fall risk, while Low Traction walkways present the highest risk for a slip and fall. This unique approach of quantifying the wet SCOF to that of a risk category will serve as a valuable risk assessment and management tool for risk and safety professionals.

Wet SCOF Value Available Traction Remediation
mu 0.60 or above High Traction — lower probability of slipping Monitor SCOF regularly and maintain cleanliness
mu less than 0.60 but at or above 0.40 Moderate Traction — increased probability of slipping Monitor SCOF regularly and maintain cleanliness. Consider traction-enhancing products and technologies.
mu less than 0.40 Minimal Available Traction — higher probability of slipping Seek professional intervention. Consider replacing flooring and/or coating with high-traction products.

How Will This Affect You?
It is important to note that for the first time in American history, property owners can now be held accountable for the slip resistance of their walkways. In the past, there was no nationally recognized safety standard by which property owners could accurately measure the slip resistance of their walkways, which made it difficult for many industries that experience a high level of slip-and-fall accidents to identify the underlying problem — that being a slippery floor. That has now changed with the release of the ANSI/NFSI B101.1-2009 national standard.

The NFSI/ANSI B101.1-2009 “Test Method for Measuring Wet SCOF of Common Hard-Surface Floor Materials” is certain to change the way property owners, safety professionals, and insurance companies address the growing problem of slip and fall accidents.

Like most ANSI and ASTM standards, the ANSI/NFSI B101.1-2009 standard is not law mandated by any government agency, but rather is a risk management tool that property owners can use to manage their slip-and-fall risks. Property owners who choose to comply with the B101.1 standard may see immediate cost-saving benefits, while companies that choose not to comply may not reap the full level of cost savings and are at risk of having the standard used against them in a slip-and-fall lawsuit.

But don’t be fooled by the voluntary nature of this standard. A property owner’s choice to comply or not to comply may play a big factor in the outcome of a slip-and-fall lawsuit. Companies that are seen as being in compliance will find their legal defense bolstered, while those that do not are at greater risk of losing their lawsuit.

Most slip-and-fall lawsuits are based on the premise that a property owner failed to provide a reasonably safe walkway, which in turn resulted in the plaintiff’s slip and fall. Although the plaintiff has the burden to prove the floor was unreasonably dangerous, the defendant often finds itself in the position of having to prove its walkways were safe. The easiest way to do so is to have them tested. If you don’t, the jury may ask why not — what are you trying to hide? Perhaps you simply didn’t care enough to protect your employees and invited guests.

The growing problem of slips and falls has become too big to ignore. Having represented more than 400 plaintiffs and defendants in slip-and-fall lawsuits, I have often found that many business owners consciously chose not to establish clear slip-and-fall prevention policies or guidelines, believing that ignorance or denial would somehow serve as their defense. Statements such as “I don’t want to know if our walkways are slippery because then I will have to do something about it” or “As long as we keep wet floor signs out all the time, then we are not responsible for someone slipping and falling” are commonplace in many businesses. Needless to say, property owners who have clung to these philosophies may want to reconsider their approach to slip-and-fall prevention. Burying your head in the sand will no longer be a place of safe refuge.

OSHA, ANSI and ADA Regulations for Walkways and Surface

The OSHA Standard 29 CFR 1910 Subpart D is the standard that discusses non-slip walking surfaces. According to Slip, Trip, and Fall Prevention by Steven Di Pilla

“OSHA refers to four separate slip resistance standards, each promulgated at different times and with varying degrees of enforceability.”
Just like all governmental regulations these Standards are in a state of constant change and evolution, however we reviewed all of the references to nonslip and made sure that our nonslip products meet the intent of the Standards and the specific requirements discussed. The most specific “standard” cited by OSHA is in Appendix A to Subpart D — Compliance Guidelines which is called a “nonmandatory” appendix. In this appendix section 2. Slip Resistance. It states:

“2. Slip-resistance. A reasonable measure of slip-resistance is static coefficient of friction (COF). A COF of 0.5, which is based upon studies by the University of Michigan and reported in “Work Surface Friction: Definitions, Laboratory and Field Measurements, and a Comprehensive Bibliography,” is recommended as a guide to achieve proper slip-resistance. A COF of 0.5 is not intended to be an absolute standard value. A higher COF may be necessary for certain work tasks, such as carrying objects, pushing or pulling objects, or walking up or down ramps.”

ADA (Americans with Disabilities Act)

The ADA discusses ground and floor surfaces in Section 4.5 where they say in general that:

“4.5.1* General. Ground and floor surfaces along accessible routes and in accessible rooms and spaces including floors, walks, ramps, stairs, and curb ramps, shall be stable, firm, slip-resistant, and shall comply with 4.5.”

Specifically the ADA discusses Coefficient of Friction requirements in Appendix A4.5.1:

“The Occupational Safety and Health Administration recommends that walking surfaces have a static coefficient of friction of 0.5. A research project sponsored by the Architectural and Transportation Barriers Compliance Board (Access Board) conducted tests with persons with disabilities and concluded that a higher coefficient of friction was needed by such persons. A static coefficient of friction of 0.6 is recommended for accessible routes and 0.8 for ramps.”