NeuwirthLawCase Matters, Courts, Slip and Fall, Sue The City

I just finished a three-day bench trial in federal court in the Eastern District of Pennsylvania (EDPA). The facts of the case in brief were that a 68-year-old woman went through a TSA checkpoint at Philadelphia International Airport, removed her shoes, and slipped and fell on the terrazzo marble-type flooring after she was cleared to pick up her belongings. The fall was captured on video. The client plainly steps off a rubber mat and her sock covered foot just slips out from under her. She breaks her knee and has surgery and lifelong pain and suffering. The defendants were the City of Philadelphia, which owns the airport, and your friends at TSA, represented by the U.S. Attorney’s office and/or the Department of Justice.

Under the Federal Tort Claims Act (FTCA), a plaintiff is not entitled to a jury trial, so this was tried to a judge. We call these bench trials. This was my first bench trial and while it took about half the time a jury trial would have, we still got through a lot of testimony in a short period. The preparation is the same. Amusingly, the time spent on trial was very compressed because it was a bench trial. If this trial had been to a jury, it would have taken a week and a half. We worked through four defense witnesses, two plaintiff’s witnesses, two orthopedic surgeons, and two flooring experts.

A few impressions on this case. First, it is and was a strong case in a lot of respects. A fall on video in a commercial establishment is hard to rebut or dispute. There are always issues with any case that goes to trial.  Here, there were disputes between the defendants over who was responsible for the flooring and allegations that there was no notice of the slipperiness of the flooring. I don’t or didn’t care about who was the owner or possessor of the flooring, as it was not my issue.  I had an opinion on it, but it really did not change the obligation of the defendants towards my client. The notice issues were more interesting. The floor did not comply with any building codes because socks on marble is not an expected, intended, or acceptable use. Further, commercial landlords have a duty to inspect for dangers and plainly TSA did not do so. But, to sue the City requires notice and the City always argues notice. I believe that there was plenty of notice here, but it is an issue in the case. The City plainly knew that TSA was requiring people to walk in socks on terrazzo. The City’s expert and the City’s custodian both acknowledged that that was an unsafe situation that they would be concerned about. To me, the failure to investigate from there is negligence.

Amusingly, the video provided to us by TSA happened to show other younger people slipping and almost falling in their socks at the checkpoint. The younger people were able to catch themselves and my client was not because she was older. Personal injury law says you are not permitted to blame the injured person for their pre-existing conditions like age, brittle bones, etc. If you were not negligent, it would be safe for all travelers, which is the TSA mission.

Second, there were offers to settle the case which were rejected as inadequate in my opinion and were rejected with the client’s approval. So, we are rolling the dice a little here.  Educated risk taking is part of my job.

The case was also interesting because the federal government was unable to find an expert to say that the flooring was safe. The City hired an expert to say that the floor was safe for people with shoes, but that it was not safe for a person in socks. So, you have two experts saying the floor is unsafe for people in socks and no defense expert saying it is safe. Weird, right? The case should normally settle, but as I said in my opening and closing arguments, we are not dealing with normal defendants.

The FTCA says to treat TSA as any private landlord or property owner would be treated. So, no special favors or considerations because they are the feds. So, a slip and fall on video where the Ritz Carlton hotel made people enter the hotel in socks and people were slipping and falling on video is not a defensible case and would result in a large verdict. But, here, the feds have the benefit of no jury and a bunch of unusual immunities that the Ritz would not have. In reality, the Ritz would have been begging to settle the case and it would never go to trial. Here? We shall see. We must wait at least 60 days to hear from the Court on their verdict. It’s a long time to wait, but the hard work is done.

Finally, there is always the reminder to me and future clients of the cost of trial. I try about two cases a year, year in year out. Trial expenses, if you win, take a big bite out of a client’s ultimate payout. Here, I think I have spent about $15,000 or more just in experts, tech support, transcripts etc. If we lose, I eat the costs and the client gets nothing. If we win, the client pays those costs. So, in considering settlement amounts, I always explain to clients that we don’t quibble about gaps between the parties of $25,000 or less because the trial will eat that up in the blink of an eye. Nevertheless, it’s always a good reminder for me.

So, I am tired, and my office is a mess and I broke my printer and burned through a lot of paper and toner. I will let you know how things turn out.