Falling Does Not Speak for Itself When it comes to Negligence

Submitted by Personal Injury Lawyer, Jeffrey Hark.

Ortiz v. Bernal, decided June 2, 2014 by the Superior Court of New Jersey, Appellate Division, is a good opportunity for this blog to review some principles of tort cases, specifically slip-and-fall cases. In this case Ortiz, who had slipped and fallen at the Elegante Cafe in Camden, appealed from a summary judgment in favor of the Defendant. The Elegante Cafe becomes a nightclub in the evening and has strobe lights, dim lighting, and artificial fog. Ortiz tripped while dancing and blamed it on metal trim located on the side of the dance floor.

Assumption of Risk

But, assumption of risk is a principle of tort law. This means that there are some activities that have inherent risks and if someone engages in them they are assuming liability for that risk. For example, one may say there is an assumption of risk of serious injury in recreational skydiving (although other liabilities likely exist). There is an assumption of risk when someone dances in a crowded nightclub, especially when they may be wearing shoes that are difficult to maintain balance in. The Appellant in this case did not keep her shoes from the night of the accident.

Negligence in Slip and Fall

Despite assumption of risk, negligence can still be demonstrated but there must be more evidence than a fall itself. There is a doctrine called res ipsa loquitor or negligence that speaks for itself. An example of res ipsa loquitor would be if someone walked on an open sidewalk underneath a construction site and scaffolding fell onto them. The duty of the construction workers to be careful on behalf of pedestrians and the breach of that duty would be so apparent that the accident itself may prove negligence. Slip-and-falls are not such cases. In Ortiz even though the judge made every inference in her favor, which is mandatory, there still is no evidence of negligence and Ortiz bears the burden of proving that the Defendant breached a duty of care owed to her.

Mode of Operation Liability

The Appellant invoked Campbell v. Hastings, 348 N.J. Super. 264 (App. Div. 2002), a case concerning an elderly person who fell into a sunken foyer. But that case concerned a social guest and there was a question as to the existence of a duty. Business owners undoubtedly owe a duty to their patrons. But, while it is true that businesses owe a duty to invitees (patrons) who enter their premises, they usually are not liable for injuries caused by defects for which they had no actual or constructive notice. Here there is no evidence of a defect nor notice. The Appellant also invoked Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558 (App. Div. 2014), a case which this blog wrote about on May 2nd concerning mode-of-operation liability. This refers to liabilities arising out of allowing patrons to handle products or services without employee assistance.

But this clearly does not apply in the case of falling at a nightclub. There is one final fatal mistake that the Appellant made in trying to prove her case. She never sought the report of an expert to look at layout of the nightclub. For these reasons summary judgment in favor of the Defendant-Respondent was affirmed.