By Christian Stegmaier
(cstegmaier@collinsandlacy.com)
The weather folks are projecting snow for most portions of South Carolina tomorrow (Tues, Jan. 20). Along with inclement weather comes the increased chances of slip and fall incidents in the retail/hospitality setting due to the greater presence of moisure on walking surfaces. Accordingly, we take this opportunity to reprise a client advisory from 2005 regarding slip and fall cases arising from inclement weather:
Slip and fall incidents are the bane of the retail industry. Often, these incidents arise on days with inclement weather when floors at entrances can accumulate moisture due to patrons and employees tracking water in from the outdoors. Not surprisingly, claimants (and their lawyers) frequently take the position the establishments where the falls occurred are completely responsible for the subsequent alleged injuries and demand high dollar recovery.
When making these demands, these claimants often close their eyes to the fact they knew the weather was inclement and that common sense and experience would tell them precipitation sometimes gets tracked inside and may be in their pathway. In other words, these claimants ignore the fact water on the floor during a rainy day is an “open and obvious” condition, which they should have taken steps to appreciate and avoid.
Within recent times, the federal district court for the District of South Carolina issued a decision, which gives teeth to the “open and obvious” defense in inclement weather slip and fall claims. This opinion, Hackworth v. United States, 366 F. Supp. 2d 326 (D.S.C. 2005), may prove to be of great assistance to retailers and hospitality-related establishments defending these type of claims.
In Hackworth, the federal district judge recognized that recovery for injuries arising from an “open and obvious condition” is not permitted in South Carolina. The judge further held that rain water at the entrance of a store on an inclement day is an “open and obvious condition.” As a result, the claimant was precluded from recovery via the defendant’s motion for summary judgment.
Hackworth demonstrates a court’s recognition that there are hazards that sometimes appear — such as precipitation from inclement weather — which are out of the control of retailers and also constitute obvious conditions that a reasonable customer of ordinary experience should anticipate and avoid. Hackworth is a welcome decision for retailers in an era of increasing litigiousness by personal injury claimants.
