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October 9, 2023
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We have all pulled on a thread, and kept pulling, and kept pulling until we have four feet of thread balled up in our hands. “What did I just do to my sweater?” In litigation, we have to pull the thread and see where it leads.

In a recent case where Brendan Lupetin and Maggie Cooney got a tremendous verdict for their plaintiff personal injury client, they pulled on a thread that revealed a critical document that helped win the case. I got to sit down and talk with Lupetin about how they got to that document and dealt with other issues to change their case.

It was a slip and fall case. We all know those can be tough. Jurors may come into those cases with interesting ideas. In focus groups we hear them wonder:

• “Is there any way they could have planned this?”
• “Is this guy a professional faller?”
• “I would never have slipped like this, I’m careful … not like this guy.”
• “Do you think he was even where he said he was and did he even fall?”

On top of those preconceived notions, we have as part of the legal proof that the defendant must have had notice and an opportunity to fix the dangerous condition. Finding facts can make getting past summary judgment a real accomplishment.

The plaintiff’s lawyers in the case thought they had some good ways to combat questions about the credibility of their client, but they were searching for notice. More importantly, from a “jury proof” perspective, the lawyers knew it would be best if they could find a prior, similar incident (something focus group jurors always ask about). Plaintiffs counsel made the inquiry through written discovery and were told that there were no previous incidents. Deposition after deposition they would ask, “Do you know of anyone else who had a fall in the same area.” They heard no after no. Then a hint, they were taking the deposition of the custodian for the section of the facility where their client fell and the custodian said he himself had slipped and fallen when the floor was wet. He knew it was wet, had slip resistant shoes on, and he still went down.

Persistence finally paid off when another witness answered the question, “Yes.” She was a fact witness and nurse who worked for the defendant. She had fallen two years before the plaintiff’s fall. The facts were eerily similar. Wet floor. Slip and fall. No wet floor sign. Follow up questioning from the plaintiff’s counsel: Was there an incident report for what happened to you? After hemming and hawing, the witness admitted there was an incident report.

Now, this is a reminder for all of us who try cases. The plaintiff’s attorney had notice. There was testimony on the record that the property owner knew about a prior slip and fall of similar kind. Check, mark it done in your mind? They did not leave it at that. The plaintiff’s counsel went back and did a written discovery request based on deposition testimony to get the incident report. This is a practice pointer for all of us to take to heart. Be the diligent lawyer who pulls on the thread you are given. How did this change the case? The request for production resulted in the incident report from the similar prior fall the witness described. It gave the facts of what happened. But there was a large section redacted. Lupetin had his client’s incident report and the same section was redacted. The Judge had reviewed that document in camera and determined it was not the type of evidence that was fair to disclose and had left it redacted. The plaintiff’s counsel wanted to know what was under there from the prior incident. They filed a discovery motion for the disclosure of the whole document. The court considered the unredacted version and determined it was germane to the case. When the black box was lifted from the record, it showed the facility had recognized the wet floor was a hazard and indicated an action plan to put up signs while the floor was being mopped, not just afterward. It was very relevant because the main claim in the case was a failure to warn. When the opposing side makes a statement about its duty and then fails to meet the standard it set for itself, that changes the case.

The plaintiff’s counsel was also able to alter the time and opportunity message, which can plague a slip and fall case. Problem: even if the defendant had notice of a hazard, jurors want to know, “What did you want them to do in the amount of time they had?” Consider, one customer in a store spills water on the floor and 30 seconds later an unsuspecting fellow customer slips and falls in it. Was that sufficient time for the store to have recognized the problem and done something about it? Sure, the plaintiff had little time to protect themselves, but the store had a similarly short time. The time and opportunity comparison in Lupetin’s case changed dramatically with the discovery of the prior incident report’s action plan. Years before the doctor walked into this operating room, it was known the floor was slippery when wet and warning signs needed to go up. For years, the procedure was recommended by the facility. It had plenty of time to train; plenty of time to supervise to make sure the action plan was carried out; plenty of time make warning-of-danger part of its culture. Now the jury could compare: failure over a long period of time versus seconds the plaintiff had to judge whether there was danger. That changes the case.

A plaintiff cannot be a frequent flyer. The plaintiff’s counsel had to deal with the concerns the normal juror might have about a serial plaintiff. The slip and fall case is so much better when a plaintiff has never brought a claim in the past. Ask this question at intake—have you ever filed a personal injury lawsuit before this case? Ask the plaintiff’s spouse. Ask your before and after witnesses. In this case, the plaintiff’s counsel did all of those and his plaintiff was in the clear. He asked the question with his client in the witness box and the jury heard undisputed testimony the plaintiff was not a repeat offender. That changes the case.

A careful plaintiff is a worthy plaintiff. In their case, Lupetin and Cooney were also concerned jurors might feel a cautious person would have recognized the dangerous condition and avoided falling. They queried their client and learned about the manner in which the plaintiff was most particular. He happened to be an oral surgeon and described at great length the ways in which he was nearly obsessive about the details when he was in surgery. The people that worked with him described his careful nature when he was operating. Over the course of testimony it became clear that this was a person who paid attention to detail. In this case, even a person who paid careful attention to detail did not recognize the danger and was unable to avoid it. This theme ran through questions in voir dire. Testimony during the trial made it real. And, in closing, Lupetin was able to talk about the careful, detail-oriented nature of the plaintiff and counteract a juror’s tendency to fault the plaintiff for being careless. That changes the case.

Who’s making frivolous claims here? Once the facts are developed and the plaintiff can see the path to convincing the jury, there is one final method Lupetin employed which bears consideration. The public is far more aware of frivolous lawsuits than the bulk of cases plaintiffs attorneys bring which are meritorious. But are there frivolous claims, sure. It is a dangerous word, but plaintiffs counsel leveraged it to their client’s advantage. He asked which jurors were concerned about frivolous lawsuits during voir dire. He promised in opening he would show the jurors this was not a frivolous claim. He was confident he had the evidence to prove it. Once the case was in, he reminded jurors of his promise and explained how they had shown this case had merit. Then, the judo throw: it was the defense in this case which was frivolous. The jury should hold them responsible for their frivolous defense and repay the full damages which were taken from the plaintiff. That changes the case.

The diligent and methodical attorney can doggedly follow a lead to make their case more persuasive, not just of prima facia quality. It is possible to recognize and address expected juror preconceived notions and concerns. Meritorious slip and fall cases deserve real attention. Their prosecution might even end with a safer world.

Joseph Chapman is a personal injury attorney and litigator at McNees Wallace & Nurick and serves clients from Harrisburg. He spends most of his time working for people who were hurt by others. He can be reached at jchapman@mcneeslaw.com at 717-237-5375