Was the banana peel yellow or brown? That’s the first question I ask a new client who has been injured in a slip and fall case. Most people just laugh, but as strange as it sounds, it’s one of the best metaphors you can use to explain to a client the basics of negligence law as it applies to a slip and fall case.
The prima facie elements of a typical negligence cause of action applies to slip and fall cases. The difficulties many injured people face in these types of cases is one of proof, specifically proving that the landowner, typically a store of some kind, was aware or should have been aware that a dangerous condition existed. So to use our banana peel metaphor, if the banana peel was brown, it had probably been sitting there for a while, and someone should have cleaned it up. If it was yellow, it had probably only been there for a short period of time, and it might be reasonable to assume the store owner had not had a reasonable chance to discover it and clean it up. Make sense?
An injured party must establish that a hazardous condition existed at the time and place of the fall, including proof of actual or constructive notice. Actual notice requires proof that that the defendant, its employees, or a business invitee created that condition or the defendant or its employees were aware of the condition but willfully or negligently failed to correct it. Constructive notice requires proof that the condition had existed long enough that the defendant should have been aware of its existence and have corrected it. Brown banana peels typically mean the case is compensable, and yellow banana peels may mean the case is not compensable.
Injured parties beware, notice can be used against you too. The defendant business owner may claim that the dangerous condition was open and obvious, and no duty was owed by the defendant because the injured party could have avoided it. Illinois courts have carved out exceptions to open and obvious dangers, including the “distraction/ forgetfulness exception” and “deliberate encounter exception.”
Shay & Associates has significant experience handling slip and fall cases. Whether it’s a banana peel, or other foreign substance, we know that injuries from these types of falls are no laughing matter.
This weblog does not constitute legal advice, and no attorney-client relationship is intended to be established due to reading this weblog. If you suffer from the above described injury, you should contact an attorney as soon as possible to ensure that your right to recovery is protected.