Can Lack of Prior Slip and Falls by Other Customers Be Used Against You at Trial by Jury?

One of the dirty tricks by defense counsel on a Slip and Fall defense is to show the number of people who did NOT fall on the dangerous property that day or on prior days.

You can imagine the power of this argument to a jury:  “So, Mrs. Plaintiff wants to sue us, Walmart, for falling on a slippery floor when our data shows that over 9,000 customers did NOT fall on that same date?”

Such evidence can be devastating to your chances of success in a Slip and Fall case.  Luckily, in Indiana, you have a strong argument as an injured person (and her attorney) that such evidence is not relevant, nor useful, nor should it be admissible.

Many people fall at restaurants. These restaurants have many customers who did NOT fall.

I did find three (3) early Indiana Supreme Court decisions that are directly on point.  In those cases, the Supreme Court ruled the defendants were NOT allowed to tell the jury that the property was safe because others did NOT slip and fall in the past. Those cases are:

 Nave v. Flack, 90 Ind. 205 (Ind.1883)

 Bauer v. City of Indianapolis, 99 Ind. 56 (Ind. 1884)

 Louisville & N.R. Co. v. Kemper, 153 Ind. 618, 53 N.E. 931 (Ind.1899)  

 Sometimes, lawyers become scared that a case is “too old” for a current Judge to be persuaded to continue to follow it.  I’ve always felt the opposite was true:  this law must be solid because it is so old and has not been changed.

In Nave v. Flack, 90 Ind. 205 (Ind.1883), the plaintiff was driving a horse-drawn wagon loaded with corn, delivering it to the defendants’ warehouse.  The defendants had constructed a covered driveway, which provided the only means of access to the warehouse.  There was little space between the floor and ceiling of the driveway and when the plaintiff drove over an elevation in the floor, he became caught between the timbers of the ceiling and the floor, seriously injuring him.    

 The plaintiff won his case.  But, the defendants appealed and said the lack of prior evidence of NO injuries should have been put in front of the jury.  The Indiana Supreme Court disagreed and upheld the verdict for the plaintiff.  The Supreme Court looked at the jury instruction the defendant wanted: 

If the jury find from the evidence that the place where the plaintiff received the injury he complains of had been used by the defendants for many years as a drive-way to receive wagon loads of corn containing as large and larger quantities of corn than the load on which the plaintiff was hurt, and that several hundreds of thousands of bushels of corn had been hauled into the defendants’ warehouse through said drive-way and nobody was injured, and that no complaint had ever been made to the defendants or either of them, nor had they, or either of them, ever heard said drive-way called of not sufficient height by any body [sic], nor had notice thereof, and plaintiff was hurt in said drive-way in the manner he complains of in his complaint by accident, then the plaintiff cannot recover.

However, the Supreme Court rejected the defendant’s argument and held that:

 The court did right in refusing this instruction.  If the place was in reality dangerous, and the appellants were negligent they are liable although the dangerous place may have been much used.  The instruction makes the case turn upon the safe use by others, not upon the actual condition, and in this is erroneous.

In support of that conclusion, the Court explained that:

If the place was actually dangerous, then the fact that others had used it and escaped unhurt would not relieve the appellants from liability.  The ruling question was whether the place was in truth dangerous, and if it was shown to be so then the fact that others had used it in safety would not change its character, nor deprive the appellee of his right to redress.  A place proved to be unsafe may have been used without harm, but because this has been done does not alter its actual condition.  Men may and do use unsafe places without receiving injury, but this does not show that a place proved to be really dangerous is not so.  

Similarly, in Bauer v. City of Indianapolis, 99 Ind. 56 (Ind. 1884), the plaintiff fell and broke his leg while walking along a sidewalk in Indianapolis.  This happened because a neighbor had put wooden planks over the sidewalk a few years earlier and the ends had warped in the sun.  The plaintiff argued the City allowed this dangerous condition to occur. 

The jury returned a verdict for the defendants and the plaintiff appealed because the jury had heard evidence of lack of prior falls by other.  The Supreme Court held that the trial court erred in permitting the defendants to introduce evidence that persons other than the plaintiff had safely passed over the area in question.  The Supreme Court cited the following passage from Temperance Hall Ass’n of Trenton v. Giles, 33 N.J.L. 260:

 “The reason for excluding all evidence of this character is, that it would lead to the trial of a multitude of distinct issues, involving a profitless waste of the time of the court, and tending to distract the attention of the jury from the real point in issue, without possessing the slightest force as proof of the matters of fact involved.”   

 In addition, the Supreme Court noted that it had correctly stated in Nave v. Flack, 90 Ind. 205 (Ind.1883) above.

The plaintiff in Louisville & N.R. Co. v. Kemper, 153 Ind. 618, 53 N.E. 931 (Ind.1899), was a railroad employee who was injured while attempting to attach two freight cars.  The injured plaintiff argued that there was a large amount of water underneath and over the railroad tracks, which caused the ground to become soft and sink.  Plaintiff slipped on the track and was injured and sued the railroad company for allowing the water to accumulate while heavy railroad cars were on the track.     

 The plaintiff won and the railroad defendant appealed.  The defendant railroad said that evidence of others NOT being hurt in the same area was relevant.  The Indiana Supreme Court held otherwise:

The evidence offered by appellant to prove that no other person had ever been injured in consequence of the sinking of the track at the place mentioned in the complaint was properly excluded.  Proof of immunity of other persons from injury affords no sufficient basis for a presumption that the track was sound and safe.

While it is true these cases are old, the rule of law still applies:  don’t let Defendants sneakily attempt to enter evidence of others NOT falling, tripping or slipping at an incident site.