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Construction Defect Group sees rapid uptick in slip-and-fall defenses


When most of us hear about slip and fall lawsuits, thoughts often turn to late-night television commercials for ambulance-chasing personal injury attorneys or, perhaps, to fictional lawyers such as Jimmy McGill from AMC’s “Better Call Saul” whose amoral stunts had once earned him the nickname “Slippin’ Jimmy.” But people do indeed slip and fall, and when they do it’s not only owners and developers who need to defend against such lawsuits and the attributed injuries, be they real or perceived, frivolous or meritorious. Contractors, too, must defend themselves against these lawsuits, and Guardian Group’s work of defending and protecting construction contractors necessarily includes these types of defenses as well.


The rise in slip-and-fall cases appears to occur cyclically; with downturns in the economy or disruptions to the labor market possibly fueling the desperation and motivation for more people to be searching for a quick payday. If one wanted to argue on the side of case legitimate injury and still explain away increases in volume, perhaps one would say that increased worries leads to distraction and less caution. Regardless, slip-and-fall cases tend to fall into two main categories: claims of too slippery a surface and claims involving some other dimensional element, i.e. the size and depth of a stairstep as but one example.


Upon being notified of a case against one of their contractor policyholders by one of our insurance carrier clients and their counsel, typically a Guardian Group construction defect expert will review plans and specs, often interviewing the contractor ahead of the expert’s site visit. Since many of the cases we see involve a slippery surface claim and depend upon establishing a reliable coefficient of friction (COF), Guardian’s expert arrives with a COF tester in hand. The readings here, when the machine is calibrated properly and testing conforms to ASTF guidelines, prove much more reliable in this arena than, say, photographic evidence or verbal testimony. Currently, for ceramic tile, for example, the National Floor Safety Institute standards and prescribed methodologies desire a wet DCOF above 0.42.


Numerous factors can complicate matters in these cases: did opposing counsel also perform a test? Under what conditions and protocols? Is the floor surface the only element at play? Are we talking about static COF (the ratio of force required for two surfaces to start sliding) or dynamic COF (the ratio of force to keep two surfaces sliding)? In instances where ADA codes exist, it may be easier to demonstrate an appropriate standard of care was utilized by one of our contractors, but what about instances where no code or regulation exists? Ultimately, for all of these scenarios and others, what can make the most profound impact on case development and case outcomes is the real-world working knowledge of what occurs on a jobsite, material and process familiarity, and where plaintiff’s experts often misconstrue or deviate from testing standards.

One recent Guardian Group case involved an older building and the yellow stripe applied to a stair step – the very stripe intended to prevent accidents. The plaintiff claimed the paint itself was too slippery; Guardian disagreed and proved otherwise. In another recent case Guardian helped establish that the contractor was only following direction… by painting a curb according to the building owner’s tastes and not local ordinance. On another recent case, plaintiff accused the contractor of building a stairway that was not in compliance with code, but that assertion was rapidly discredited. Of course, there are trip hazard cases, too, and these claims can manifest both during construction, impacting others on the job site, as well as after the building is open to the public.


When carriers and construction defense litigators need rapid response and experienced, pragmatic construction defect counsel, they often turn to the experts at Guardian Group, Inc. From the smallest of claims and all the way up to some of the world’s largest, Guardian’s Construction Defect Group collaborates with counsel to provide the case the technical expertise needed to prevail in negotiations, in arbitration, and in court. You can orchestrate a more resounding defense when you rely on over 30 years’ complex construction and engineering claim experience. Kindly call on Guardian Group today.

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