Case of the Dangerously Icy Sidewalk: Broken Ankle, Six Figure Settlement
Published On: February 18, 2008
Miss May T., a then 17 year old girl, slipped on black ice outside of a convenience store and suffered an excruciatingly painful bimalleolar fracture of her right ankle. Her injuries were so severe that massive swelling ensued and the doctors were unable to operate on her ankle for over a week! While May writhed in unspeakable pain and doctors were unable to do anything more than give her pain pills (which she was reluctant to take), the insurance carrier for the convenience store denied liability!
A massive liability dispute arose. I hired a meteorologist, a slip and fall expert and a private investigator to get sworn statements from the convenience store’s own employees. The sum and substance of the case is as follows:
My meteorologist advised me that weather reports attested to the fact that it had been snowing during the evening and entire night of the evening prior to the incident, possibly extending into the early morning hours of the morning of the actual incident, with the existence of sub-freezing temperatures during the night and early morning hours. The day of the accident presented mostly sunny conditions throughout the daytime hours. The incident occurred at approximately 9:00pm at which time there was an accumulation of ice from the previous night’s weather conditions which could, and should, have been treated, melted and cleared.
My private investigator obtained sworn statements from store employees which substantiated the fact that, throughout the day, customers complained of the icy conditions on the sidewalk outside of the subject convenience store. Those statements provided testimony that the assistant store manager, Vickie, was advised a multitude of times of the customer complaints but failed to remedy the dangerous condition. Vickie repeatedly told employees that customers “just needed to be careful.” Vickie further told the convenience store employees that the store had no rock salt with which to remedy the situation in its possession. However, subsequent to May’s fall, and then upon further investigation, the convenience store employees discovered that rock salt did, in fact, exist in the the convenience store storeroom. At that point, the rock salt was utilized to de-ice the subject sidewalk and thereby remedy the dangerous condition. Vickie’s failure to timely investigate and make safe a very dangerous condition was the actual and proximate cause of May’s injuries (see, for example, Langhorn Road Apartment v. Bisson, 207 Va. 474 (1996) where an apartment owner was found liable when the plaintiff fell on an accumulation of ice and snow).
The egregious and uncaring conduct of Vickie resulted in this dangerous condition persisting throughout the day and, ultimately, into the night when an unsuspecting May T. exited the convenience store, slid across the sidewalk and was stopped when her foot slammed into a concrete device which was intended to stop a moving vehicle!
Where was the danger sign? Where was the simple repair that could have saved May from such excruciating, and unnecessary pain? The answer is: No where to be found and this lack of action on the part of the convenience store was a breach of their duty to May, their customer, to protect her from an unreasonable risk of harm.
May suffered a fracture of her ankle as well as a torn ankle ligament all of which which required major surgery with the placement of a five-hole plate with two screws above and below the fracture line. To this day, Miss T. suffers pain in that ankle and is expected to ultimately develop arthritis.
After months, and months, of argument and negotiation, I was able to convince the insurance carrier for the convenience store that, yes, their insured did bear the responsibility in this matter. The insurance carrier made a six figure offer to settle May T’s case. f