Personal Injury Lawyers in Manassas – Negligence Slip Fall

A Carluzzo Rochkind & Smith note:   Following is an excellent article by Virginia Lawyers Weekly.  We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.


Negligence: Jury properly considered man’s negligence in slip-and-fall

By Virginia Lawyers Weekly – 10/6/2024

Where a man filed suit after he allegedly fell while entering a hotel bathtub, the issue of contributory negligence was properly submitted to the jury. The man has preexisting medical issues that caused reduced sensation in his feet and a collapsed arch in his left foot, which is the foot that slipped when he entered the tub.

Background
James Burgess sued SYP Hospitality LLC after he allegedly slipped while entering a hotel bathtub. After a two-day trial, a jury found in favor of SYP.

Jury instructions
Burgess contends that the circuit court erred by giving jury instruction 16 because it incorrectly stated the duty of care owed by SYP. Burgess asserts that SYP owed him an “elevated” duty of care “akin to that of a common carrier and passenger,” rather than a duty of ordinary care. He also asserts that jury instructions 15 and 16 were inconsistent. The court disagrees.

SYP owed Burgess a qualified duty of ordinary care with respect to the safety of its premises. That qualified duty became “absolute” if SYP knew or should have known of the presence of the foreign substance, and it needed to remediate the condition if it could have “easily” done so. Jury instructions 15 and 16 correctly reflect the law, and, accordingly, the circuit court did not err by submitting the instructions to the jury.

Contributory negligence
Burgess next argues that the circuit court erred by submitting the question of contributory negligence to the jury because SYP failed to introduce evidence that he “could have taken reasonable action to avoid his injury.” Burgess contends that SYP produced no evidence to show that he could have taken reasonable action to avoid injury. The court disagrees.

Burgess suffers from diabetes, neuropathy and Charcot arthropathy in his left foot. There is conflicting evidence about whether his diabetes was controlled at the time of the incident. Both neuropathy and Charcot arthropathy cause reduced sensation in limbs. While neuropathy can start with tingling, it can progress to complete numbness. Likewise, Charcot arthropathy begins with a loss of sensation and leads to collapsed bones in the foot.

Burgess acknowledged that his conditions caused reduced sensation in his feet and a collapsed arch in his left foot. His condition had progressed to the point where he was prescribed a CROW boot for his left foot. SYP’s experts testified that these conditions can affect how an individual feels with their feet, including losing the ability to tell the difference between smooth and rough surfaces, which leads to a significantly greater risk of falls.

Burgess testified that he stepped into the bathtub with his left foot. Thus, the evidence established that Burgess stepped into the bathtub, leading with, and planting, his left foot, a foot in which Burgess suffered from reduced sensation and a collapsed arch. The amount of sensation Burgess had at the time of the incident and what role it played is a jury question. A reasonable factfinder could find that Burgess was negligent in leading with his left foot and that this caused the fall. Thus, there was sufficient evidence to send the issue to the jury, and the circuit court did not err.

Comorbidities
Burgess next argues that the circuit court erred by permitting SYP to argue that his comorbidities, including his diabetes, “significantly increased [his] risk of infection and subsequent need for a partial amputation of his right foot.” However Burgess did not object during SYP’s argument. Even so, Burgess argues that he preserved his objection through his motion in limine and oral argument on the motion and that he was not required to renew his objection during the trial.

But Burgess’s arguments below sought to exclude any expert testimony that his “diabetes or other pre-existing medical conditions caused his injuries.” On appeal, he assigns error to the circuit court’s decision to permit SYP’s allegedly improper argument on that same issue.

Though the underlying rationale for his arguments may be the same, whether expert testimony is admissible is a different issue than whether defense counsel made improper argument. While Code § 8.01-384(A) does not require Burgess to repeat his objections to the admission of the expert testimony, it does not excuse him from properly preserving a different legal objection.

Affirmed.

Burgess v. SYP Hospitality LLC, Record No. 0877-23-2, Sept. 24, 2024. CAV (unpublished opinion) (Atlee Jr.). From the Circuit Court of Henrico County (Wallerstein Jr.). Darrell J. Getman (Jonathan E. Halperin; Brody H. Reid; Halperin Law Center; Reid Goodwin, PLC, on briefs), for appellant. John P. O’Herron (Peter S. Askin; ThompsonMcMullan, P.C., on brief), for appellee. VLW 024-7-298. 10 pp.

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