In this week’s Legal Beagle Podcast, Jonathan Negretti interviews premise liability expert Todd Springer. They discusses what one should consider before pursuing a slip and fall case.
What does a premise liability expert do? What factors does an expert look at when evaluating an injury or accident? How are experts’ findings important to shaping the courses of premise liability cases?
For insights into these questions, Jonathan Negretti had a virtual chat with Todd Springer, a mechanical engineer and expert at Phoenix-based Augsperger Komm Engineering, a firm that specializes in forensic engineering, insurance claim analysis, product design, and expert witness testimony.
Springer provides expert consulting and testimony with regard to building envelope installation and performance, as well as exterior building system evaluations with regard to hail and wind damage. In addition, he regularly addresses building code, ADA compliance issues, and how pedestrians interact with their environments.
Jonathan Negretti: What does a premises liability expert do?
Todd Springer: I look at site conditions and different elements of buildings. Premises liability is anything to do with the premises. I have knowledge of certain systems — building components, and human factors — and I apply those.
I consider how a door is supposed to work. How hard is it supposed to be to open a door? What are walkway conditions supposed to be like, both in and around a building? What is required for stairways?
I look at certain maintenance items. How are floors supposed to be maintained? How are those maintenance activities supposed to be carried out?
Building codes govern construction, and third-party consensus standards establish standards of care. Those things are applied to different incidents that occur on a premise.
Jonathan Negretti: Let me give you a hypothetical premise liability case. Let’s say someone’s at a Burger King, and they slip and fall, and they get hurt. They then call an attorney. That attorney then reaches out to you to say, “Todd, I need to know if there’s a case here.” To the person that fell, they think, “There was a wet surface in Burger King. I fell. I’m hurt. It’s Burger King’s fault.” Is it that cut and dry?
Todd Springer: No. In my world I talk about all those things that we just discussed. From your world — as a lawyer — you talk about other things. It’s in the marriage of those two things that really answers your question.
The way I look at those instances is, there are basically three prongs, if you will. Was it a hazardous condition? Was it readily identifiable by someone? The part where it gets a little bit on the edge of my area is notice. In an attorney’s world someone has to have known about this condition or, I believe, created it.
If I were there as a customer, and I got a drink, then spilled it — and you walked behind me and you slipped — as I understand it, it’s very hard to say that’s Burger King’s fault.
Jonathan Negretti: How come? I think you’re right, but explain why.
Todd Springer: The interpretation I have is the notice. Is it Burger King’s standard of care to follow every single customer around and make sure they never spill?
Rather, there are general standards of care that every organization should have some system in place for ensuring that these things are minimized. They’re mitigated to some extent. In grocery stores, they’ll have store sweeps. More often, it’ll be in the produce section. Less often, it’s around the store.
At Burger King, how often are those guys out walking the lobby looking for spills, picking up trash, you know? Was the accident in the middle of a lunch rush?
Where it all gets super fun, when I talk to every client, is the term “reasonable.” The term reasonable gets thrown around. What is reasonable? To be able to discuss the factors that go into that is what I do.
Well, there are things that people can do and things that they don’t do. They can have a schedule. If you look at a log, you can see they were there at 7:58 a.m., and the next time was 9:14 a.m. But that might be their breakfast rush and they’re supposed to do [the sweep] every hour. Well, they were an hour and 17 minutes apart. So, did they fail? What’s reasonable?
Jonathan Negretti: When you look at reasonableness in premise liability cases, do you look at it from the standpoint of an objective finding, versus a subjective finding? What’s reasonable to you may not be reasonable to me. As an expert, do you live in that world of objectivity?
Todd Springer: When I started, I would ask whether or not a condition was unreasonably dangerous. As I went along, I started looking into where that came from. My current understanding, if my memory is accurate today, is that it’s a jury instruction.
I can say there was no reason for this condition to exist. If someone puts a trap door in a floor, there’s no reason for that. Someone is going to get hurt. You could say it’s unreasonably dangerous.
As far as the hypothetical Burger King incident is concerned, talking about the factors that go into that really lead up to that. If the store were two-and-a-half hours apart on its store sweep log, and then you saw a video where two employees are on Facebook for 30 minutes blowing off the store sweep, I think, that’s an easy one to explain. That’s the first thing that popped in my head.
I take all the data I can, explain the significance of it, and apply it to codes and standards of care. Then I can discuss human factors. Are people multitasking? Are they going down a stairway with a heavy floral pattern with grand, distracting views, and then misstep? Those things have been studied. I can talk about those from a scientific perspective.
Jonathan Negretti: If a typical person has fallen, and they want to understand whether they have a premise liability case, give me a few thoughts on what you would tell that person directly. Maybe they don’t have an attorney and just want to know, “Do I have a case or did I just mess up?” What would you tell those people?
Todd Springer: This is rough one, because we’re very emotionally driven creatures, I think. The first thing I would say is, “Think about what you were doing — your actions on that day, leading up to that event, and how safe you were being. Were you texting and driving? Were you looking at yourself in a mirror as you walked into a planter? If so, was it really the planter’s fault?”
And then, think about if you owned the business. People don’t want to do this, all the time. If you’re saying there’s $50,000 or more on the line, take a minute and think about it. If I owned the business, would it make sense that I [as the customer] shouldn’t be allowed to do that? Or should I view that as my fault?
You know, if someone slips on a spilled soda at Burger King, and I own the Burger King, is that my responsibility?
Take a second and look at the case from both sides. Inevitably, a defense attorney will be hired. They will defend their client, because that’s their job. They are going to find every way they know how to poke a hole in your case and find you at fault.
So, if you can think about some of those ways where you might be at fault, that will give you a good perspective on whether it wasn’t all on them, but perhaps 50/50: “Maybe I wasn’t being too reasonable — the guy was mopping, and there were no signs up. … That doesn’t make sense. … It’s really easy to put signs up. … Just mop half the floor at a time, put some signs up around that half and then go over it.”
Just think it through. Write it down. Draw a picture. These are the fundamentals of what I do. What do we know? What don’t we know? That will give you some insight.
Jonathan Negretti: If you’re a young attorney doing personal injury work and you may not have had any premise liability cases, but you want to get into this area, what would you tell that attorney to be aware of, or to think about with these types of cases?
Todd Springer: The biggest thing I would tell them is that you need to know an expert. There are some people who just don’t use them. I don’t know what the pros and cons are, financially. That’s ultimately the attorney’s game at the end of the day — the dollars.
You need to know how honest your expert is with you. The way I would do that is, I would make up a junk case and call an expert: “I’ve got two cases that I want to talk to you about.” And I would tell them about the real case and hear what he or she had to say. And then I’d say, “OK, I’ve got another one. … This guy’s walking, and he steps off the curb, but someone honked their horn as they’re going by. So, this business that owns the curb …” Be creative. Think of something.
Jonathan Negretti: I would tell all young lawyers to get an expert early. Have conversations. Find people you trust. Ask those questions. Pay for the evaluations. It’s not a big deal. If you have to pay for it, it’s worth it. It will save you a boatload.
Todd Springer: I think a lot of times, a seasoned expert can give you a good idea early on [about a case]. Now, when you go on to due diligence, things can change all the time — someone can be deposed, and something comes out. It doesn’t take a long time looking at a few facts and digging in for a little bit.
Jonathan Negretti: Don’t be afraid to pick up the phone and have a conversation and learn what you don’t know. Don’t think you know it all — because you certainly don’t. It was good that I learned this early in my career, not late in my career. It’s helped me on a lot of cases that we have not taken.
I’ve gone as far as to share some of the analysis that you’ve given us with potential clients, when we turn down the opportunity to represent them, because we don’t think there’s a case — after you evaluate it and we talk, and we kind of debate whether there’s enough there. I think potential clients appreciate that. I walk them through what your analysis, and I say “Look, this is why there may be some challenges. You’re certainly welcome to go get a second opinion, or a third. I don’t think that there’s a reason to pursue this because of X, Y, and Z.”
Being honest with clients — up front and just candid with them, I will say, “Look, we talked to our expert. He evaluated it and there’s just nothing here.”
I would much rather tell the client early on, once we discover that there isn’t a case to pursue, that we’re not going to take it any further, than to tell them way later, or have a really bad outcome at trial — if it ends up there. I would rather be honest. I think that’s probably why we work well together.
You do a good job of just being honest with me about what to expect with the case and say, “Look, I don’t know if you have what you’re looking for here.” I’m just wondering why you have taken that approach to your work.
Todd Springer: Well, number one, that’s how I was trained. And it’s kind of the golden rule, too.
There are some gray areas in all of this. It’s never black and white, or you wouldn’t need people to talk about stuff. You explore those gray areas. You can go down different paths of logic, thought, and reasoning. Every once in a while, you’ll do that, and someone else will come along later in the case — when it’s not so fun — and they’ll bring up some stuff you didn’t think about. And then you’re sitting there going, “Hey, I didn’t you know.” That’s never fun.
And I always joke that I’m not retiring soon. It’s way better to work on a more solid case. From the bottom of all of that comes who we are as people. Am I really in this to try to help you build a case? Or is it better if I were to tell you all this stuff? Like I said, a lot of times someone else is going to point these things out later.
If you believe that you’ve experienced injury or damages related to a premise liability case, reach out to Negretti & Associates for a free consultation with our legal team. Call us at (602) 531-3911 in Arizona, (619) 777-3370 in California, or (720) 636-3444 in Colorado. You can also contact us online or send us a text.