Slip and Fall Legal Guide for Alabama Lawyers

This blog post is a summary of case law updates and practical tips for litigating slip and fall cases in Alabama. Prepared by our personal injury attorneys, we hope this information will provide other Alabama lawyers guidance on obtaining successful outcomes for their clients.

What is the Duty of the Premises Owner?

Determining the duty of the premises owner is critical when evaluating a premises liability case. The status of the injured person as either “invitee” or “licensee” determines what duty is owed by the premises owner:

• Invitee — An invitee is a person who is on the premises for some purpose that materially or commercially benefits the owner. Unger v. Wal-Mart, 279 So. 3d 546 (Ala. 2018).  The most obvious example is a customer at a store, but a mailman delivering to someone’s front porch is a more recent example from our Supreme Court.  The premises owner owes a duty to business invitees “to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.”
• Licensee — A licensee is a person who enters the premises with the owner’s consent, but is not present for the purpose of materially benefiting the premises owner. A duty of a premises owner to a licensee is “the duty owed by a premises owner to a licensee is to abstain from willfully or wantonly injuring the licensee and to avoid negligently injuring the licensee after discovering a danger to the licensee.” Cotten v. St. Bernard Prep School, 20 So. 3d 157 (Ala. Civ. App. 2009). 

The success of many cases hinges on the status of the injured person. It is important for a lawyer representing an injured person to gather as much evidence to show that the injured person was present on the premises to provide a material benefit to the premises owner.

Gathering Evidence in Alabama Slip and Fall Cases

The first step after meeting with an injured client is to send a preservation of evidence letter to the premises owner.  This letter should request preservation of:

1. All surveillance video footage
2. All witness statements
3. All correspondence related to the incident
4. All reports or memos

As most lawyers know, a premises owner is under no duty to preserve evidence unless the owner has received such a request. Advise the premises owner of the potential ramifications of failure to preserve such evidence, i.e. spoliation sanctions.

The next step is to send an investigator to the premises to take photos of the area.  Even if the hazardous condition is gone, photos of the area can you give you a much better idea of potential defenses, the location of video cameras, and generally give you a better understanding of how the incident occurred.

If the hazardous condition is still present, which is especially true in cases involving a tripping hazard, have your investigator measure and photo the hazard. These measurements and photos can be crucial in proving liability.

Actual v. Constructive Notice

In cases of injured invitees, you must prove that the premises owner was actually aware of the hazard, that it had constructive notice of the hazard, or that it was delinquent in failing to appreciate the hazard. Smith v. Wells Fargo, 233 So. 3d 991 (Ala. Civ. App. 2016).  Proving actual notice is usually difficult, but can be shown through witness statements of former employees, customers, incident reports, or surveillance footage.

Even if you cannot build evidence showing the premises owner had actual knowledge of the hazard, a good lawyer can build a case on the theory of constructive notice.

For example, in Alabama, when the hazard itself is part of the premises, then constructive notice is presumed. For example, in Mims v. Jack’s Restaurant, 565 So. 2d 609 (Ala. 1990), our Supreme Court held:

in cases where the alleged defect is a part of the premises (in this case, a loose threshold in the main entrance of a restaurant), once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident.

If the hazard was not part of the premises, the lawyer will want to obtain evidence or elicit testimony showing that the hazard had been present for a lengthy period of time. In a case involving liquid on the floor, this can simply be your client’s opinion that the substance was dirty or congealed.

Using Codes/Standards to Prove Liability in Alabama Slip & Fall Cases

One of the best ways to prove negligence is to show that a premises owner was not following applicable building codes or accepted industry standards.  For example, in our hometown of Huntsville, Alabama, our city council has adopted the 2018 version of the International Building Code by way of ordinance. Any property owner whose premises is violative of the IBC is technically violating municipal law.

Another relevant standard is the Life Safety Code published by the NFPA.  Most experts agree it is the most comprehensive document setting forth accepted industry standards for premises safety.

You will want to strongly consider hiring an expert witness to testify about building codes or standards to bolster your slip and fall case. The expert could be an engineer or an inspector. To read an example of how our Supreme Court recently ruled in a plaintiff’s favor because of such expert testimony, review the recent decision of Byrne v. Fisk, 2023 WL 3558245 (Ala. 2023).

The Open and Obvious Defense

The affirmative defense of “open and obvious” arises in almost every premises liability case. In Alabama, “the owner’s duty to make safe or warn is obviated, however, where the danger is open and obvious — that is, where the invitee … should be aware of [the danger] in the exercise of reasonable care on the invitee’s part.” McClurg v. Birmingham Realty, 300 So. 3d 1115 (Ala. 2020). Always be prepared to combat this defense at the summary judgment phase.

Our courts have stated that the issue of open and obviousness is usually a question for the jury.  However, a judge can decide the issue in favor of the defendant as a matter of law in one of three instances. The McClurg Opinion lays out these three scenarios:

1. Cases in which the plaintiff has admitted carelessness or subjective knowledge of the condition. (See Browder v. Food Giant, finding open and obvious danger in grocery store parking lot where plaintiff admitted that she was not paying attention as she walked);
2. Cases in which the type of condition was so obviously dangerous as to preclude liability under any circumstances (See Ex parte Industrial, 709 So. 2d 16 (Ala. 1997), stating “total darkness, possibly concealing an unseen and unknown hazard, presents an open and obvious danger to someone proceeding through unfamiliar surroundings, as a matter of law.”); and
3. Cases in which, under the particular circumstances, no reasonable jury could find that the danger was not open and obvious. (See Jones Food Co. v. Shipman, 981 So. 2d 355 (Ala. 2006) holding that “a ladder leaned against the facade of a restaurant at a 45° angle to the ground,” was an open and obvious danger under the circumstances).

McClurg is a recent and helpful decision on the open and obvious defense. In that case, the hazard at issue was a pothole in a parking lot. The court held that the pothole did not fall within either of the aforementioned three categories.  Therefore, summary judgment was denied.

Let us Know if We Can Help in Your Alabama Slip and Fall Case

We hope this has helped you in your current and future premises liability cases.  If we can ever be of assistance, please reach out.