THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Monday, October 17, 1994 TAG: 9410170074
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 140 lines
Josephine Mollura was a healthy 91-year-old great-great-grandmother when she tripped over the carpet in the Little Theatre of Norfolk last year.
She fell hard, breaking her hip. She died in May, eight months later. Now, her family is suing the theater for $1.25 million.
It is a very ordinary case in one sense: Slip-and-fall lawsuits are common as dandelions on suburban lawns in spring. Dozens are filed each month in local courts. Next to traffic accidents, they are probably the most common cases in all civil courts.
But fatal slip-and-falls are almost unheard of. Yet three such lawsuits have been filed in Norfolk Circuit Court since June, including the Little Theatre case.
Even veteran personal-injury lawyers are surprised.
``I've never come across a slip-and-fall case that resulted in a fatality. It is amazing that you would have three like that,'' said J. Darrell Foster, a lawyer with Bangel, Bangel & Bangel who is handling one of those cases.
It is more surprising when you consider that slip-and-fall cases are among the hardest to win.
``They're very common,'' said Mary G. Commander, who handles some personal injury cases for Goldblatt, Lipkin and Cohen, ``but the problem is one of proof.''
Virginia law is funny that way: Not only must a victim prove that the owner knew about the defect that caused his fall, or should have known about it. The victim also must prove that he was not responsible for his own injury in any way.
In Virginia, unlike most states, a victim cannot collect a penny if he is even remotely to blame for his own injuries.
That's why, contrary to public belief, many Virginia lawyers run away from such cases.
``Lawyers don't like slip-and-fall cases. They're very difficult to prove,'' said Philip J. Geib, a lawyer with Bennett and Zydron, who is handling the Little Theatre case.
Yet slip-and-falls are in every courthouse in Hampton Roads. No single lawyer or law firm is responsible for this. The cases run the gamut from ordinary supermarket spills to bizarre military accidents.
Most are routine and unspectacular: people tripping on steps or sidewalks, sliding on spills, seeking damages of $50,000 or less.
But a small percentage are large and complex, including a tiny handful seeking more than $1million.
In recent months, for example:
An electrical contractor fell through the deck of a Navy surveillance ship at Little Creek Amphibious Base, apparently through a loose grating. He is suing for $3million.
A delivery woman slipped on a wet spot in a Virginia Beach lawyer's office. She is suing for $100,000.
A moviegoer tripped over a step in a darkened theater. She is suing for $250,000.
A customer slipped on water leaking from a motel-room refrigerator. He is suing for $100,000.
A shopper tripped over a rug at a supermarket checkout counter. She is suing for $1 million.
A woman slipped on a just-waxed floor outside a bathroom in a public elementary school. She is suing for $250,000.
In most cases, it is impossible to tell how badly the victim was hurt from the lawsuits alone; the injuries usually aren't stated.
Lawyers agree that many victims don't understand how hard it is to win such a case in Virginia.
``There's a misconception by the public that if I fall on your property, you're responsible,'' said Robert W. McFarland, a Norfolk lawyer with McGuire, Woods, Battle & Boothe, who defends Food Lion, Busch Gardens and other businesses. ``Actually, it's very hard just to get the case to the jury.''
At the Little Theatre, for instance, the victim's family must first find out what the woman tripped over. A lump? A piece of popcorn? That's hard enough. Then they must prove that theater employees knew of the defect and did nothing, or that the defect was there so long that employees should have known about it.
``In the vast majority of cases, you don't have a prayer of proving that,'' said Randolph C. DuVall of Pender & Coward, who defends such businesses as Hardee's and Kentucky Fried Chicken.
Foster said, ``You need to catch a break. You hope to find an honest employee. It puts them in a really tough spot, especially when you're talking about people on the low end of the totem pole - the bag boy, stock boy, people like that.''
Lawyers in the other two fatalities face similar burdens.
In one case, a woman slipped on ice outside her apartment complex's entrance. The lawyer, Foster, must prove that the landlord knew the ice was there, or should have known it was there.
And that's not all.
Virginia homeowners have no duty under law to remove snow or ice. But businesses must use ``reasonable care'' to remove ice and snow within a ``reasonable period,'' Foster said.
What's reasonable? That's for a jury to decide.
In the third fatal case, an elderly woman slipped on a greasy spot at the Shoney's salad bar on Virginia Beach Boulevard at Newtown Road. The family's lawyer, Claude M. Scialdone, must prove that the restaurant knew about the greasy spot, or should have known, and did nothing.
In each case, the lawyers also must prove that the dead women did nothing to cause their own falls.
``That's true even if the judge feels the store was 99 percent at fault and the plaintiff was 1 percent at fault,'' Foster said.
In many Food Lion cases, there is an extra burden. Food Lion is an out-of-state corporation, so McFarland often moves such cases out of state court and into federal court, which hears interstate disputes between citizens.
This discourages lawsuits against the big supermarket chain.
``There are lawyers who won't touch a Food Lion case because of that,'' Commander said. ``Most lawyers in this area are afraid to go to federal court.''
McFarland acknowledges that that is a factor in using the tactic. Since 1989, Food Lion has been a defendant in 104 cases in Norfolk's federal court, many of them slip-and-falls, according to court records.
``We enjoy being in federal court,'' McFarland said. ``We are very comfortable there. We know the rules.''
The bottom line is simple, lawyers agree: If you slip on a grape at the local grocery, you'll have a tough time collecting money, no matter where you file suit.
DuVall said: ``The majority of slip-and-falls I've tried, the guy on the other side had to know he was going to lose.'' MEMO: [For a related story, see EXPERT WITNESS BECAME SUCCESS BY TESTIFYING IN
SLIP-AND-FALL CASES, on page B2 for this date.]
ILLUSTRATION: Three such suits have been filed in Norfolk since June:
Juanita White - Slipped on ice at entrance to Wards Corner
Apartments on New Year's Day 1994. Hit her head and died hours
later. Age 57, married, no children. Husband suing for $1 million.
Lawyer J. Darrell Foster of Portsmouth.
Josephine Mollura - Tripped over lump in carpet at Little Theatre
of Norfolk on Sept. 18, 1993. Broke hip, health declined, died eight
months later. A 91-year-old widow with four children. Son suing for
$1.25 million. Lawyer Philip J. Geib of Virginia Beach.
Jane Austin - Slipped on greasy spot at Shoney's salad bar on
Oct. 16, 1993. Broke many bones. Never left hospital. Died five
months later. Lawsuit says injuries contributed to death, but did
not cause it. Age 70, married, with 10 children. Family suing for $5
million. Lawyer Claude M. Scialdone of Virginia Beach.
KEYWORDS: LAWSUIT SLIP-AND-FALL by CNB