​How to Beat the “You Should Have Been Looking At Your Feet” Argument by Insurance Defense Lawyers

Produce section of a grocery storeI recently had a case involving a case of a well-known grocery chain where my client slipped on a green bean and fell on his knee, shattering his knee cap resulting in a total knee replacement as a result.   The insurance lawyer’s chosen defense? 

1- Plaintiff should have been looking down at his feet when he was walking, and

2- alternatively, in “Hindsight” – we should have had more employees patrolling the produce area, but we didn’t know falling objects were a danger for our customers, or we would have.

Every case that I try has been focus grouped, at least once.  We perform focus groups at least once a month, and we usually do 2, sometimes 3 cases combined in a single 4 hour period.   We also have other lawyers with plaintiff cases ask us to focus group their case, which we do routinely. 

The Plaintiff "Should've Been Looking At His Feet When Walking" Defense

In nearly every single premises “slip and fall” case, the insurance lawyers scream that the plaintiff should have been looking while they walked.  That defense works pretty well for most of them.  I think the major problem it works is that, perhaps, you believe it too.  As a plaintiff, a major tool we have at our advantage is we get to present to a jury first.   Because of that, we have the first chance at framing the true issues in our case.  And I use my focus groups to learn how to frame the issues very well.

In my recent slip and fall case, prior to trial we focus grouped the case of the fall in the grocery store.  We presented the case from the defense perspective and showed that the plaintiff missed a green bean hidden in plain sight.   What we learned from the focus group was invaluable, and I will use it in every single case going forward.  It is the simple truth that I have failed to appreciate in the past. 

The concepts we learned from our focus group that we successfully transferred to trial (and that will apply to most slip and fall cases) are as follows:

1-   It is negligent to walk backward, or to walk and read a book, or walk while looking at your phone.  It is not negligent to simply walk and look at things in a store.

As one of my focus group participants so astutely stated, “They don’t put the price tags on the floor!”

2-  If you are walking in a jungle, or in a forest with roots sticking up, or in a construction zone, you know to look down because you should know the floor is not safe.   However, you walk into a store open to the public, with the expectation that they have already made the floor safe, or they would not have opened that portion of the store. 

Hindsight Defense

In the “in hindsight, we would have done everything possible to keep this from happening” defense, the focus group helped us come up with the following simple methods to overcome this silly defense.

The defense, in this case, has suggested that there is something wrong with looking at things in hindsight.  But if you think about it, every single case tried in this courthouse is tried in hindsight.  If we did not exercise hindsight, anything that is broken would never be fixed.  Any dangerous act that affects our safety would never be addressed.  There would be no consequences, and therefore no incentive to be safer. 

We are not asking the defense to exercise hindsight.  We are asking [the defendant] to exercise common sense on all the facts they had available to them before this terrible fall took place. You don’t have to exercise hindsight unless there has been a failure of foresight.   So every time the defense tells you that it's not fair to think in terms of hindsight, you just think to yourself, we’re all here to think in hindsight because [the defendant company] didn’t think in foresight. 

Do Not Buy the Insurance Lawyers LIE

One of the biggest things I try to preach to the attorneys in my firm is to “not buy the insurance LIE.”   They preach some made up rule so often they start thinking it is true.  Do not fall for it.   Who says chiropractic care and chiro bills of over $10,000 is extreme?  Who says that doctors should be able to not be judged by the actions in hindsight?   Who says that any slip and fall is automatically the plaintiff’s fault for not looking down at their feet?  Who says that an elderly person’s claim is not worth very much just because they are old?   Who says that a pre-existing injury cannot be made worse and have a devastating impact on someone’s life?   Just the insurance companies.   Do not buy their lie. 

You know these frivolous defenses are coming.   Sit down and think about every possible twist and turn the defense is going to throw at you, and use it against them.  Every case has positive facts, negative facts, and neutral facts.  Take the negative facts and arguments and figure out how to make them your friend and turn them into a sword to slay the defense.   There is nothing sweeter.  

Try your cases!

John

John Griffith
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Nashville Personal Injury Trial Attorney
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