Martin Silver is a practicing attorney with offices in Hauppauge, N.Y. He was a flooring installer before and during the time he went to law school and has since represented numerous industry people and companies. To contact him, call 631-435-0700.
A carpeted trap
A client of ours recently tripped over a carpeted platform and fell and broke her wrist while shopping. The platform was covered with the same carpet as the main floor and riser, with the carpet being wrapped over the platform nose.
We all know just because somebody falls and injures themselves does not, by itself, mean they are entitled to sue. They can only do this if they can prove, to a judge or to a jury that the fall was caused by somebody's negligence.
The carpeting in this case appeared to be properly installed. It was tightly fastened to the top of the platform, to the riser and to the floor. It was smooth without any ridges, bumps or other unevenness. So where then is the negligence?
I discussed this with an attorney who represents an insurance company, and he told me he was defending a very similar case. In his case the woman plaintiff was standing on a platform in a plumbing supply store. Just like in my case, this platform was covered with the same carpet that continued over the nosing, across the riser and onto the main floor. In his case, as the woman turned to walk out of the store she tripped and fell, fracturing a toe, because, she claimed, she didn't see the step down. At her deposition she testified:
Q. Did you see the step that you eventually fell on at any time from the time you turned around and began walking to the door until the time you actually fell?
A. As I looked ahead, all I could see is it was leading straight to the door. There was no sign of a step.
Q. Were you looking at the door or the floor or someplace else on your way out?
A. I was looking at the floor as I was walking.
In my case, the situation was a little reversed. My client tripped and fell from the main floor onto the platform.
However, the primary cause of both accidents was the same. The person fell because they did not see the step. So, whose fault is that?
Keeping in mind in these types of situations there are no clear-cut answers, let's look at some possibilities. The first and most obvious is to look to the guy who designed and/or installed the carpeting in a manner that is claimed to have resulted in a "trap" to patrons of the store. A carpet that flows smoothly from a platform to a floor may at times give the illusion of one continuous surface.
My friend feels the simple fact something unintentionally creates an optical illusion is not, in and of itself, a basis for a claim of negligence. I disagree, primarily because a situation such as this does not exist in a vacuum.
The designer or installer, when working on a retail store, knows customers will be walking onto and off the platform that he is covering. He knows, or should know, the retailer will, after the floor is finished, cover a good portion of it with racks and other displays. In my case there was a round rack of hanging dresses placed on the floor right by the platform. As my client browsed around the rack she tripped over the step. It would seem that had the step been marked by a nosing, she would be more likely to notice it as she browsed.
In my case, as in my friend's, the plaintiff's claim is primarily against the store. In his case, in which he represents the store, however, he immediately brought in the designer of the platform. In our case, I would not at all be surprised to also see the designer and possibly even the carpet contractor/installer. Then we'll have to let the jury figure it out.