Slip and Fall Lawsuit Involving a Driveway Covered With Snow and Ice*

This is a review of a slip and fall lawsuit in which a woman was injured when she slipped and fell on an ice covered portion of her neighbor’s privately owned driveway. As a result of the fall, the woman suffered serious bodily injuries which necessitated hospitalization and lengthy therapy.

All attempts to negotiate a personal injury settlement with the neighbor’s insurance company failed. As a result, the woman retained a personal injury lawyer and filed a slip and fall lawsuit against her neighbor.

Statement of Facts...

On January 2nd, 2011, at approximately 6:30 a.m., Nicole Tagamont left her house to take her dog Spiro for his morning walk. For several days the weather had been alternating between snow and rain. It was later established the temperature on that day was about 32 degrees. Along with being near freezing, it was misting and foggy that morning, making it somewhat difficult to see.

Tagamont and Spiro exited Tagamont’s home and began the walk. The usual walk took Tagamont and Spiro directly in front of Atmerk’s home. While Tagamont was walking, Spiro’s leash broke, and as it did, Spiro ran onto Atmerk’s driveway. Tagamont hurriedly walked after him. 

As she stepped onto Atmerk’s driveway, she slipped and fell on a patch of ice. The fall resulted in a fracture of her left clavicle, as well as contusions and abrasions to her left arm, and to the left side of her face.

At or about the time Tagamont fell, Atmerk was in her kitchen beginning to make coffee. Atmerk glanced out her kitchen window and saw the fall. Atmerk threw on her coat and ran outside to help Tagamont.

Tagamont would later testify in her pre-trial deposition that as Atmerk was assisting her to her feet, she heard Atmerk say, “I’m so sorry. Last night I told my husband to throw some salt on that ice."

Eventually, Tagamont would file suit against Atmerk, asking for the damages that were a result of Atmerk's negligence.

The Lawsuit and Motion in Limine...

Tagamont's slip and fall lawsuit included a demand for compensation for the following:

• Her medical bills
• Her out-of-pocket expenses (including prescription and over the counter medicine, bandages, and other items required for her treatment)
• Her lost wages
• Her pain and suffering

Atmerk decided to fight the slip and fall lawsuit and retained a personal injury attorney. Atmerk's counsel was concerned about some testimony that came up during a deposition.

Earlier, Atmerk's counsel had been allowed to depose Nicole Tagamont. This type of meeting is common in many trials, since it allows each side to better understand what they will be up against during the trial. It also allows for both sides to question about as many witnesses as they like in an effort to "whittle down" the number of those whose testimony will be essential at trial.

When deposed, Tagamont stated that Atmerk had said: “I’m so sorry. Last night I told my husband to throw some salt on that ice." Atmerk's attorney was concerned that during the slip and fall lawsuit, the court might consider this a "Res Gestae" statement by Atmerk.

A Res Gestae statement is a statement made by either a party or a witness in a lawsuit or a criminal case which was considered to have been made spontaneously and without time to deliberate or manipulate. They are statements which are exceptions to the hearsay rule and are normally admitted in court.

If the Court decided Atmerk's statement was Res Gestae, then Tagamont could take the stand and testify to what Atmerk had said. The jury in the injury trial would then hear testimony that Atmerk had virtually admitted her responsibility for Tagamont's accident.

To head off this potentially very damaging testimony, Atmerk's attorney drafted a request for a Motion in Limine.

If it's granted, a Motion in Limine will exclude a particular topic from being discussed in front of a jury. The Motion is designed to prevent prejudicial or confusing evidence from being presented during a trial.

If any side violates a Motion in Limine that has been granted, they will be found to be in contempt of court and subject to fines and even possible jail time.

In this slip and fall lawsuit, Atmerk's Motion in Limine argued that Atmerk’s statement was really meant as Atmerk’s way of saying she was sorry Tagamont had fallen, and that her statement was not an admission of responsibility for the fall.

So as to not prejudice the jury, Atmerk asked the statement not be allowed to be discussed during trial.

Outcome...

After hearing arguments from both sides on the issue of the Motion in Limine, the Court rules as follows:

"While we understand one neighbor’s compassion for another’s plight, the issue of responsibility in this case is dependent on more than just Atmerk’s statement that she told her husband to “salt the ice." 

That admission of acceptance of responsibility cannot go unnoticed, especially as there was no proof offered by Atmerk that the property was anyone else’s responsibility but hers.

Therefore the Motion in Limine filed by the Plaintiff Atmerk is denied. Tagamont will be entitled to ask Atmerk if, at the time of Tagamont’s fall, Atmerk made an admission of responsibility for the icy conditions which resulted in Tagamont’s fall and her resultant injuries."