Law Office of Andrew Bergh

December, 2017
Division One reinstates trip-and-fall claim notwithstanding claimant’s lack of memory
by Andrew Bergh

You’ve been contacted by a prospective client who fell while leaving a store. She doesn’t remember how or why she fell and there are no eyewitnesses. Do you commiserate with the prospective client as you also politely explain why you can’t accept her case? Maybe – but before making a final decision, I would highly recommend that you first read Mehlert v. Baseball of Seattle, Inc., _ Wn. App. _ (2017).

If like me you’re a glutton for punishment and root for the Seattle Mariners, you probably know there are several Mariners Team Stores, including one in downtown Seattle at the corner of 4^{th and Stewart.
Having shopped there myself, I know firsthand how the entrance has an
unusual configuration. It consists generally of three semicircular
concrete steps with a plywood ramp placed squarely in the center to make
the store accessible by wheelchair.}

Virginia Mehlert visited the downtown store on March 22, 2012. As she left to go to another store, Mehlert pushed open the front door and turned to say goodbye to one of the employees. After taking one or two steps, she had a “sensation of falling” to her left. Mehlert then lost consciousness from hitting her head as she fell, and the first thing she remembers after that is talking to a paramedic. Mehlert was found on the sidewalk just left of the stairs, bleeding from a cut over her eye. Far more serious than that, however, was the closed head injury that she suffered.

Mehlert filed suit in King County Superior Court against the tenant and landlord of the store, seeking damages for their alleged failure to maintain the premises in a reasonably safe condition. After the defendants successfully moved for summary judgment on the ground that she had no proof of causation, Mehlert timely appealed.

In a concise opinion authored by Judge Mary Kay Becker, a unanimous Court of Appeals (Division One) six weeks ago reversed the order of dismissal.

As every personal injury lawyer should know, a negligence claim has four elements: duty, breach, causation, and damages. The Mehlert defendants acknowledged that they owed a duty to protect Team Store customers from dangerous conditions on the property. They conceded for purposes of summary judgment that the ramp created a dangerous condition. They accepted the conclusion of plaintiff’s engineering expert that the ramp – by not having handrails on both sides – failed to comply with the applicable building code. And it was undisputed that Mehlert had suffered damages. Consequently, as the Court of Appeals observed, the “sole issue for [its] consideration is whether the lack of handrails was a cause of Mehlert’s injuries.”

Time to brush up on our basic principles of causation, as identified by Division One:

A proximate cause is one that in natural and continuous sequence, unbroken by an independent cause, produces the injury complained of and without which the ultimate injury wouldn’t have occurred.

Direct evidence – or “precise knowledge” of how an accident occurred – isn’t required. Instead, circumstantial evidence will suffice.

The pertinent inquiry is whether a reasonable person could conclude that “there is a greater probability that the conduct in question was the proximate cause of the plaintiff’s injury than there is that it was not.”

Causation is usually a question of fact for the jury. When the causal connection is so “speculative and indirect” that reasonable minds could not differ, however, it becomes a question of law for the court.

Mehlert was the only witness to the fall, and through no fault of her own on account of her closed head injury, couldn’t shed much light on its circumstances. She didn’t remember what caused her to fall. She didn’t know whether she was on the stairs, ramp, or somewhere else when she started to fall. And she didn’t know what she struck her head on. On the other hand, what Mehlert could recall was that she was “headed in the direction of down the stairs or down the ramp” just before she fell, and that she “wanted something to grab, but there was nothing to grab.” When asked if she recalled reaching for something, Mehlert testified that she “remember[ed] wanting to because [she] was falling.”

If all this sounds pretty bleak on the causation issue, not to worry because help was on the way!

To prove causation, Mehlert retained Dr. Erin Harley, a human factors expert with a doctorate in cognitive psychology. Her opinions included the following:

Given her stride length, Mehlert was “most likely” at the top of the stairs when she fell.

The middle placement of the ramp effectively divided the stairs into two stairways approximately 19½ inches wide. This was “impermissibly narrow” because studies have shown that 29 inches is the “minimum safe stair width” for a “single file stair” in a public place, especially when most people descending a stairway usually maintain an approximate distance of six inches from the wall.

The narrow stairways “constrained the path of egress” from the store, thereby increasing the likelihood that a customer would “inadvertently contact” the raised edges of the ramp and “potentially suffer a trip-and-fall event” while trying to exit.

Mehlert’s description and the nature of her injuries were “consistent with the kinematics of a fall resulting from a trip.”

Harley also relied on several research studies, including one concluding that in “moments of destabilization,” most people using a stairway can reach out and successfully grab a handrail. According to another study, said the expert, the effectiveness of handrails in preventing falls is not dependent on “the need to look directly at the handrail.”

Predictably, the defendants contended that since Mehlert couldn’t remember why or where she fell, it was no more than “speculation and theory” that their conduct had caused her injuries. But as Division One pointed out, Mehlert’s theory of causation didn’t require an explanation along those lines. Instead, consistent with her human factors expert’s opinion, Mehlert’s theory was that if appropriate handrails had been present, she would’ve been able to lessen or prevent her injuries by reaching out and grabbing one.

The Court of Appeals summed up its holding with the following:

Harley’s testimony together with the rest of the evidence would allow reasonable jurors to infer causation without speculating. Mehlert has submitted proof that the placement of the ramp without handrails was a but-for cause of her injuries, notwithstanding her inability to recall how or why she fell.

By the way, if you’ve never been to the Mariners Team Store in downtown Seattle and consider yourself the “visual type,” the opinion in Mehlert includes a photograph of the front of the store. While maybe not worth a 1000 words, I’d say it’s worth at least 500.

Mehlert isn’t out of the woods, of course, since the defendants only conceded the breach-of-duty element for purposes of their summary judgment motion. But if the property did in fact violate the building code by not having handrails, between that evidence and Harley’s detailed opinions, I like Mehlert’s chances.

Andrew Bergh, WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases, including professional liability and insurance bad faith.