Additional Hurdles for Slip and Fall Plaintiffs
Utah’s Court of Appeals published Fox v. Brigham Young University, and in doing so, has added a potential hurdle for Plaintiffs in slip and fall cases. The Court of Appeals addressed two interrelated issues in its opinion. First, the Plaintiffs objected to the admission of an affidavit and medical report prepared by BYU’s volunteer emergency medical technicians on the basis that the evidence violated Utah Code Ann. § 78-27-33, which provides:
Except as otherwise provided in this act, any statement, either written or oral, obtained from an injured person within 15 days of an occurrence or while this person is confined in a hospital or sanitarium as a result of injuries sustained in the occurrence, and which statement is obtained by a person whose interest is adverse or may become adverse to the injured person, except a peace officer, shall not be admissible as evidence in any civil proceeding brought by or against the injured person for damages sustained as a result of the occurrence, unless:
(1) a written verbatim copy of the statement has been left with the injured party at the time the statement was taken; and
(2) the statement has not been disavowed in writing within fifteen days of the date of the statement or within fifteen days after the date of the injured person's initial discharge from the hospital or sanitarium in which the person has been confined, whichever date is later.
The Plaintiffs also appealed the trial court’s decision dismissing their claims for failure to present expert testimony to prove the cause of her fall.
The Foxes filed suit against BYU alleging that Mrs. Fox was injured as she descended a stairway on the campus, and fell. A passerby noticed Mrs. Fox and sought help. BYU’s volunteer EMTs arrived and examined Mrs. Fox. When the EMT’s arrived, they observed that Mrs. Fox’s right leg was obviously swollen and that there was deformity on both sides of her leg. However, there was no external trauma to her knee or leg, and no visible damages to the skin of of her knee or leg, and her pants were not ripped or torn
While the EMTs were assessing Mrs. Fox’s condition, she repeatedly stated that she felt her right knee go out as she was falling down. She also admitted that she had been diagnosed with osteoarthritis in her right knee, and there was missing cartilage in that knee. She also stated that she did not hold BYU responsible, but she always felt those particular stairs were too narrow and dangerous.
Mrs. Fox’s statements were transcribed, in a report which was presented to Mrs. Fox, which she signed.
Several days later, Mr. Fox went back to the scene of the fall and noted there was some cracking of the stair’s cement and that some of the metal nosing’s on the stairs were loose. He took pictures of the cement and nosings and the stairs were replaced shortly thereafter, as an improvement to the campus which was scheduled prior to Mrs. Fox’s fall.
After the Foxes brought suit, and prior to the scheduled bench trial, BYU brought a motion in limine asserting that the negligence claim failed because the Foxes did not have an expert to establish their prima facie negligence claim. Specifically, BYU asserted that Mrs. Fox admitted a pre-existing physical condition, osteoarthritis, as a potential cause for the fall. BYU also argued that the biomechanics involved in the fall, and the medical cause of the injuries were not within the ordinary purview of a lay witness, and the Foxes had to utilize an expert to prove their case.
The trial court and the Court of Appeals agreed with BYU’s position. The courts held that Mrs. Fox’s statements to the EMTs as contained in the report and the EMTs’ affidavits were admissible under Rule 803(4) of the Utah Rules of Evidence as statements made by Mrs. Fox for purposes of medical treatment and diagnosis.
The courts also concluded that Mrs. Fox’s lay testimony was insufficient to establish the element of causation because the trial court had been presented with two plausible theories of causation 1) failure of an osteoarthritis knee, or 2) defective stairs, and absent expert testimony, the court would have to speculate to choose between two theories.
This ruling is significant because defendants can now look to whether there may be other causes for the accident, not just to create doubt in jurors’ minds, but to obtain a summary dismissal of certain slip and fall claims if expert testimony is not presented by a plaintiff. This can result in weeding out suspicious claims and save insurers the expenses of trial.
Summary provided by Peter H. Barlow
