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Subrogating theSlip and Fall Claim         John Leffler, PE       FORCON International                    Atlanta     Robe...
Overview Thousands of slip-fall events occur every year   • Primary causation is walkway traction   • A high-energy fall ...
Typical claimants  Employees    • At primary worksite - engaged in work tasks or during      transitions    • At client’s...
Intrinsic and extrinsic factors   Slip-fall investigations may warrant analysis of:     • Intrinsic elements: the claiman...
Common types of slip events  Heel strike (straight and curved travel)    • Leading heel contacts walkway & slides    • Fo...
Walkway traction &            testing
Introduction: Walkway Traction  Traction is related to:    • Coefficient of friction (COF) between two surfaces,      typ...
Introduction: Walkway Traction  Pedestrian traction is related to:   • Slip resistance:      – “The relative force that r...
Walkway Traction  Codes & standards require walkways to be slip   resistant – without defining how this is to be   determ...
The Range of Values for Traction  In human subject research    • Values for traction demand range from COF      of about ...
Walkway Traction Testing  The two most robust ways to attempt to determine   the adequacy of walkway traction are:    • R...
Walkway Traction Testing  The new perspective   • Tribometer measurements must be reliably correlated     to actual pedes...
General Features of Tribometers  Testfoot: the simulated “shoe” or “foot” that   contacts the walkway surface  Types of ...
Tribometers  Manual dragsleds   • Horizontal Dynamometer Pull Meter     (C1028)   • Technical Products Model 80   • Ameri...
Tribometers   Articulated strut    • Brungraber Mark II PIAST       – uses a 10 pound weight for         testfoot actuati...
Tribometer Testing Issues Surface contouring and coarse texturing may  be too “severe” to provide consistent results Con...
Comments: Tribometers & Testing  ASTM standard test methods for the English XL &   Brungraber Mark II have been withdrawn...
Walkway SurfaceIssues to Consider
Walkway Surface Basics  Roughness & asperities   • Surface roughness: the average height of the     microscopic surface f...
Walkway Surface Basics   Roughness & asperities    • Smooth flat walkways (without much roughness or      asperities) rel...
Walkway Surface Types • Manufactured    • concrete pavers and blocks, ceramic tile,      prefinished wood planks, marble, ...
Walkway Slope Effects  All slopes will affect traction    •   Gravity causes an increase in required traction    •   Slop...
Walkway Surface Finishes  Types of coatings    • Paints, stains, acrylic sealers, varnishes        – A liquid solvent or ...
Briefly: Bathing Surface Traction  Bathing surface slip-falls are common  Slip resistance requirements: metal tubs    • ...
Briefly: Bathing Surface Traction  Commercial properties can be expected to have   slip resistant features in bathtubs   ...
Subrogation Targets:Who Created or Allowed the Hazard?     (Assuming we’ve shown the slip hazard exists)
Who Created the Slip Hazard Initially?   Manufactured walkway surfaces    • manufacturer, designer, installer   Fabricat...
Who Created the Slip Hazard Pre-Incident?   Finishes    • Floor maintenance subcontractor    • Cleaning chemicals & suppl...
Who Allowed the Slip Hazard to Exist?   Property possessors    •   Worn-smooth surfaces    •   Flaking or loose coatings ...
Other Issues to   Consider...
What Duty is Owed to the Claimant?   The duty of care owed to visitors by the    property possessor depends on the visito...
What Duty is Owed to the Claimant?Alternative Legal Duty Analysis  Was the plaintiff lawfully or unlawfully on   the prop...
Was the Duty Owed Breached?   Defendant must have notice of the    hazardous condition in order to have    breached his d...
Other Extenuating Circumstances?   Claimant has contributory intrinsic issues   Industrial plants & bulk contaminants   ...
Conclusions  Slip-fall incidents can be deadly  Proving a workers’ comp subrogation slip-fall   case requires establishi...
Thank you!         John Leffler, PE        JLeffler@forcon.com              (800) 390-0980 Robert F. Horn, EsquireHornR@wh...
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SUBROGATING THE SLIP AND FALL

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Presentation at National Association of Subrogation Professionals National Conference in November 2012.

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SUBROGATING THE SLIP AND FALL

  1. 1. Subrogating theSlip and Fall Claim John Leffler, PE FORCON International Atlanta Robert F. Horn, Esq. White and Williams LLP Philadelphia
  2. 2. Overview Thousands of slip-fall events occur every year • Primary causation is walkway traction • A high-energy fall & significant or fatal injuries may result Some entity created each legitimately slippery walkway, or allowed it to exist • Subrogation may be viable, if an unreasonable hazard exists • The claimant’s legal status on the premises & the duties of other parties must be analyzed Evaluating walkway traction is important • Reliable traction testing can be a key for recovery • Different jurisdictions have had varied holdings regarding this testing
  3. 3. Typical claimants  Employees • At primary worksite - engaged in work tasks or during transitions • At client’s or vendor’s location • In transit (airports, restaurants)  Visitors • Customers • Contractors working onsite • Vendors making deliveries • Passersby
  4. 4. Intrinsic and extrinsic factors  Slip-fall investigations may warrant analysis of: • Intrinsic elements: the claimant – pre-existing medical conditions – medications – fall kinematics & biomechanics – expected vs. unexpected injuries • Extrinsic elements: the surrounding environment and walkway – walkway traction – contaminants
  5. 5. Common types of slip events  Heel strike (straight and curved travel) • Leading heel contacts walkway & slides • Forward momentum exacerbates the slip • Leading leg cannot support body weight  Toe-off • Trailing foot slips as the toes push off • Rarely results in a fall – most weight has shifted to leading leg  Fore-aft split • Lower extremities not strong enough to keep from spreading into an increasing-length stride • Fall to the side is typical - elderly persons
  6. 6. Walkway traction & testing
  7. 7. Introduction: Walkway Traction  Traction is related to: • Coefficient of friction (COF) between two surfaces, typically separated into: – static: maximum when about to move (SCOF) – dynamic: maximum when about to stop (DCOF)
  8. 8. Introduction: Walkway Traction  Pedestrian traction is related to: • Slip resistance: – “The relative force that resists the tendency of the shoe or foot to slide along the walkway surface. Slip resistance is related to a combination of factors including the walkway surface, the footwear bottom, and the presence of foreign materials between them.” [ASTM F1646] • Slip resistance is more than just a COF measurement - involves issues with the pedestrian
  9. 9. Walkway Traction  Codes & standards require walkways to be slip resistant – without defining how this is to be determined • Past efforts to require specific traction levels have all been withdrawn • To require a particular traction level would require agreement about which devices and methodologies to be used for testing slip resistance - and there are no such agreements • The absence of codified test methods opened the door to “experts” that use arbitrary, homegrown, or otherwise subjective methods - in testimony
  10. 10. The Range of Values for Traction  In human subject research • Values for traction demand range from COF of about 0.17 – 0.40 in human slip research  Popular concept: a value of 0.5 is the “threshold” for adequate walkway traction • 0.5 value commonly referenced for 60 years – reliable scientific foundation for this is lacking – test methods & research have continually evolved & improved - reducing the needed “safety factor” for some analyses – there can be no “one size fits all” threshold value for safe walkway traction – there are too many variables
  11. 11. Walkway Traction Testing  The two most robust ways to attempt to determine the adequacy of walkway traction are: • Relevant human subject lab testing • Competent use of a walkway tribometer, on appropriate surfaces, with scientifically defensible interpretation of the results  Various designs of tribometers are used to analyze walkways • Each device & method has its advocates - a source of much controversy • Each device may provide different measurement values for the same surface!
  12. 12. Walkway Traction Testing  The new perspective • Tribometer measurements must be reliably correlated to actual pedestrian slip experiences – Correlation established through testing with human subjects and tribometers • A “reliable” tribometer: – will discriminate surfaces found “slippery” (by humans), from those found to be reasonably slip resistant – will not necessarily provide the same numerical values (for slip resistance) as other reliable tribometer designs - but this is OK
  13. 13. General Features of Tribometers  Testfoot: the simulated “shoe” or “foot” that contacts the walkway surface  Types of tribometers (common in USA) • Dragsleds: manual and motorized • Articulated strut – designs loosely based on human motion  Technical issue with some tribometer designs • Adhesion or “sticktion” – If the testfoot rests motionless on the walkway surface for even an instant, molecular bonding (“sticktion”) occurs – All dragsleds have sticktion in SCOF testing – known for decades
  14. 14. Tribometers  Manual dragsleds • Horizontal Dynamometer Pull Meter (C1028) • Technical Products Model 80 • American Slip Meter 825  Motorized dragsleds • Horizontal Pull Slipmeter • BOT 3000
  15. 15. Tribometers  Articulated strut • Brungraber Mark II PIAST – uses a 10 pound weight for testfoot actuation • Brungraber Mark III PIAST – uses a spring for testfoot actuation • English XL VIT – uses a CO2 cartridge for testfoot actuation
  16. 16. Tribometer Testing Issues Surface contouring and coarse texturing may be too “severe” to provide consistent results Contaminant issues in tribometer testing: • Soft contaminants may accumulate on the testfoot • Loose surface finishes and crumbly fragments of contaminants will affect results – varied positions of larger fragments – compliance of testfoot material around large fragments versus compliance of footwear – reduced contact pressure of testfoot versus a pedestrian– soft fragments crush less
  17. 17. Comments: Tribometers & Testing  ASTM standard test methods for the English XL & Brungraber Mark II have been withdrawn – but the machines still work & may be the best choice  The expert must be an expert, not just a machine operator • Operation of the tribometer is only part of a robust, defensible analysis • Competent experts will be aware of recent research, new standards, and the need for reliable correlation to human slip experiences • The era of subjective, indefensible testing is ending • Competent counsel will know of competent experts
  18. 18. Walkway SurfaceIssues to Consider
  19. 19. Walkway Surface Basics  Roughness & asperities • Surface roughness: the average height of the microscopic surface features of the walkway – a very general way to view a surface’s traction • Surface asperities: “individual” microscopic features that protrude above the basic “average” surface – high, sharp asperities cut through contaminants and are mechanically (and molecularly) gripped by the footwear
  20. 20. Walkway Surface Basics  Roughness & asperities • Smooth flat walkways (without much roughness or asperities) rely more on molecular bonding and adequate time for the shoe to “squeeze out” contaminants • Distribution of asperities will vary significantly on some surfaces - so traction will vary as well  All normal walkways have contaminants • The unreasonably hazardous contaminants are the concern
  21. 21. Walkway Surface Types • Manufactured • concrete pavers and blocks, ceramic tile, prefinished wood planks, marble, terrazzo, bricks, vinyl tile and sheet, plastic/sawdust deck boards, metal grating & plates, carpet & mats  Fabricated (onsite) • sanded wood boards, concrete, asphalt, liquid polymers  Natural • slate, rock, stone, gravel
  22. 22. Walkway Slope Effects  All slopes will affect traction • Gravity causes an increase in required traction • Slopes & ramps are typically most slippery downhill • Many tribometers don’t work on slopes • Slope effects are ignored by many “experts”
  23. 23. Walkway Surface Finishes  Types of coatings • Paints, stains, acrylic sealers, varnishes – A liquid solvent or carrier, with solids, polymers, pigments – Traction additives (grit) may be added • Waxes, polishes • Adhesive “rubbery” coatings  Balance benefits/disadvantages • Coatings typically improve appearance and ability to keep the walkway clean • Coatings typically reduce traction
  24. 24. Briefly: Bathing Surface Traction  Bathing surface slip-falls are common  Slip resistance requirements: metal tubs • Are based on 1977 standardized test method (ASTM F462) that uses obsolete tribometer • Were never based on human falls, just manufacturer capability • Requirements only apply while tub is under warranty  Slip resistance requirements: plastic tubs • Reference to F462 testing eliminated in 2005 • Only subjectively required to be “slip resistant”
  25. 25. Briefly: Bathing Surface Traction  Commercial properties can be expected to have slip resistant features in bathtubs • Features may wear significantly over time • Add-on treatments (coatings with grit) are available  Most tribometer testing of bathtubs can be challenged on reliability and relevance • Tribometers typically use testfeet designed to simulate shoe soles, not bare feet • Bathtub surfaces are typically convex; testfeet are planar
  26. 26. Subrogation Targets:Who Created or Allowed the Hazard? (Assuming we’ve shown the slip hazard exists)
  27. 27. Who Created the Slip Hazard Initially?  Manufactured walkway surfaces • manufacturer, designer, installer  Fabricated walkway surfaces • designer, installer  Natural walkway surfaces • designer, installer  Finishes • manufacturer, designer, installer
  28. 28. Who Created the Slip Hazard Pre-Incident?  Finishes • Floor maintenance subcontractor • Cleaning chemicals & supplies providers, service techs  Contaminants • Contractors - construction debris and spills • Water accumulation – Landscape sprinkler issues – Roof drainage issues – Water management issues of neighboring properties
  29. 29. Who Allowed the Slip Hazard to Exist?  Property possessors • Worn-smooth surfaces • Flaking or loose coatings • Grit or texture additives worn away • Hazardous contaminant accumulation: lax housekeeping  Vendors • Contractors for remodels and additions – OSHA Multi-Employer Worksite » Controlling Employer (able to compel hazard abatement) » Correcting Employer (assigned to correct hazards)
  30. 30. Other Issues to Consider...
  31. 31. What Duty is Owed to the Claimant?  The duty of care owed to visitors by the property possessor depends on the visitor’s legal status, and state law.  The traditional standards are: • Invitee: shopper, client – Duty: reasonable care + higher duty of inspection • Licensee: by consent, social guest – Duty: reasonable care • Trespasser: no legal right to be there – Duty: refrain from willingly injuring, or from wanton conduct
  32. 32. What Duty is Owed to the Claimant?Alternative Legal Duty Analysis  Was the plaintiff lawfully or unlawfully on the property? • Lawfully: reasonableness standard • Unlawfully: refrain from willful/wanton conduct Applies in: IL, IA, NE, ND, WI
  33. 33. Was the Duty Owed Breached?  Defendant must have notice of the hazardous condition in order to have breached his duty. • Did the defendant breach his duty of care owed to the claimant? – Actual knowledge of slip hazard? – Should have known of slip hazard? • Timeliness of notice • Practice and procedures of inspection
  34. 34. Other Extenuating Circumstances?  Claimant has contributory intrinsic issues  Industrial plants & bulk contaminants • foreseeable?  Person trained in the specific hazard, or the hazard is open & obvious  Property possessor performs reasonable periodic maintenance  Failure to maintain a proper lookout
  35. 35. Conclusions  Slip-fall incidents can be deadly  Proving a workers’ comp subrogation slip-fall case requires establishing causation through the use of competent expert testimony  Depending upon the hazard, many different entities may be reasonable targets for a subrogation action
  36. 36. Thank you! John Leffler, PE JLeffler@forcon.com (800) 390-0980 Robert F. Horn, EsquireHornR@whiteandwilliams.com (215) 864-7132

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