“If you have to go to the bathroom, you have to go, water on the floor or not.” That comes to us from Judge Susano, writing a concurring opinion in a new slip and fall case out of East Tennessee.
The incarcerated plaintiff got up at 1:00 A.M. to use the bathroom, slipped and fell and was seriously injured. He alleged that he fell because of water that was leaking into and accumulating on the floor in the room he was confined. There is no doubt: both the Defendant and the Plaintiff knew the water was there. The trial judge split the fault 50-50, but the Court of Appeals reversed, holding that the County was 100% at fault. The Plaintiff knew about the water but, in the words of Judge Lee the plaintiff “had little, if any, choice in encountering the risk of walking on a wet floor, a dangerous condition caused by the action of the Defendants. Obviously, [Plaintiff] had no choice but to remain in his cell and could not
voluntarily leave the premises.” Read Judge Lee’s majority opinion here.
Judge Franks dissented, holding that the evidence supported a 50% fault allocation on an assumption of risk analysis.
There is more of a factual dispute than set forth above and the majority opinion and the dissenting opinion disagree as to the significance of the dispute. Suffice it to say that this opinion is worthy of note because it is one of the few opinions where (a) a trial judge is reversed on a fault allocation and (b) a person who knowingly encountered a hazard is found to be fault-free.
Then again – and this is the point of Judge Lee and Judge Susano – when you are in jail it is not like you are in the position of using a different restroom or insisting that the floor kept safe.