29 Trial Lawyer • Winter 2023 of the relation of the floor mat to the 90 degree angles of the underlying floor tiles. One end of the mat was perfectly aligned with tile edge, while the other end of the mat was 2-3 inches away from the tile edge. After the store employee straightened the floor mat, the edges of the mat were perfectly parallel with the lines of the floor tiles. We knew Vivian would have had to cross the misaligned floor mat to end up on the floor where she landed. Based on this information, our theory of liability became that the floor mat was not properly affixed to the tile floor, allowing it to become riffled or to overlap the edge of the adjoining floor mat. In other words, the store failed to prevent the creation of an uneven walking surface, and allowed an uneven walking surface to exist without correction. Our human factors expert educated us about how our client’s age contributed to her fall. After age 65 there is often a narrowing of peripheral vision in both the horizontal and vertical planes, particularly in women.The rods (scotopic vision) and cones (photopic vision) in the retina can also degrade, affecting ability to see in low light conditions and reducing spatial acuity and depth perception. This means that the elderly, like Vivian, may be unable to perceive and avoid hazards such as an uneven walking surface or a change in elevation like a stair, particularly in low light conditions. Foot swing height (the height of the sole of the foot above the ground at the lowest point of its forward travel in a normal walking gait) is reduced with age. A healthy, middle-aged adult will have an average foot-swing height of 7mm. An average 75-year-old will have an average foot-swing height of 4mm. While a loss of 3mm may sound insignificant, it can be enough to cause interruption of a forward stride. Once a stride is interrupted, deconditioning of the core muscles—abdominals, gluteus maximus, gluteus medius and hip flexors — slow reaction time, making recovery from a trip more difficult. For Vivian, the few millimeters of uplift on the floor mat was all it took to bring her down. A good human factors expert or gerontologist who can explain age-related declines in perception and reaction puts the injury in its proper context, and defangs the typical comparative fault arguments about “open and obvious” hazards. Visit the scene of the injury Understanding the “how” and “why” of an injury are important, but without visiting the scene of an injury the puzzle is always incomplete. When we visited the mall where Vivian fell, we were struck by the prevalence of handicapped parking stalls surrounding each of the three entrances to the store. The 11 parking stalls closest to each entrance were reserved for those with handicap permits. A simple aerial photo fromGoogle Earth showing the handicapped stalls ringing the entrances was an easy demonstrative exhibit. During discovery, we established that the store anticipated and welcomed customers with less than perfect health — the elderly, mobility challenged, mentally challenged or otherwise infirm — and that the store had to be made safe for all anticipated customers. We learned the store only did a formal inspection of the premises once each day, before the store opened to customers. The corporate representative conceded that hundreds of customers may pass through the store each day, and there may be more customers during sales events. The corporate representative also conceded that any changes to the condition of the store after the pre-opening inspection may not be noticed, and that no employee was specifically assigned to the entry/exit area where Vivian fell. We also obtained those portions of the store’s training manual that talked about the trip hazards created by floor See Fall p 30
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