According to local attorneys “slip and fall “ cases have decreased over the years.
However William Gavras attorney and managing partner in the law firm of Gorman & Gavras told the Journal more of them are being challenged in court. “When I first got to Guam which was five years ago I was amazed that the insurance companies would settle so many slip and falls. They seemed to be ignorant of the fact that slip and falls are traditionally seen as difficult cases to prove.”
Gavras said misconceptions existed in Guam that kept many companies from contesting many slip and fall claims. “The insurance companies seem to believe if there was a foreign substance or a dangerous condition of some sort on the premises then someone fell as a result that they had to pay … and it doesn’t work like that. You have to show that the owner of the premises or the possessor of the premises had notice — either constructed notice or actual notice of the defective condition. That is always one of the main hurdles in slip in falls…I think now they have come along and realized that there are defenses they can raise.”
R. Todd Thompson attorney and partner in the law firm of Mair Mair Spade & Thompson who usually represents defendants in such claims said there are some laws on the books that protect local businesses. “I think that in Guam there have been favorable jury awards in torte cases generally in the defense. Because Guam has a comparative negligence statute that if the plaintiff doesn’t show that he was less responsible for his injury than the defendant he recovers nothing. So it’s like a 50% rule.
“If the evidence shows the plaintiff should have been more careful and his responsibility was 50% or greater he gets nothing. So that’s an aspect of Guam law that inhibits people from taking these cases to court or at least taking them to trial.”
The economy also plays a large part in the number of claims on Guam. Thompson said when times are tough there are more claims. “What we’ve noticed in the past is when the economic times are bad people tend to be less inclined to turn the other cheek. They generally tend to need money more. And so they’re more inclined to go to a lawyer and bring a suit and make a big stink about something. When times are good and people have employment people obviously have better things to do than get involved in lawsuits.”
Litigators said the key in most cases is notice of a hazard and cure.
Thompson gave this scenario as an example “So the classic case is like a banana peel. If the banana peel is on the ground for five minutes or say one minute. There’s no notice to the business owner. It’s almost impossible to remediate a hazard like that within a minute. On the other hand if the banana is sitting there for half a day it’s really tough for the business owner to say ‘Oh gee I didn’t know it was there. My people had no way of doing anything about it’.”
Guam is unique regarding who chooses to pursue or not pursue litigation Thompson said. “One thing that is culturally true with Guam is that many of the people here who are injured at hotels are not Guam residents they are foreign nationals — typically Japanese tourists; culturally Japanese have much less tendency to sue than do statesiders or local residents. And so we have seen in the past cases we would expect become law suits never materialize.”
There are some things businesses can do to protect themselves from these suits. One obvious area of concern to Gavras was the use of tile on Guam. He said many companies and local businesses use tile that is simply not safe. “I think if you walk around businesses particularly their outside premises the tile that is used is extremely slippery and as much as it rains here most of the tile falls below acceptable standards. I’ve talked to tile salesman and they will tell you that most of the tile sold on Guam will not pass that standard and it’s a standard that almost all jurisdictions use.”
However Gavras said one of the benefits of bringing suit is making many places safer as a result.
“One of the things that I’ve seen is when we bring a lawsuit against a business for a slip and fall and then by the end of the lawsuit you go over there or during the lawsuit they go and they fix the problem. Then you go back three years later and the problem is still fixed and that makes you feel good. Because you are not just trying to compensate somebody for a bad injury which you can never fully compensate with money but you are preventing injuries from occurring in the future.”
Attorney Robert L. Keogh who specializes in personal injury speculated on the trend of more litigation going to trial. “I think from an insurance company standpoint that [less economic activity] would also mean there would be fewer people who are insured so there would be less in premiums coming in.” MBJ
