Serious Injury Claim Up In Smoke?

State Bar Required Disclaimer: The results of specific cases reported are not meant to be a prediction or guarantee of any other case. Each case depends upon a variety of factors specific to that case.

While we have been representing injury victims for decades in this area, it is amazing how often new legal issues can come up. Just when you think you have seen it all. . .

We recently began our preparations for a slip and fall trial. Our client had sustained serious injuries when a large local retailer failed to remove snow and ice from its premises. To make matters worse, the retailer’s employees had been aware for 20 years that a roof drain had been emitting freezing water directly onto a pedestrian walkway. They would occasionally salt the area but in this case, three days after the snowstorm, they simply forgot to do so. While slip and fall cases can be difficult, we strongly believe that the retailer’s failures constitute negligence on their part. As if their negligence were not enough, the retailer takes the position that the injury victim’s failure to quit smoking is a defense in this case.

To be fair, our client had been advised to quit smoking before. He had developed an addiction to tobacco as a young man and had had extreme difficulty in quitting. It is also true that cigarette smoking has complicated his recovery. Following surgery for severe fractures, the surgical wounds just did not heal well. Our client sadly has had to go through a number of skin grafting procedures to make the wound sites close.

The legal question is whether the retailer may use our client’s tobacco addiction against him. Virginia law on damages addresses a number of points but not necessarily this one. In general, an injury victim cannot claim damages for injuries that they have aggravated through their own negligence. But there is also an important concept that “the defendant takes the plaintiff as it finds him,” i.e. the defendant is obligated to pay damages for all of the consequences that flow from its negligence. If a relatively minor impact causes a fragile plaintiff to require surgery, the defendant cannot complain about the plaintiff’s pre-existing fragile condition.

And, so it would seem with tobacco use. To our client’s credit, he was finally able to kick the habit during his recovery — something that will help him both medically and legally in the long run. Isn’t tobacco addiction a “pre-existing condition?” How fair (or legal) is it for the defendant to now claim that the skin grafting and other complications which may have flowed from tobacco smoking are not their responsibility? When they neglected their obligations with regard to the public, weren’t they taking the chance that anyone (a tobacco addict? an elderly person? a child? a person walking with a cane?) might slip and fall and sustain an unusually bad injury.

As we said, new and interesting questions come up all the time. The moral of the story is, of course, to quit smoking (especially if you find you’re in a lawsuit or with any type of injury or illness). We will see what the court rules and update you as the matter proceeds. If you have been in a slip and fall accident in Virginia Beach or the Hampton Roads area, contact The Jeff Brooke Team and we will be glad to assist you.

Posted By Jeff Brooke