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The first and foremost question that needs to be addressed is the liability of the party at fault. In most cases, an injury taking place on the premises will be a business or property owner’s responsibility. Even in the event an injury was caused by the negligent conduct of an employee, the property owner will still be held liable.
If something or someone outside of your control causes a slip-and-fall injury, you need to look into any and all available legal options to get compensated for losses.
- Who are the potentially liable parties?
- Were they in fact negligent and caused your slip-and-fall injury?
Negligence may be proven through showing that something or someone caused the slip-and-fall accident OR failed to prevent it.
Watch out for a comparative negligence claim by an insurance adjuster! When dealing with a slip-and-fall case you need to anticipate and prepare to defend your position against a claim that you were careless and somehow caused or contributed to the accident.
Theories of Liability
There are theories of liability that a slip-and-fall case must support. You need to prove either that a property owner (or their employee) should have recognized a dangerous condition and removed or repaired the potential danger, but did not, OR that a property owner (or their employee) actually caused the dangerous condition leading to your slip-and-fall accident by leaving a hazardous obstacle in your way.
I would like to offer some examples to better understand these theories of liability.
Theresa lives on the second floor of an old two story apartment building that has no elevator. One day as she walks down the staircase one of the rotted wooden steps brakes in the middle and Theresa's leg falls through the hole fracturing her foot. In cases similar to this example, the key question is whether a reasonable person would have identified the condition as hazardous, and whether the defendant had ample opportunity to remedy the situation before the accident occurred.
The owner and the management of the building have an affirmative duty to inspect and repair dangerous conditions (such as worn and weakened wooden stairs) on the property. Any reasonable person in the owner's position would have inspected the structural integrity of the staircase and inevitably would have discovered the rotting wood and fixed the problem. Because a property owner failed to remedy the dangerous condition, they are liable for Theresa's injuries.
Another example would be something like this: James shops at a home improvement retail store. He is looking for gazebo materials for his backyard. As he walks through the aisles he hits his head on a substantial wooden beam protruding out from the rest of the stack. He falls down, hitting his head and back on the concrete floor. If in fact the area was poorly stacked by an employee, leaving a wooden beam protruding and partially blocking the aisle, the store is responsible for James' injuries as it was reasonably foreseeable that someone could bump into it and fall due to the condition.
The term "reasonable" often comes up in settlement negotiations. This is because to find someone negligent and therefore liable for the damages in a slip-and-fall case, a property owner (or their employees) must have failed to act as a reasonably prudent person would have acted under the circumstances similar to those leading up to the accident.
There are many factors that should be considered in this regard. I'll point out some of them that come up often:
- hazardous condition or obstacle should have existed long enough for a reasonable property owner or employee to take action to eliminate the hazard;
- a property owner or employee may have a policy of routinely checking for potential hazards on the property (there must be some sort of record) and if so, was that protocol followed immediately before the hazard;
- creation of the potential hazard was not reasonably justified and still existed at the time of the slip-and-fall;
- hazardous condition could have been made less dangerous through preventive measures like relocating the hazard or placing adequate warning signs;
- poor or limited visibility was a factor in causing slip and fall.
A lot of times property owners in slip-and-fall cases assert a defense of comparative negligence. They argue that the plaintiff is partially or totally responsible for the accident leading to the injuries. California is a comparative negligence state. Here an injured claimant's damages award will be reduced by his or her percentage of fault or share of liability.
By way of example, if you were to get an award of $100,000 for your injuries and you are found 20% percent at fault, you will be able to recover only $80,000.
Even before you start negotiating a settlement of your claim, think about potential defenses to the following questions:
- Did you engage in any activity that might have prevented you from noticing the hazard, like talking and texting on the cell phone?
- Did you have lawful access to the location or was there was a legitimate reason for you to be in the dangerous area where the slip-and-fall accident occurred?
- Were there adequate warning signs posted, but you ignored safety measures?
If you don't have a good answer to any of these questions, then you most likely will have to deal with comparative negligence and your award will be reduced by your percentage at fault. Even worse, if the defense can prove that you likely caused the accident through your own carelessness, then winning an injury claim becomes unlikely.
You need to consult a professional who deals with personal injury cases all the time. There are so many nuances that can't be foreseen without a clear and full picture of the case, that it's hard not to miss something important, which could damage your case substantially. Nothing beats knowledge and experience.
Make sure you protect your rights and get the best possible compensation for your injuries. An experienced personal injury attorney will assist you with a better understanding of all the legalities and improve your odds of winning.
Natalie A. Bausch, Esq.
BAUSCH LAW GROUP
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