Goode Law Office, PLLC
  • Home
  • About Our Firm
  • Practice Areas
    • Truck & Commercial Vehicle Accidents
    • Car Accidents
    • Brain Injuries
    • Electrical Accidents
    • Negligent Security
    • Nursing Home Abuse And Neglect
    • Products Liability
    • Premises Liability
    • Medical Malpractice
    • Railroad Workers
    • Roundup Claims
    • 3M’s Combat Arms Ear Plugs Lawsuit
    • Zantac Lawsuits
  • Blog
  • Co-Counsel/Referrals
  • Contact Us
Select Page

Some Insurance Company Defenses in Elderly Fall Claims

On behalf of Goode Law Office, PLLC | Sep 7, 2020 | Nursing Home Abuse And Neglect

The direct cost of elderly falls, mostly hospitalization expenses, total about $34 billion a year. Indirect costs, such as lost work, necessary stays in long-term care facilities, and emotional damage, adds billions more to this cost. Since so much is at stake, insurance companies usually fight these claims very tenaciously. Frequently, their defense strategies revolve around one of the three areas discussed below.

So, a Lexington personal injury attorney must do more than build an evidence-based claim for damages. An attorney should also anticipate some common insurance company defenses and know how to deal with them. This total approach is the best way to obtain maximum compensation for serious fall injuries. This compensation helps elderly victims continue to enjoy the same quality of life they had before they fell.

Lack of Evidence

In car crashes and other negligence claims, lack of evidence is not a very effective defense. Victim/plaintiffs have the burden of proof, but only by a preponderance of the evidence (more likely than not). That’s the lowest burden of proof in Kentucky law. 

But falls are different. Frequently, there are no eyewitnesses. And, if the victim sustained a head injury, which is common, the victim’s recollection might be suspect.

Normally, a lack of evidence significantly reduces a claim’s settlement value. Lack of evidence makes it difficult to establish liability and damages.

Fortunately, Kentucky’s broad res ipsa loquitur doctrine often comes into play in these situations. THis legal rule, which means “the thing speaks for itself,” allows Fayette County jurors to infer negligence if:

  • The injury is usually associated with negligence and
  • The landowner controlled that area.

Assume Rick falls in part of a store that’s under construction. Even if no one saw Rick fall, he might be entitled to damages, because of res ipsa loquitur. The assumption of the risk defense, which is discussed below, often comes up in situations like Rick’s as well.

Assumption of the Risk

This third legal loophole comes up in many premises liability claims, such as falls and drownings, as well as some passenger injury car crash claims. The doctrine excuses negligence if the victim:

  • Voluntarily assumed
  • A known risk.

Premises liability assumption of the risk claims usually rely on warning signs, such as “Construction Zone: Do Not Enter” or “Caution: Wet Floor.”

Contrary to popular myth, such a sign is not a get-out-of-jail-free card. Signs do not automatically establish the assumption of the risk defense. The insurance company must still prove that the victim saw the sign, could read the sign, and could understand what the sign meant.

That first portion, seeing the sign, is often an issue in elderly fall claims. Many of these victims struggle with Age-related Macular Degeneration. AMD blurs the straight-ahead vision people need to see signs like these.

Open and Obvious Hazards

Kentucky law is in flux on this point. For many years, courts consistently held that landowners were not liable for falls due to open and obvious hazards, such as a display in a grocery store aisle or a large sidewalk crack. In the mid-2010s, a series of decisions chopped away at the open and obvious defense, at least as a complete defense to fall claims. However, 2018’s Hayes v. D.C.I. Properties revitalized this defense, at least in part.

Arguably, elderly fall claims are in a special category. Even if the fall hazard was open and obvious, an elderly person might still fall. Many of these individuals suffer from gait disorders. They frequently shuffle their feet when they walk. When younger people stumble over open and obvious hazards, they might be able to regain their balance. But, when elderly people stumble, they usually fall. 

Sometimes, the open and obvious defense, if it applies, prompts the judge to throw the case out of court. Other times, open and obvious is a subset of contributory negligence. The jury decides what percentage of fault lies with the landowner, and what percentage lies with the victim.

Kentucky is a pure comparative fault state. So, even if the victim was 99 percent responsible for a fall because the hazard was open and obvious, the landowner is still responsible for a proportionate share of damages.

Elderly fall claims are often legally complex. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. After-hours, virtual, and home visits are available.

  • Facebook
  • Twitter
  • LinkedIn

Categories

  • Car Accidents (74)
  • Construction Accidents (2)
  • Injuries (58)
  • Medical Malpractice (8)
  • Negligent Security (5)
  • Nursing Home Abuse And Neglect (27)
  • Premises Liability (14)
  • Products Liability (20)
  • Railroad Injuries (1)
  • Railroad Workers (1)
  • Truck Accidents (13)
  • Uncategorized (10)

Archives

  • January 2021 (8)
  • December 2020 (15)
  • November 2020 (13)
  • October 2020 (20)
  • September 2020 (15)
  • August 2020 (11)
  • July 2020 (17)
  • June 2020 (9)
  • February 2020 (1)
  • November 2019 (1)
  • October 2019 (3)
  • September 2019 (3)
  • August 2019 (2)
  • July 2019 (3)
  • June 2019 (6)
  • May 2019 (2)
  • April 2019 (2)
  • March 2019 (4)
  • February 2019 (4)
  • January 2019 (6)
  • December 2018 (8)
  • November 2018 (8)
  • October 2018 (9)

Recent Posts

  • Drunk Driver Kills Albany Woman in Head-On Crash
  • The Five Kinds of Driving Impairment
  • What is Medical Malpractice?
  • No Room at the Inn: The Struggle to Find Hospital Beds Following Car Crashes
  • Boone County Collision Kills One Pedestrian, Injures Another

Subscribe To This Blog’s Feed

FindLaw Network
Headshotlowerres 2018 10 15 08 59 47

How Can Goode Lawyers Help You?

Fields marked with an * are required

EMAIL US FOR A RESPONSE

Goode Law Office, PLLC

389 Elaine Drive
Lexington, Kentucky 40504

Phone: 859-469-4770
Phone: 859-363-6688

Fax: 859-309-4544

Lexington Law Office Map

Follow us on

  • Follow
  • Follow
  • Follow

REVIEW US

© 2021 Goode Law Office, PLLC. All Rights Reserved.

Disclaimer | Site Map | Privacy Policy | Business Development Solutions by FindLaw, part of Thomson Reuters