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.