Overcoming Common Insurance Company Defenses in Fall Claims

| Nov 24, 2020 | Injuries, Premises Liability

The economic cost of slip-and-fall injuries, mostly lost work and medical bills, is a staggering $49 billion per year. The noneconomic costs, such as pain and suffering, emotional distress, and loss of enjoyment in life, are almost incalculable and often permanent. Elderly falls are a good example. Many of these victims are so afraid of a repeat fall that they essentially become prisoners in their own homes or nursing home rooms.

Since so much compensation is available, insurance company lawyers typically pull out all the stops in an effort to reduce or deny compensation to victims. Some of the more common defensive postures are outlined below.

Insurance company lawyers do what it takes to protect corporate profits. Lexington personal injury attorneys, on the other hand, do what it takes to protect victims’ legal and financial rights. Insurance companies would gladly trample on both these rights if they are given half a chance. As is the case so often in life, preparation is a key to success. Preparation is much easier when one has a general idea of what might be coming.

Comparative Fault

This legal defense is quite common in all kinds of negligence cases, from falls and other premises liability claims to car crashes. Comparative fault shifts part of the blame for the accident from the tortfeasor (negligent actor) to the victim.

Briefly, in Kentucky, owners are negligent and liable for slip-and-fall injuries if they had a legal duty and they knew about the hazard which caused the fall.

Whenever there is a dispute, it is very rarely entirely one person’s fault. So, rather than defeat the idea of contributory negligence, a personal injury attorney’s best bet is to minimize the victim’s fault.

Assume Rick, who is 75, trips over loose carpet and falls down the stairs at a bed and breakfast. Normally, people should avoid hazards like this one. Carpet bumps are probably not open and obvious hazards, as outlined below, but they are nevertheless avoidable.

However, many people of Rick’s age struggle with Age-related Macular Degeneration. AMD blurs straight-ahead vision, especially when the lights are low. So, there is a good chance that Rick did not see the fall hazard, particularly if he had not stayed there before.

This approach is particularly effective in the Bluegrass State. Kentucky is a pure comparative fault jurisdiction. Even if the victim is 99 percent responsible for the injury, the tortfeasor is still liable for a proportionate share of damages. 

Assumption of the Risk

This defense is almost unique to premises liability claims. Unlike comparative fault, assumption of the risk completely excuses negligence. This defense applies if the victim:

  • Voluntarily assumed
  • A known risk.

To better understand this defense, let’s analyze this SpongeBob SquarePants clip. Regular viewers with too much time on their hands might recognize this scene from Patrick Smartpants, in which a friendly game of tag went sideways.

Patrick voluntarily ran off the cliff. So, he voluntarily assumed the risk of falling. The fact that the warning sign was on the precipice of the cliff and not further away from it is a head-scratcher, but hey, it’s a cartoon.

However, the risk was not a known one. For whatever reason, Patrick could not read the sign, at least until it was too late. 

Warning signs like “Caution: Wet Floor” have the same dynamics. Many victims have limited English proficiency, so they are not able to translate such phrases into their mother tongues. That’s especially true if the victim was from Russia, Korea, or one of the many other countries that does not use the Roman alphabet.

Additionally, even if they could read the sign, they might not equate a wet floor with a fall hazard. That’s a rather far logical leap which many of us take for granted, but not everyone follows.

To overcome this problem, warning signs should have pictures of people falling. But not all signs have such graphics.

Open and Obvious Hazard

Until 2010, this defense was absolute in Kentucky. If the hazard was open and obvious, like a banana peel on a restaurant floor, victims were not entitled to compensation as a matter of law. Since then, the Kentucky Supreme Court has chipped away at the defense, but has not eliminated it altogether. So, even if the hazard was clearly avoidable, the court generally still examines the specific facts.

Let’s return to elderly Rick and change the facts a bit. Now assume that, as is common in older bed and breakfasts, the staircase was unusually narrow and steep. Victims should be able to see such obstacles and avoid falls. But again because of Rick’s vision problem, he might not have seen this open and obvious hazard. So, it all goes back to the evidence in the case.

Preparing a case is not enough. Lawyers should be ready for some common insurance company defenses as well. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Attorneys can connect victims with doctors, even if they have no money or insurance.