Common Issues in Nursing Home Fall Claims

On Behalf of | Dec 2, 2020 | Nursing Home Abuse And Neglect, Premises Liability

The fatal fall rate for adults over 65 has doubled in the last decade. Largely because of pre-existing conditions, many older adults are unable to avoid falls, and their injuries are much more serious.

In terms of the risk of a fall, many older people have gait disorders. So, when they stumble, they almost always fall. Additionally, many older adults suffer from arthritis and other degenerative conditions which make it almost impossible to recover from a fall injury. In fact, most of these victims are unable to live independently after they fall.

Because of these serious injuries, a Lexington personal injury attorney is usually able to obtain substantial compensation for nursing home fall victims. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Legal Responsibility

Generally, nursing home owners are responsible for falls and other injuries which occur either inside the building or in the parking lot outside. Kentucky law generally divides victims into one of three categories. The category also determines the extent of the legal duty.

Nursing home residents are clearly invitees. They have permission to be on the premises and their presence benefits the owner. Arguably, nursing home visitors are invitees as well. They also have permission to be on the land. Their visits indirectly benefit owners. Visitors cheer up residents, and that benefits owners. 

If the victim was an invitee, the owner had a duty of reasonable care. That’s one of the highest legal duties in Kentucky law. In this context, this responsibility includes a duty to ensure the premises are reasonably safe, and also a duty to inspect them frequently.

ALternatively, nursing home visitors could be licensees. These individuals have permission to be on the property, but the owner does not benefit. Guest of apartment tenants or guests of hotel guests are the classic examples of licensees.

Owners still have a legal duty in these situations. However, that duty is limited to a warning about any latent (hidden) defects. In nursing homes, latent defects include things like rugs without floor anchors or a loose handrail on a staircase.

A few victims are trespassers. There is no permission and no benefit, so generally, there is no duty. At the opposite end of the age spectrum, a few legal doctrines, such as the attractive nuisance rule, protect child trespassers when they do things like break into backyard swimming pools.

Establishing Knowledge

An attorney must make effective legal arguments regarding the level of legal responsibility. Knowledge of the hazard, which is the next piece of the puzzle, is usually a fact question.

Occasionally, there is direct evidence of actual knowledge in these cases. Some examples include an admission in a deposition, a repair estimate, a regulator’s finding of a fall hazard, or a restroom cleaning report.

Typically, victim/plaintiffs must rely on circumstantial evidence of constructive knowledge (should have known). The longer the fall hazard existed, such as the aforementioned loose handrail, the more likely it is that the owner knew about it and, according to the duty of reasonable care, should have addressed the hazard.

The burden of proof in these claims is only a preponderance of the evidence (more likely than not). So, a little proof goes a long way, even if that proof is circumstantial.

Insurance Company Defenses

Assumption of the risk is one of the most common insurance company defenses in premises liability claims, including fall injury claims. This defense excuses negligence if the victim:

  • Voluntarily assumed
  • A known risk.

This defense frequently involves warning signs, like “Construction Area: Keep Out” or “Caution: Wet Floor.” These signs do not immunize landowners. They simply make the assumption of the risk defense easier to prove.

The insurance company must still prove that the victim saw the sign and understood what it means. Many older people have vision issues and cognitive impairments. So, both these elements are often difficult to prove.

An open and obvious hazard is another common fall defense. Landowners are not responsible for damages if a hazard like a sinkhole or other apparent hazard caused the fall. Once again, however, due to vision impairments and other issues, these hazards are not “open and obvious” to many nursing home residents.

Nursing home fall victims could be entitled to substantial compensation. 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 insurance or money.