Every year between November and March, tens of thousands of people slip and fall on snow and ice. Most of these falls cause serious injuries. These conditions are especially hazardous in the Bluegrass State. Many Kentuckians are not used to walking in ice and snow. And, many Kentuckians cannot spot black ice until it is too late.
Broken bones and head injuries are the most common fall-related wounds. Frequently, broken bones never entirely heal. Something like a broken shoulder often causes a permanent loss of motion, even after physical therapy ends. Additionally, brain injuries are always permanent. When brain cells die, they never regenerate.
Because of the elevated risk of serious injury, a Lexington personal injury attorney can normally obtain substantial compensation in these cases. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. However, these claims are rather complex.
Most of the aforementioned ice and snow falls occur away from home. As such, the property owner is typically responsible for the aforementioned damages. In most cases, the property owner did not intentionally cause the fall. Negligence, or a lack of care, is essentially a mistake. And, we must all accept responsibility for the mistakes we make. Lexington would be an even better place to live if everyone did that.
The precise level of responsibility usually depends on the relationship between the property owner and victim, as follows:
- Invitee: Most fall victims are invitees. They had direct or indirect permission to visit, and their presence benefited the owner, either economically or non-economically. Since the relationship is so close, most property owners have a duty of reasonable care in these situations.
- Licensee: A guest of a hotel guest is usually a licensee. The hotel guest is an invitee, because the owner benefits. But the owner does not benefit if an indirect guest walks through the parking lot. Therefore, in these situations, the landowner usually has a duty to warn about latent (hidden) defects, such as a nonfunctioning light.
- Trespasser: If the victim had no permission and there was no benefit, there is generally no duty. Certain exceptions, like the frequent trespasser rule, protect some trespassers in some cases.
Additionally, victim/plaintiffs must prove, by a preponderance of the evidence (more likely than not), that the owner knew or should have known about the hazard. Direct evidence of actual knowledge includes property inspection reports or known sidewalk depressions where ice accumulates. The weather forecast could be sufficient to establish constructive knowledge (should have known).
Most outdoor ice falls occur in parking lots and on sidewalks. Legal control is sometimes difficult to establish, at least at first blush.
Assume Tim slips and falls on ice in a mini-mall parking lot. Generally, individual stores are responsible for the area immediately in front of their businesses. The mall owner is usually responsible for common areas, like the large central parking lot. So, depending on the exact location of the fall, either party could be responsible for Tim’s injuries.
Roughly the same thing applies to residential homes. The homeowner must normally maintain the walkway to and from the front door and the driveway. The city must normally maintain the street. The sidewalk is in a grey area.
When legal action begins, it is important to name the correct party as a defendant. A failure to do so probably does not torpedo the claim, but it does cause a costly delay.
The Open and Obvious Defense
A few years ago, it looked like the Kentucky Supreme Court might kill one of the most common insurance company slip-and-fall defenses. But some recent decisions have given this doctrine new life. Essentially, landowners are not responsible for fall injuries if the hazard was open and obvious. Snow and ice seems to fit squarely within this category.
However, the specific type of hazard matters. A large sheet of white ice or a large snowdrift is probably an open and obvious defense which most people should be able to avoid. A patch of thin black ice is different. Black ice is the same color as the surface and even slicker than white ice. Also, a small dusting of snow is almost impossible to see.
The conditions matter as well. Many ice slip-and-falls occur at night, when it’s much harder to see such hazards. Additionally, many older people suffer from Age-related Macular Degeneration. AMD blurs straight-ahead vision. Moreover, many older people suffer from gait disorders. So, when they slip even a little, they are unable to regain their balance.
Watch out for ice and snow in the coming weeks and months. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. You have a limited amount of time to act.