Falls are the leading cause of emergency room visits in the United States. These incidents account for some eight million contacts a year. The serious injury tally usually increases during the winter, mostly because of snow and ice falls. As outlined below, property owners have a legal responsibility to ensure outdoor safety. But many owners do not live up to this responsibility.
Broken bones and head injuries are the most common fall-related serious injuries. Frequently, these wounds are permanent. Many broken bones never entirely heal. The victim often has some permanent loss of function. Head injuries never heal at all. A combination of surgery and therapy can assuage the symptoms, but never “cure” the injury.
Because of the high level of responsibility and the serious injuries which result, a Lexington personal injury attorney can often obtain substantial compensation for victims. This compensation normally includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Hospitality slip-and-falls, mostly restaurants and hotels, are among the most common such incidents. Many of these places are still operating with skeleton crews, due to coronavirus cutbacks. As a result, even though winter is in full swing, hazards like icy patches on outdoor walkways go unaddressed.
The duty of care does not depend on the location of the hazard. Rather, the duty mostly depends on the relationship between the victim and owner, as follows:
- Invitee: Retail employees and retail patrons, whether or not they buy anything, are invitees. In these situations, owners have a duty of reasonable care. This twofold duty means they must ensure property safety and make frequent safety inspections.
- Licensee: Children who take shortcuts across parking lots on their way to and from school are usually licensees: These people have permission to be on the land, but their presence does not benefit the owner. So, the duty of care is lower.
- Trespasser: This pejorative term simply means a victim who has no permission to be on the land and does not benefit the owner. There is usually no duty of care in these situations. Tales of injured burglars who successfully sue homeowners are mostly urban legends.
Legal duty, or lack thereof, is usually a question of law which a Fayette County judge resolves during a pretrial hearing.
Knowledge of Hazard
This issue is a fact question. To answer it, the judge usually instructs jurors to follow the rule in Anjou v. Boston Elevated Railway Company, the infamous banana peel case which has dazzled and/or confused generations of law school students.
Ms. Anjou slipped and fell on a banana peel which eyewitnesses described as black and gritty. The train station owner said he knew nothing about the hazard and therefore was not responsible for Ms. Anjou’s injuries.
The court, which focused on the banana peel’s color, disagreed. Since the peel was black and gritty, as if it had been walked upon, someone should have picked it up. If the peel had been fresh and yellow, it had probably just fallen, so there would be no constructive knowledge (should have known).
Modern jurists call this rule the time-notice rule. The aforementioned ice patch is also a good example. If temperatures hover below freezing while it is raining, an owner should know that ice would accumulate.
Direct evidence of actual knowledge, such as a “cleanup on Aisle Eight” announcement, is sometimes available as well.
Insurance Company Defenses
Comparative fault is one of the most common defenses in fall claims. Essentially, insurance company lawyers argue that the victim did not watch where s/he was going. However, unless the victim admits that was the case, this defense is difficult to prove in court.
Assumption of the risk is another common defense. Owners are not liable for injuries if the victim voluntarily assumed a known risk. Assumption of the risk usually involves a “Caution Wet Floor” or other warning sign.
A sign itself does not conclusively prove assumption of the risk. The insurance company must still prove, by a preponderance of the evidence, that the victim saw the sign, could read the sign, and could understand what the sign meant. These showings are difficult to make if the victim was a small child, older adult, or a person with limited English proficiency.
Slip and fall incidents often cause serious injuries. 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.