Common Defenses in Slip-and-Fall Claims

| Mar 5, 2021 | Premises Liability

These incidents are among the most common and most costly kinds of injury claims. For these two reasons, many insurance companies fight these claims tooth and nail. That’s especially true if the victim fell at a Walmart or another chain retail or hospitality location. These companies do not want to set what they see as dangerous precedents, and they do not want to pay damages. Some of the more common defenses they raise are examined below.

So, a good Lexington personal injury attorney must do more than prepare a solid case. An attorney must also be ready to deal with these common defenses. This preparation means collecting sufficient evidence to weather these attacks and also knowing fine points of law which can make the difference between victory and defeat.

Assumption of the Risk

Floor hazards, like uneven surfaces or wet spots, cause many fall injuries. Typically, these incidents also involve “Caution: Wet Floor” and other such warning signs. Contrary to popular myth, such a sign is not a get-out-of-jail-free card. The sign simply makes the assumption of the risk defense easier to prove.

This defense applies if the victim voluntarily assumed a known risk. This Spongebob clip illustrates some of the legal issues involved. No one forced Patrick to run off the cliff. Clearly, he voluntarily assumed the risk. However, Patrick did not voluntarily assume a known risk. He is so stupid he is unable to read the sign.

This issue comes up frequently. Many victims, mostly because of young age or poor English skills, are intelligent people who cannot read signs very well. Moreover, even if they can read them, they may not understand what they mean. That’s especially true of signs like “Beware of Dog” and “No Lifeguard On Duty.” These warning phrases do not indicate the possible danger.

An ANSI (American National Standards Institute) approved graphic, like a stick figure slipping and falling, often addresses this deficiency. But not all signs have approved graphics.

Furthermore, some victims might not see warning signs at all. Their vision might be poor, perhaps due to advanced age, or the room might not be bright enough.

Comparative Fault

Contributory negligence might be the most common negligence defense. In this context, comparative fault is basically Legalize for “You didn’t watch where you were going.” The insurance company has the burden of proof and the burden of persuasion.

Basically, the burden of proof is a legal question, The insurance company must convince the judge the defense legally applies. This showing is not easy to make, primarily because victims have no duty of care. So, unless the victim was behaving recklessly, maybe walking while blindfolded, a judge might not apply the defense.

Some of the aforementioned conditions, like the victim’s poor eyesight or the room’s dim light, come into play here as well. It’s very hard to see where you are going in the dark.

The burden of persuasion is a jury question. Assuming the insurance company convinces the judge, its lawyers must start over again with jurors. If even one juror does not buy the comparative fault defense, it does not hold up in court. If all jurors agree that the victim was partially at fault, they must divide responsibility on a percentage basis.

Kentucky is a pure comparative fault state. Therefore, even if the victim was 99 percent responsible for the fall, the victim is entitled to a proportionate share of damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are sometimes available as well, in some extreme cases.

Lack of Evidence

For victim/plaintiffs, the burden of proof is so low in negligence claims that the lack of evidence defense does not come up very often. Falls are often the major exception. For example, if Jessica falls down the stairs and no one sees what happens, it’s difficult to know if she tripped over her own feet or tripped on a loose rug.

Usually, the res ipsa loquitur (the thing speaks for itself) doctrine applies in these situations. If the injury happened in a way which normally involves negligence, jurors may presume that the defendant was negligent.

A Kentucky court recently limited the RIL doctrine. The rule may not apply unless the defendant had exclusive control over the area. So, if Jessica fell down the stairs at rented house, the rule might not apply. The defendant owner does not have exclusive control of such premises.

To overcome this deficiency, a Lexington personal injury attorney must collect additional evidence. A partnership with an accident reconstructionist usually helps as well.

If they can overcome insurance company defenses, fall victims often receive substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We routinely handle matters in Fayette County and nearby jurisdictions. #goodelawyers