Common Defenses in Fall Injury Claims

by | Aug 24, 2021 | Injuries

Falls cause serious injuries. In fact, slip and fall incidents are by far the leading cause of Emergency Room visits in the United States. Motor vehicle crashes, which are second, merit about half as many visits. The medical bills alone in these cases exceed $70 billion per year.

Because so much money is at stake in these claims, insurance company lawyers usually fight these matters to the bitter end. And, since fall accident claims are so common, these lawyers, and their support teams, have lots of experience in this area.

So, it’s important for a Lexington personal injury attorney to anticipate insurance company defenses and cut these lawyers off at the pass. That’s the best way to ensure maximum compensation for your serious injuries. Victims need and deserve this compensation to pay medical bills and otherwise move on with their lives.

Comparative Fault

Contributory negligence is perhaps the most common insurance company negligence defense. It comes up in a variety of contexts, including vehicle collisions and falls. In the typical contributory negligence fall claim, the victim was either walking too fast or not paying attention, and then tripped over something like a crack in the walkway or uneven flooring.

Before we look at this defense, let’s take a quick step back and talk about what a victim/plaintiff must prove in court.

First, victims must prove the landowner had a duty of care. The extent of the duty usually depends on the relationship between the owner and victim. Most Kentucky fall victims are invitees. The victim had direct or indirect permission to be on the property, and the victim’s presence benefited the owner in a tangible or intangible way.

Usually, owners have a duty of reasonable care in these situations. They must take affirmative steps to ensure that the store, house, or other structure is free from fall hazards and otherwise reasonably safe.

Second, victims must prove that the owner knew, or should have known, about the hazard which caused injury.

Comparative fault basically shifts blame for the fall from the owner to the victim. Basically, the owner says “if you were watching where you were going, you wouldn’t have fallen.” That’s not always true, as outlined below.

Anyway, Kentucky is a pure comparative fault state. So, jurors must weigh the evidence and divide responsibility on a percentage basis. The judge then reduces the amount of compensation based on the percentage of fault. So, if the jury divides fault 50-50, the victim is entitled to half of the requested damages.

This defense assumes that the victim could have avoided a fall if s/he was more careful. That’s not always the case. For example, many older people struggle with Age-related Macular Degeneration. This condition blurs straight-ahead vision. Therefore, people with AMD often cannot see hazards on the floor until it’s too late.

Assumption of the Risk

Warning signs, like “Caution Wet Floor,”usually set up the assumption of the risk defense. This doctrine is like comparative fault on steroids. Owners aren’t responsible for any damages if the victim:

  • Voluntarily assumes
  • A known risk.

Therefore, a sign is not a get-out-of-jail-free card. The insurance company must still prove that the victim saw the sign, read the sign, and understood what the sign meant.

All these elements are difficult to prove in many cases. As mentioned, some older victims cannot see such signs. Additionally, younger victims or those with limited English skills might not be able to read and/or comprehend such signs.

Lack of Evidence

Since the burden of proof is so low, this defense doesn’t come up very often in most civil claims. Falls are an exception. Frequently, there are no witnesses, not even a camera. So, the insurance company could argue that the victim accidentally fell and the hazard had nothing to do with the injury.

Kentucky’s res ipsa loquitur rule often comes into play in these claims. This Latin phrase means “the thing speaks for itself.” Basically, if the owner had exclusive control over the place where the fall happened and negligence is usually involved, jurors may presume that the hazard caused the fall.

The burden of proof in a civil claim is a preponderance of the evidence, or more likely than not. That’s one of the lowest burdens of proof in Kentucky law.

Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We do not charge upfront legal fees in these matters. #goodelawyers