In a nutshell, serious falls usually put people in nursing homes, and serious falls usually keep them there much longer than they anticipated their stays would last. Falls cause about 40 percent of nursing home admissions, and 60 percent of all residents fall at least once. Most of these people cannot live independently ever again. The physical and emotional injuries are too much to overcome.
These physical injuries, mostly broken bones, severely limit mobility, even after the bones heal. Usually, doctors must use metal components to reconstruct bones after a serious fall. Psychologically, many older victims are so afraid of a subsequent fall that they become very inactive. This inactivity causes their muscles to atrophy, which increases the risk of a subsequent fall, and the downward spiral continues.
A Lexington personal injury attorney can obtain compensation for both these economic and noneconomic losses. Additionally, and perhaps more importantly, attorneys obtain justice for victims. Nursing homes who have been sued usually change their daily practices to better protect residents.
Nursing Home Fall Hazards
Cleanliness and construction are the two most common fall hazards in Kentucky nursing homes. The nursing home owner is legally responsible for resulting injuries, at least in most cases.
Slick spots on walkways are the leading cause of falls both inside and outside nursing homes. Most liquids are relatively clear and very difficult to see, especially on tile. Black ice is a serious hazard on sidewalks. This thin, translucent ice is much slicker, and much harder to see, than white ice. Furthermore, black ice usually accumulates in shaded areas which get little sunlight.
Mostly because of the exploding elderly population, most nursing homes are almost constantly under construction. Construction areas have a number of fall hazards, like uneven surfaces, which are difficult for older adults to see. Additionally, many of these individuals have gait disorders. When they stumble, they cannot catch their balance.
These same pre-existing conditions come into play in wet spot falls as well. As such, they also affect some common insurance company defenses. More on that below.
Owners are legally responsible for these falls, and their insurance companies are financially responsible for them, if a legal duty applied and the owner knew, or should have known, about the fall hazard.
Legally, nursing home residents are invitees. They have permission to be at the facility and their presence financially benefits the owner. As a result, nursing home owners have a duty of reasonable care. Initially, they must ensure that the property is safe. Then, they must conduct periodic safety inspections.
The other two legal categories, licensee (permission but no benefit) and trespasser (no permission and no benefit), don’t come up very often. That’s because lhe law broadly defines “permission” and “benefit.” The permission could be direct, like a party invitation, or indirect, like an “open” sign. Similarly, the benefit could be economic or noneconomic.
Victim/plaintiffs must also establish actual or constructive knowledge (should have known). Direct evidence of actual knowledge includes things like safety reports and prior falls. Circumstantial evidence of constructive knowledge usually involves the time-notice rule. If the hazard just appeared, there’s generally no notice.
Comparative fault, assumption of the risk, and the open and obvious doctrine are the most common insurance company defenses in nursing home fall claims.
Essentially, comparative fault shifts blame for the accident from the owner to the victim. Basically, lawyers argue that the victim would have seen the hazard and should have avoided it. The aforementioned pre-existing conditions affect a victim’s ability to do both these things.
After considering the evidence, jurors must divide fault on a percentage basis. Kentucky is a pure comparative fault state. The court reduces the victim’s recovery in proportion with the victim’s fault. So, if Brenda’s damages are $100,000 and a jury determines that she was 20 percent at fault, she’s entitled to $80,000.
Assumption of the risk often involves a “Caution: Wet Floor” or other warning sign. Such a sign doesn’t immunize owners. It simply makes the assumption of the risk elements easier to prove. These elements are:
- Voluntary assumption of
- A known risk.
So, insurance company lawyers must prove that the victim saw the sign, could read the sign, and could understand what it meant.
The open and obvious doctrine is an enhanced form of comparative fault. If the hazard was open and obvious, the owner is not liable for damages. But what is open and obvious to one person may be nearly invisible to someone else.
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. Attorneys can connect victims with doctors, even if they have no insurance or money. #goodelawyers