Obtaining Maximum Compensation in a Slip and Fall Claim

by | Dec 7, 2021 | Injuries

Every year, head injuries, broken bones, internal bleeding, and other fall-related injuries send more than eight million Americans to hospital emergency rooms. That figure makes slip-and-falls the leading cause of ER admissions in the United States. On a related note, these mishaps are also the leading cause of missed workdays in Kentucky.

The motion of a sudden fall and a hard landing causes the brain to violently slam against the inside of the skull. Doctors can treat head injury symptoms, but the injuries themselves are permanent. This same force causes internal organs, which have no protective skin layers, to smash against each other. The resulting friction causes profuse bleeding. Finally, the force of a fall usually shatters bones, as opposed to simply breaking them. It’s very difficult for anyone, especially older victims, to fully recover from such an injury.

Because of these serious injuries, the average injury-related hospital bill usually exceeds $50,000. As a result, these victims badly need the financial compensation a Lexington personal injury lawyer can obtain. Legally, the property owner is usually responsible for these injuries, as outlined below. Usually, lawyers are able to settle these cases out of court. So, victims obtain compensation and closure sooner than they would have otherwise.

Building Your Case

Settlement negotiations usually begin in earnest after a judge rules on procedural motions. Insurance company lawyers usually file these motions in an attempt to get the case thrown out of court. As long as a legal duty applies and there is any evidence of knowledge, these motions almost always fail.

Duty of Care

Duty, or a legal responsibility to avoid unintentionally injuring another person, is usually the cornerstone of a negligence claim.

Incidentally, negligence claims do not “blame” property owners or anyone else for an accident. Instead, these claims are simply about obtaining compensation. If you are injured and the injury wasn’t your fault, you should not have to pay medical bills out of your own pocket. Furthermore, according to Kentucky law, you are entitled to compensation for your noneconomic losses, such as pain and suffering.

To ascertain the specific level of legal responsibility in a fall injury claim, state law usually divides victims into three categories:

  • Invitee (permission to be on the property and a benefit to the owner),
  • Licensee (permission but no benefit), and
  • Trespasser (neither permission nor benefit).

Almost all fall injury victims are invitees in Kentucky. The permission could be specific, like a party invitation, or general, like an “Open” sign. The benefit could be economic or noneconomic, such as the benefit of social interaction at a party.

If the victim is an invitee, the owner has a duty of reasonable care. The owner is entirely responsible for the invitee’s safety. “We are not responsible for injury” signs, and other warning signs, are relevant, but they are not get-out-of-jail-free cards. More on that below.

Since the victim/owner relationship is more distant in licensee and trespasser claims, the duty of care is lower as well. 

Knowledge of Defect

Theoretical legal responsibility is not enough to obtain compensation, Victim/plaintiffs must also prove that the owner knew, or should have known, about the uneven floor, loose handrail, floor wet spot, or other hazard which caused the fall. This evidence can be:

  • Direct: Lawyers usually uncover restroom cleaning reports and other smoking guns during discovery. Since this phase comes relatively late in the process, it’s important not to settle fall claims too early. Direct evidence of actual knowledge significantly increases a claim’s settlement value.
  • Circumstantial: Indirect evidence of constructive knowledge (should have known) typically involves the time-notice rule. Think about a leaf of lettuce on a grocery store’s floor. If the lettuce leaf was wilted or dry, it had probably been on the floor for a rather long time. So, an employee should have seen it and should have picked it up.

In either case, victims must establish knowledge by a preponderance of the evidence (more likely than not).

Insurance Company Defenses

The victim’s duty/knowledge case is basically Round One. During Round Two, insurance company lawyers may present defenses. These defenses, if they apply, either reduce or deny compensation to the victim.

Comparative Fault

Basically, contributory negligence, or comparative fault, shifts blame for the fall from the owner to the victim. Insurance company lawyers often argue that the victim didn’t watch where s/he was going or was walking at an unsafe speed.

These arguments often don’t hold up in court, particularly if the victim was an older person. These individuals cannot see hazards as well as younger people, especially if the room was not well-lit. Additionally, many older people have gait disorders. When they stumble a bit, they cannot regain their balance, and they fall.

Assumption of the Risk

We mentioned warning signs and their effect above. Posting a sign is not enough. The insurance company must still prove that the victim:

  • Voluntarily assumed
  • A known risk.

This clip from Spongebob Squarepants illustrates these two prongs. Patrick voluntarily assumed the risk in a game of hide-and-seek which went horribly awry. However, he couldn’t read the sign, so he didn’t voluntarily assume a known risk. This same point comes up if the victim was a small child, older person with vision issues, or a person with limited English skills.

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. Virtual, home, and hospital visits are available. #goodelawyers