Obstacles to Compensation in Fall Injury Claims

by | Jan 24, 2022 | Injuries

The economic costs of fall injuries for people over 65 total $50 billion a year. These injuries also involve noneconomic losses which are almost incalculable. How does one put a price tag on something like emotional distress or pain and suffering? Such losses are especially cute among older Americans. In fact, most of these fall victims are so afraid of a repeat fall they can never live independently again.

Since so much is at stake, insurance company lawyers do whatever it takes to reduce or deny compensation. Usually, the “whatever it takes” involves one of the defenses listed below. So, if you sustained a serious fall away from home, you need a dedicated Lexington personal injury attorney on your side. A level playing field is the only way to obtain maximum compensation for your economic and noneconomic losses.

Lack of Evidence

When a car hits another car on a busy street, there are usually plenty of eyewitnesses. Moreover, at least one surveillance camera covers pretty much every stretch of roadway in Lexington. 

But that’s usually not the case in fall injury claims. Frequently, the victim is the only witness. Everyone knows that memory is selective in these situations. Furthermore, if the victim was catastrophically injured or killed, the victim’s testimony is not available at all.

Normally, a lack of evidence derails an injury claim. The victim/plaintiff has the burden of proof. But res ipsa loquitur, an obscure legal doctrine, usually applies in these cases. RIL is Latin for “the thing speaks for itself.” Jurors may presume that negligence caused an injury if the owner had exclusive control over the premises and the injury is usually associated with negligence.

So, if no one sees Bill fall down the stairs, jurors may normally presume that negligence, like a loose handrail or a wet spot on a step, caused the fall.

Comparative Fault

Contributory negligence is perhaps the most common defense in injury claims. For example, in the aforementioned car wreck, insurance company lawyers might admit that the tortfeasor (negligent driver) was speeding and blame the crash on the victim’s sudden lane change.

In fall cases, comparative fault is usually a failure to take reasonable care for one’s safety. To be on the safe side, most people wiggle handrails before they put their weight on them. They also actively look for wet spots on the floor.

However, older people may not be able to take these precautions. Sensory issues are a good example. Many older adults cannot spot hard-to-see hazards, like clear liquid on a step. That’s especially true if the room was dark or conditions were otherwise less than ideal.

Furthermore, even if the defense applies, it normally only reduces the amount of compensation. Kentucky is a pure comparative fault state. Even if a victim was 99 percent responsible for a fall or other injury, an owner or other defendant must still pay a proportionate share of damages.

Most owners have a duty of reasonable care in most cases. That’s one of the highest legal responsibilities in Kentucky. So, when owners breach this duty, jurors typically award maximum compensation.

Pre-Existing Condition

Gotcha! Schoolyard bullies cannot pick on kids who are weak or different. Likewise, insurance companies cannot use a weakness or difference, like an old injury or age-related physical deterioration, to reduce or deny compensation.

Assumption of the Risk

Rather than make their property reasonably safe, owners often post signs, like “Caution Wet Floor.” These signs do not automatically let owners off the hook. Instead, they simply make the assumption of the risk defense easier to prove. This defense excuses negligence if the victim:

  • Voluntarily assumed
  • A known risk.

Most people voluntarily walk on sidewalks or climb stairs. The second element of this defense is usually much harder to prove. As mentioned, many older adults have sensory problems. So, they cannot see warning signs, or at least they cannot see them clearly. Other victims have limited English skills. They do not associate a phrase like “Caution Wet Floor” with an increased fall risk.

Open and Obvious Hazard

This final defense is basically a combination of comparative fault and assumption of the risk. Owners are not responsible for damages if an open and obvious hazard, like a grocery store aisle display, causes a fall injury. The same principles discussed above, especially sensory loss, apply to the open and obvious defense.

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