If I Prove Negligence in a Fall Claim, Do I Automatically Win?

by | May 5, 2022 | Injuries

Establishing a prima facie negligence case in a slip-and-fall, dog bite, or other premises liability claim is normally not too hard. Most owners have a rather high duty of care in most situations, so it’s easy to prove a breach of duty. Additionally, Kentucky has a very broad res ipsa loquitur rule. In most cases, jurors may presume that negligence caused the victim’s injury.

Unfortunately, a prima facie case is only round one. During round two, the insurance company may present a number of defenses, some of which are outlined below. The medical bills alone in a slip-and-fall case normally exceed $50,000. So, there’s a lot of money at stake in these matters. As a result, insurance company lawyers typically pull out all the stops when they fight these claims.

Insurance companies usually fight personal injury claims to the bitter end. So, a victim needs an equally tenacious Lexington personal injury lawyer. Just like the insurance company pulls out all the stops to fight claims, an attorney fights hard to obtain maximum compensation. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Assumption of the Risk

The aforementioned duty of care requires landowners to immediately address wet spots on floors and other fall hazards. As one might expect, addressing such a hazard usually means cleaning up the wet spot. But some owners take a shortcut and use a “Caution Wet Floor” or other warning sign to avoid dealing with the hazard.

A sign, by itself, doesn’t cut it. The insurance company must still prove that the victim voluntarily assumed a known risk. These elements are often difficult to prove, even if the owner displayed a warning sign.

Some people have limited English skills. So, they cannot read these signs and/or they cannot understand what they mean. The same thing applies to very young victims with limited reading skills or very old victims with poor eyesight.

There are other issues as well, such as visibility, or the lack thereof. Wet floor warning signs are usually visible, but other warnings, like “No Lifeguard on Duty,” aren’t as easy to see. Frequently, owners bury such warnings on a long list of pool rules. 

On a related note, liability waivers, like school field trip permission slips, aren’t always get-out-of-jail-free cards. The defendant must still prove the victim voluntarily assumed a known risk. The “voluntary” prong is especially a problem. Most liability waivers are illegal contracts of adhesion. Unless victims sign them as is, they cannot participate in the activity.

Comparative Fault

If it applies, assumption of the risk excuses negligence. In most cases, comparative fault, a related defense, reduces the amount of compensation a victim receives.

Under ideal lighting and other conditions, most fall hazards are somewhat visible. Even a clear liquid usually reflects light, and a black ice patch is usually visible if the victim looks closely enough. That visibility is usually the crux of a premises liability comparative fault defense.

If a hazard was difficult, but not impossible, to see, the jury must divide fault between the parties on a percentage basis. The division usually depends on several factors, such as the length of time the hazard was on the floor, the owner’s efforts to make the area safer, like the aforementioned warning sign, and the victim’s ability to see the hazard.

After the jury divides fault 50-50, 70-30, or whatever, the judge reduces damages appropriately, since Kentucky is a pure comparative fault state. If the victim was 30 percent responsible for the fall, the judge must reduce the requested damages by 30 percent.

Open and Obvious Hazard

This defense has the same legal effect as assumption of the risk. If a hazard was open and obvious, victims are responsible for their own injuries. A colored wet spot could be an open and obvious hazard. Generally, however, something like a sinkhole or a grocery store aisle display is an open and obvious hazard.

Environmental conditions and the victim’s status often come into play in these situations. It’s rather difficult to see a sinkhole in the driving rain or an aisle display during a power failure. That’s especially true if the victim had poor eyesight. In other words, what’s open and obvious in one situation may not be open and obvious under different facts.

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. The sooner you partner with us, the sooner we start working for you.