In terms of preventable injuries in Kentucky, falls are, by far, the leading cause. Caught between and struck by injuries, which usually involve motor vehicle crashes, are a distant second. Getting these claims to court is a battle. Kentucky’s statute of limitations is short in these cases. Additionally, many properties, like shopping malls, have multiple owners. So, identifying the responsible party is challenging.
Building a winning case is even more challenging, because as outlined below, these claims have lots of moving parts.
Therefore, only the most experienced Lexington personal injury lawyers should handle fall claims. Only an experienced lawyer can take on a bog insurance company and obtain maximum compensation for your serious injuries. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages might be available as well, in some extreme cases.
Duty of Care
Legal responsibility in a negligence case is loosely based on the Golden Rule (do unto others as you would have them do unto you) which children once learned in school. The duty of care usually varies according to the tortfeasor’s (negligent actor’s) status. For example, most commercial drivers, like Uber drivers, have a higher duty of care than most noncommercial drivers.
Premises liability claims, including fall injury claims, are different. In these cases, the duty of care usually varies based on the owner-victim relationship, as follows:
- Invitee: Almost all fall injury victims have direct or indirect permission to be on the land. Additionally, almost all fall injury victims benefit the owner economically or non-economically, simply by walking through the door. Therefore, most fall injury victims are invitees. As such, most owners have a duty of reasonable care to not only ensure the property is safe, but also to conduct frequent safety inspections.
- Licensee: A few people, like guests of hotel guests or apartment tenants, are licensees. Usually, the owner doesn’t care one way or the other if such people are on property, mostly because there’s no economic or noneconomic benefit at stake. Since the relationship is more distant, the duty of care is lower. This duty is usually limited to a warning about latent (hidden) defects.
- Trespasser: Things get complicated if invitees or licensees become trespassers. Underscanning shoplifters who use self checkout lines are a good example. These individuals usually buy something at stores, but they don’t scan all the items they pick up. Arguably, therefore, they could be invitees or trespassers. Other than refraining from intentional harm, owners don’t owe any duty to trespassers.
Some states, not including Kentucky, have eliminated the invitee-licensee-trespasser classification system, since these categories overlap and are often hard to understand. You probably had no idea what a “licensee” was until you read this blog.
Knowledge of Hazard
Establishing theoretical responsibility is not nearly enough to obtain maximum compensation. An attorney must also prove the owner knew, or should have known, about the hazard which caused the fall. This evidence could be direct or circumstantial.
Usually, insurance company lawyers hide direct evidence of actual knowledge as long as they can. Lexington personal injury lawyers uncover this proof, which could be a safety survey or a restroom cleaning report, during discovery. So, if a fall claim settles too quickly, the best evidence, and therefore maximum compensation, might be unavailable.
If no direct evidence is available, circumstantial evidence will do. That’s especially true since Kentucky had a broad res ipsa loquitur rule. Jurors may presume that the property owner was negligent, even if comparatively little evidence is available.
Adding knowledge to duty isn’t enough to obtain compensation either. Victim/plaintiffs must often respond to various insurance company defenses, such as comparative fault. This legal doctrine shifts blame for a fall injury from the owner to the victim.
The open and obvious defense, a form of comparative fault, is usually available in direct evidence fall claims. Owners aren’t legally responsible for damages if the hazard was open and obvious.
O-and-O sounds straightforward, but the concept is complex. For example, during the day, most people can see many walkway hazards, like large cracks, and avoid them. Things are much different on a cloudy or moonless night.
Ordinary comparative fault is usually available in circumstantial evidence claims. Jurors must apportion responsibility between the two sides, if they thought the victim could have avoided the fall.
Kentucky is a pure comparative fault state. Even if the victim was 99 percent responsible for the fall, the owner is liable for a proportionate share of damages.
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 routinely handle matters in Fayette County and nearby jurisdictions.