Common Defenses in Fall Injury Claims

by | Aug 19, 2022 | Injuries

According to a recent study, fall-related hospital bills are about twice as high as other stays. The direct injuries, like broken bones and head injuries, are usually severe in these cases. Additionally, these victims often suffer from secondary injuries, such as renal disease and diabetes-related organ damage. Due to these high costs, insurance companies do whatever it takes to reduce their liability. Usually, their legal strategies involve one or more of the legal defenses discussed below.

Therefore, a bare-bones negligence case often isn’t enough to obtain maximum compensation. A bare-bones claim is based on a duty of care and the owner’s knowledge of the fall-causing hazard. In addition to a basic case, a Lexington personal injury attorney must refute these defenses. This process usually means using additional evidence that addresses certain points and knowing the legal issues involved.

Lack of Evidence

Frequently, this common defense in criminal court isn’t effective in civil court. The burden of proof in criminal court (beyond any reasonable doubt) is a lot higher than the burden of proof in civil court (a preponderance of the evidence, or more likely than not).

Assume Oscar and Felix were both drunk when their car hit Murray’s car. In criminal court, it would be almost impossible to prove Oscar or Felix was driving the car. However, in civil court, Murray could pursue compensation against Oscar or Felix. In either case, it’s more likely than not that the defendant was driving the car at the time.

Additionally, most injury cases have independent witnesses, and a police officer conducts a thorough investigation. 

Falls are different, except for the burden of proof. Frequently, the victim is the only witness. Furthermore, even if a police investigation happens, the report will probably list the cause as “accidental.” That’s not the same thing as negligence, which was outlined above.

So, a Lexington personal injury attorney could be hard-pressed to meet the burden of proof. That’s especially true if the victim didn’t survive the fall and his/her testimony is unavailable.

To obtain additional evidence, attorneys often launch independent investigations to uncover circumstantial evidence at the scene. Discovery, a phase in a lawsuit, is important as well. Furthermore, an obscure legal doctrine called res ipsa loquitur often applies in these cases. Basically, if the owner had exclusive control over the premises, jurors may presume that negligence caused an injury, at least in most cases.

Assumption of the Risk

This defense, which also often applies in swimming pool drowning and other premises liability claims, usually revolves around a “Caution: Wet Floor” or other warning sign. Owners are not automatically off the hook if they display such a sign. A sign just makes it easier for an insurance company lawyer to prove the elements of this defense, which are:

  • Voluntary assumption of
  • A known risk.

Voluntary assumption is usually easy to prove. Most people voluntarily walk down staircases and in other places.

Known risk is often tricky. Basically, the insurance company must prove the victim saw the sign, could read the sign, and could understand what the sign meant. Many victims have limited English proficiency, so they cannot read such signs. These victims also often can’t understand what the sign is warning them about, unless the sign also has a picture of a person falling or a similar graphic.

Comparative Fault

This defense is quite common in all injury claims. In a fall claim, insurance company lawyers basically argue that the victim didn’t watch where s/he was going.

Some hazards, like huge sidewalk cracks or a layer of ice on a sidewalk, are relatively easy for most people to avoid. But that’s not true in all cases. For example, older people often suffer from Age-related Macular Degeneration. They cannot see such hazards, especially in the dark or semi-dark. On a related note, many older people have gait disorders. So, when they stumble, they usually fall.

If the judge allows the defense, once jurors consider all the evidence, they must divide responsibility on a percentage basis. Kentucky is a pure comparative fault state. So, even if the victim was 99 percent responsible for the fall, the negligent party is still responsible for a proportionate share of damages.

These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

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 do not charge upfront legal fees in these matters.