No one expects to be seriously injured while taking a walk in their neighborhood, visiting a friend’s home, or shopping in the local market, but the reality is that Slip and Falls happen. It could be from tripping over a disintegrating sidewalk that hasn’t been properly maintained by the city, a pathway to a home that wasn’t appropriately prepared for the season, or a spill that hadn’t been tended to causing a slick surface in the aisles of your favorite store.
Slip & Fall cases fall under premises liability in tort law. The legal theory supporting premises liability is based on the duty that owners of premises have in keeping their property safe for anyone who may use the area. When pursuing a lawsuit to claim damages from the negligent actions of a person or a company, there are four elements of a cause of action for a Slip and Fall that you must be able to prove in court.
Duty of Care
The owner of any premises owes a duty of care to anyone who visits their property. The duty of care is the responsibility an owner has to ensure that their property is free from hazardous conditions that could potentially cause injury (i.e., keep the floors safe).
In Court, you must be able to prove that the defending party did, in fact, have a duty of care to uphold. Since each state has its own governing laws regarding the level of care that is owned, consulting with an attorney will help you determine who in your situation is the liable party.
Breach of the Duty of Care
Once you’ve determined who the responsible party is (i.e. the person required to maintain the property), you must prove that they breached their duty of care. To prove a breach of duty, you must demonstrate that the responsible party failed to maintain or to prevent a hazardous situation in some way. For example, if you are shopping in a grocery store, they have a duty to keep the aisles clean and dry to protect shoppers. In the case of a broken jar in one of the aisles – if the store staff neglects to clean the spill, thereby leaving a slippery surface for a reasonable amount of time, it can be expected that someone will fall and hurt themselves. If you fall, you would be able to prove that they failed to uphold their duty of care – making them liable for your injury.
Now that you’ve proven duty of care and the breach of that duty, you must also be able to demonstrate that your injury directly resulted from the breach of duty. Use the “But For” test. But for the breach of duty, would you not have been injured? If you can answer this question in the affirmative, you are halfway there. You must also prove that it was reasonably foreseeable that if they did breach their duty, someone could be injured. This is where it begins to get messy.
There are several defenses that an owner may have including:
- Contributory Negligence: If you, the injured party, could be held partially or totally responsible for your fall resulting in your injuries – the property owner may not be found liable.
- Emergency Situations: If there was an active emergency surrounding your injuries, such as a fire or a police chase – the property owner may not be liable to you.
- Assumption of Risk: If you knew that there were risks involved, for example, seeing a hazardous situation on the aisle in the store and choosing to walk into it, you may have “assumed the risk” associated with your actions and the property owner could be found not liable for your accident.
- Defenses vary from State to State
Lastly, you must also be able to prove in court that you suffered actual damages from the slip and fall. These damages can be proven with medical testimony from a qualified doctor or medical expert. If you had medical expenses or missed days of work resulting in lost wages, be sure to keep a record of it. Your attorney should be calculating all of your economic and non-economic damages from day one including, but not limited to, lost wages, prescriptions, etc.
If you believe that your injuries from a slip and fall accident were the result of someone else’s negligence, I would encourage you to speak with an experienced personal injury attorney.