Lever & Ecker, PLLC April 6, 2015 Slip Trip & Fall
If you have been involved in an accident and want to make a claim for your slip or fall as you believe someone else was to blame, the first thing to do is understand what type of accident is most likely to lead to a personal injury case.
Many people suffer injuries from slip and fall accidents each day. An accident like slipping on a wet or slippery floor is a very common occurrence and some of these incidents are just part of life.
We all have an obligation to take reasonable care to look where we are going and if for example you slip or trip over a drainage gate, the owner is not always going to be liable for a claim, especially if the drainage gate serves a purpose there and is correctly fitted.
If you have suffered an injury and feel that the accident could have been avoided if the property owner or other party had acted more responsibly, then this could lead to a successful claim where you can be compensated for their negligence.
The circumstances of some cases make it much easier to determine liability than others, but there are some guidelines that you can work with as a framework for assessing the viability of a slip and fall case.
The first point to remember is that there is no specific pre-determined way to explain when an owner or occupier of a property where the accident occurred is legally responsible for an item or scenario that causes you to suffer a slip or fall.
Each individual case will need to be assessed on its relative merits but the general tipping point for each case is whether the owner acted with due care and attention and took reasonable steps to prevent any accidents.
Keep in mind that any defense of such a claim would try to establish whether the claimant who fell acted carelessly or without reasonable attention, and could have been reasonably expected to avoid suffering a fall had they done so.
Being able to confirm or deny the basic steps on both sides of the claim will often be a matter of dispute that leads to litigation to resolve the argument. Yet, there are certain situations where the owner of a premises or the person deemed to be responsible, is more likely to be held legally responsible than others.
To establish liability and make a claim, the person to be sued must have caused the spillage or created the dangerous condition that led to your fall.
They can also be legally responsible if they knew that a slippery or dangerous object or material was present, but did not take sufficient action to reduce or eliminate the risk of an accident happening.
Being able to establish that the defendant must have known about the danger is going to make a claim more viable and likely to succeed.
A more common situation, however, is making a claim on the basis that the defendant should have known rather than stating that they must have known that an accident was likely or the situation was dangerous.
The disparity of the words ‘must’ and ‘should’ in this legal context can be quite large. Liability is often determined by the court based on which of the two is most likely to be relevant based on the evidence and facts supplied.
The law aims to determine whether the defendant exercised due care and attention and whether they took reasonable steps to keep their property safe based on this likely knowledge.
There are countless scenarios where a mishap can occur and where spillages can sometimes go unnoticed.
It can also be that a floor becomes worn or cracked over a period of time and the ground can become broken, loose or more slippery than usual. While it should be expected that a person makes a reasonable effort to check the walking safety of their property or business premises on a periodic basis, the law does not stipulate any need to make immediate repairs on a 24/7 basis as soon as something is dropped, spilled or broken.
When it comes to making a claim, the law pays particular attention to the reasonableness of the cleanup and repair efforts. This means that someone who maintains their premises on a regular basis is less likely to be found liable than someone who has allowed their property to fall into disrepair and who has consistently neglected to rectify any faults or potential problems.
Even when the owner is reasonably diligent with their property maintenance, you can almost always still argue that they were not careful enough on the occasion where you suffered a slip and fall.
There are some key questions that you will need to ask after you have suffered a slip or fall that will help to determine whether the property owner is likely to be found liable when making a claim for compensation.
Here are some regular scenarios, along with questions you should be asking, to determine if there is potential for establishing liability and making a claim:
If the answer to these questions surrounding liability are not satisfactorily answered or tend to suggest that there is some evidence of even unintentional negligence or carelessness, then you may well be in a position to proceed with a claim for compensation.
You should always expect and anticipate a defense. Most defendants, or lawyer’s acting for them, will expect you to provide a case and supporting evidence that adds strength to your claims.
Irrespective of whether you are pursuing an insurance settlement or a personal injury lawsuit, you will need to prove that someone else is actually liable for your injuries in order to successfully win your case.
There are two fundamental liability questions in slip and fall cases that will need to be addressed and dealt with comprehensively before you reach a satisfactory conclusion.
The first question involves identifying who the potentially liable parties are. Once you have established this information you will then need to determine if these parties were actually negligent and how. Were they negligent in causing an accident? Were they negligent by failing to prevent the accident from occurring?
You should remember that it is the task of your lawyer to show that the defendant in the case should have reasonably recognized a dangerous condition or situation and failed to rectify the situation within a reasonable period of time.
It may also be necessary to establish that the defendant actually caused the accident through their negligence and that it was reasonably foreseeable that someone would injure themselves because they failed to act when they should have done so or could have been expected to do so.
You can expect to witness a fair amount of negotiations between parties when there are attempts to reach a reasonable settlement that is acceptable and establishes negligence and liability.
In order for a defendant to be found liable for damages in a typical slip and fall lawsuit, it will have to be proven that the party or parties failed to act in the same way that a reasonably prudent person would have done, given the relevant circumstances.
It is this aspect of trying to assess and determine whether the defendant failed to act reasonably that will often determine the outcome of your claim and also the level of compensation and how reasonable the settlement offer is.
If you are considering asking your lawyer to file a claim, you will need to gather information to support the claim and assist in proving liability.
If you can prove that the hazardous condition or obstruction that caused the accident was left longer than could be considered reasonable without being eliminated or dealt with in normal circumstances, this would suggest potential negligence.
Any supporting documents, photographic evidence or witness statements that you know you can obtain, will help to support your claim if you believe that the defendant failed to carry out regular inspections or did not carry out a check just prior to the accident happening.
Any other evidence or details that you can provide regarding relevant conditions such as a lack of adequate lighting, will also greatly strengthen your case and improve your chances of a swift and favorable conclusion to the litigation.
You should also be prepared to prove that you were not at fault and did not cause the accident yourself through your own lack of responsibility or negligence on your part rather than the other party.
It is a possibility that the defense will seek to pursue a legal concept that is referred to as comparative fault. This is where the defendant will attempt to argue that that you, the plaintiff, should be held partially or wholly responsible for the accident that subsequently led to your injuries.
The rules in relation to comparative negligence do vary depending on which state you are in, and New York for example, is a pure comparative negligence state since 1987.
What this means is that if you are found to bear a percentage of the responsibility for the accident through your own actions at the time, your claim would be reduced by the agreed percentage determined in the settlement.
This means that if the defense is able to argue that you should be held 25% responsible for the accident, however the court awards a settlement of $20,000 in the case; you would then be entitled to receive the remaining 75% ($15,000) after the deduction of 25% ($5,000) had been made.
If, for example, you were talking on your phone or texting and failed to notice the hazard, it could be argued that it would be reasonable to suggest that you should have noticed the hazard if you had been paying sufficient attention.
If there were adequate warning signs and notices relating to the hazard that caused you to have an accident, that would also be a potential scenario where it could be argued that you ignored safety measures and therefore should take partial responsibility for the accident.
If the defense is able to display sufficient reasons to suggest that the accident was caused as a result of your own carelessness, this would seriously hinder your chances of being awarded compensation in your injury claim.
If you are considering making a claim, you should seek professional help as there is a lot to take in and it can often be difficult to prove liability. Consulting with a lawyer who has a complete understanding of the legal process and can talk you through the case and your options, should improve your chances of a more positive outcome and provide an opportunity to leverage liability.
Contact the experienced slip and fall attorneys of Lever & Ecker, PLLC today for a free consultation on your legal rights.
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