A Delaware County Personal Injury Attorney Discusses Fall-Down Accidents (“Slip and Falls”)
Fall-down cases (also known as “slip and falls”) are the second most common type of lawsuit for personal injuries. Automobile accidents are the most common. The legal principles involved with slip and falls differ greatly from car accident cases. There are particular hurdles that must be overcome to receive fair compensation for injuries suffered as the result of a fall.
Generally, the most difficult problem involves the issue of notice. The plaintiff must prove that the defendant either (1) created the hazard that caused the injury or (2) knew or should have known of the potential hazard long enough before the accident to have removed or repaired the hazard. For example, if a pedestrian trips on a cracked sidewalk, the personal injury attorney hopes to find someone who lives in the area who knows that the crack existed for a long time. The appearance of the crack may also support this conclusion. If so, photos must be taken before the homeowner is advised of the claim, since once the sidewalk is repaired, photos are much less useful. Hopefully, the photos will show that the property owner should have known of the hazard and had it repaired.
A thorough and prompt investigation can make all the difference in fall-down cases. Witness statements must be obtained and photographs of the hazard must be taken. Even short delays can hurt the case, since memories rapidly fade and hazards get repaired quickly when injuries occur.
The city where the accident happened may also have liability for failure to enforce the municipal requirements regarding sidewalk repair. This is particularly important when the property owner does not have homeowner insurance. In this situation, the government may be the only defendant against whom a money judgment can be collected. The city becomes the deep pocket or target defendant.
The discussion that follows sets forth different classifications that some states use to describe fall-down accident plaintiffs. Although these exact classifications may not apply in your state, your state likely has something similar. Be sure to consult the law in your state.
Property owners and their tenants owe the highest duty of care to individuals invited onto their property. Customers of businesses have the status of business invitees. The owner of the business is under the duty to protect the business visitor, not only against dangers the owner knows about, but also against those that with reasonable care might be discovered. The business invitee enters the premises assuming that the business owner has taken steps for their protection and safety. The store customer is entitled to rely on the business owner’s performance of this duty to make the premises safe.
A lower standard of care is required with respect to licensees. A licensee may be defined as a person who may enter or remain on the property only by virtue of the consent of the possessor of that property. For example, social guests are licensees. Even though a social guest is normally invited, he or she is not on the property for business reasons. A person who walks on a sidewalk adjacent to a private home is also a licensee.
Under certain circumstances, a possessor of land is subject to liability to licensees for injuries caused by the possessor’s failure to exercise reasonable care for their safety The licensee must show that (1) the possessor should have expected that the licensee would not discover the danger and (2) the licensee did not know or have reason to know of the danger. As a result, hidden dangers subject the possessor to liability to licensees, but open dangers do not.
Again, a trespasser is someone who enters the land of another without any right or who goes beyond the rights or privileges granted by license or invitation. As a general rule, the owner’s duty is to refrain from willfully or wantonly injuring the trespasser. However, under certain circumstances, foreseeable trespassers may be entitled to greater protection. For example, an attractive nuisance, such as an unfenced swimming pool, may subject the owner to liability if a child from the neighborhood wanders in and drowns. It is foreseeable that this might happen. Therefore, the possessor must even protect trespassers from harm in this kind of case.
A common issue in these cases is the victim’s failure to be careful. This is called comparative negligence. See Chapter 11 of my book, Winning Personal Injury Cases for additional exploration of this topic. Defendants argue that the claimant should have seen the hazard and avoided it. Although this argument often reduces the total amount of compensation received, it usually does not defeat the claim outright. There may be valid reasons why the hazard was not seen. For example, when a customer slips on grapes in a grocery store, the customer’s attention may have been drawn by a catchy advertisement or display. This is a reasonable explanation that, if believed, should enable your client to receive compensation.
In premises liability cases, often there is coverage for medical bills. This is called med-pay. It operates under no-fault principles. For example, if a client slips on a sidewalk and is injured, the homeowner’s policy, if it contains a med-pay provision, will pay the medical bills even if the homeowner was not at fault. The med-pay limit is usually $5,000.00. It is important to ask about this coverage. The claims adjuster is unlikely to tell you about it unless you ask. Med-pay is especially important in cases where the client has no health insurance. Med-pay will make getting medical treatment and diagnostic testing much easier.
Sometimes the insurer will send the med-pay check directly to the doctors. Sometimes they send it to the lawyer. I prefer the latter as it allows me to distribute these funds in a way that is most advantageous to my client. I prefer to send it to a medical provider from whom the client will continue to seek treatment, rather than to one who the client will not see again (e.g. the emergency room hospital).
It is permissible to take a fee out of the med-pay money. You have created this pool of funds, and so you are entitled to be paid for your time. You will have to use your best judgment as to whether to take a fee if all of the med-pay money is needed to insure the availability of future treatment. Whenever a conflict of interest arises between you and your client, you must resolve it in the client’s favor. So if I think the client will not be able to get needed treatment unless I send the money to the doctor, I take no fee.