Contrary to popular belief, not all slip and fall accidents on a wet floor will result in a large payout. In reality, these claims tend to have more nuances. Among the variables at play is something called “comparative negligence” – the plaintiff’s responsibility to recognize and avoid a hazard.
Due to this factor, a property owner may argue you should have seen and appropriately responded to a hazard on their premises. While it’s the defendant’s responsibility to establish comparative negligence and prove they reacted to the incident in a timely manner, anyone filing a slip and fall claim should be prepared for this scenario.
The Basics of Slip and Fall Cases
Property and land owners owe a duty of care to anyone on their premises. That responsibility varies, depending on the type of property and who was on the grounds.
In the latter case, a business owner owes a greater duty of care to customers than a homeowner who finds a trespasser injured on their lawn.
A slip, trip or fall does not always occur because of negligence, even if the building or grounds were in disarray or contained hazards.
Instead, the individual filing a claim needs to show that the property owner was aware of these dangerous conditions and failed to fix or respond to them in a reasonable amount of time.
To mitigate these risks, property owners should have a plan in place to identify, call attention to and repair such hazards. To prove a claim, the plaintiff will need to show:
- The hazard existed long enough that the property owner or manager should have noticed and responded accordingly.
- The property owner did not have a system in place or failed to monitor the grounds for hazards.
- The hazard did not have a purpose and neglecting or leaving it out in the open directly contributed to your injury.
- The owner failed to implement protective, preventative measures, such as barriers and signage to clearly identify the hazard.
- Conditions surrounding the hazard decreased visibility, making the issue difficult to identify.
The Role Comparative Negligence Plays
To put it simply, comparative negligence references the victim’s own negligence or reckless behavior. In turn, because the victim bears a degree of responsibility for their injuries, any settlement will be reduced by how much their behavior played in the injury.
Comparative negligence becomes critical when the defendant calls attention to the plaintiff’s behavior. As a property owner is not automatically responsible for a victim’s injuries, the defendant may attempt to show the plaintiff was not acting with care while walking through their premises or intentionally engaged in risky behavior, purposely ignoring safety precautions.
For the plaintiff, you need to prove:
- The property owner had a duty to ensure their premises were in a reasonably safe condition and failed to do so.
- The owner failing to address or ignoring the hazard directly resulted in your injuries.
- The injury was severe enough to result in financial loss or reduced quality of life.
To establish the victim’s responsibility, the defendant may try to prove their premises were safe or the hazard was visible and you were simply acting irresponsibly. The defendant may claim the victim:
- Was not paying attention to the grounds, including near the hazard. For instance, the victim was texting and failed to see a wet floor clearly marked with a barrier.
- Was a trespasser and should not have been on the property in the first place.
- Did not see or deliberately ignored a clearly marked hazard.
- Was not appropriately dressed; their footwear and attire played a role.
- Was participating in negligent or irresponsible behavior, such as running or jumping through an area with marked hazards, or knowingly walked into a hazard despite posted warnings.
- Deliberately did not take precautions – for instance, quickly walking over icy pavement or not holding onto a handrail.
Yet the defendant’s word is not always taken as absolute. They may also need to show that:
- Their signs and barriers were used in such a way that a reasonable, attentive person would have noticed them.
- The plaintiff did not have clear and lawful access to the area where the injury occurred.
- They implemented appropriate safety measures to indicate a hazard.
If the defendant is found not to be negligent, the claim won’t go forward. However, if the defendant’s negligence is established, the plaintiff’s role and responsibility will further be examined to determine comparative negligence.
Types of Comparative Negligence
Comparative negligence is not uniform across all states. Instead, laws may use:
- Pure Comparative Negligence: The plaintiff’s award is reduced directly in proportion to his or her responsibility.
- Modified Comparative Negligence: The plaintiff cannot receive an award if their fault is proportionally greater than the defendant’s fault. If the plaintiff is found to be at least 51 percent responsible, he or she won’t receive any compensation. Connecticut uses modified comparative negligence for slip and fall cases.
A handful of states have contributory negligence laws, which are significantly stricter. In these states, a plaintiff who is found partially responsible for their injuries, no matter how small the percentage, will not receive compensation.
Did you slip and fall on a commercial premises, due to a poorly labeled or unmarked hazard? Businesses have a duty to provide their customers a safe environment and those who do not should be held accountable. If you have a claim, contact Trantolo & Trantolo’s slip and fall lawyers today.