Slip and Fall Accidents: Proving Fault

Slip and fall accidents account for over a million emergency room visits in the U.S. each year, according to the National Floor Safety Institute. If you're thinking about making an injury claim after a slip and fall, here's what you need to know:

• A property owner, business owner or someone else might be legally responsible for your accident, but that's not the case with every slip and fall.
• Proving a slip and fall case usually means showing that someone (like a property owner or store owner) was somehow negligent.
• A negligent/not negligent finding often focuses on whether the defendant had notice of a dangerous condition, and whether their response to it was reasonable.

Should You File a Slip and Fall Claim?

First things first. Before you pursue a slip and fall claim, you need to decide whether it will be worth the time and hassle.

Making a claim with the property owner's insurance company can be challenging, especially if key issues are in dispute or difficult to establish, including:

• the property owner's fault for the slip and fall accident
• the nature and extent of your injuries
• the legitimacy of the medical treatment you received
• the non-economic impact of your injuries (including the fair value of your "pain and suffering" damages) and
• whether you might share some amount of fault for the slip and fall.

The Insurance Company Isn't On Your Side

Remember, the property or business owner's insurance company isn't in the business of making sure you end up with a fair resolution to your injury claim. Their entire business model practically requires insurance adjusters to push back on claimants' allegations, and to do everything possible to minimize what the company ends up paying out on the claim. Learn more about slip and fall claims and homeowner's insurance.

Know What You're (Potentially) Getting Into

If you are unable to resolve your claim with the property/business owner's insurance company, you will probably need to file a lawsuit. Litigation can be expensive, time consuming, and stressful. It's also likely that you will have to give a deposition, which can be a grueling process. (Learn more about depositions in slip and fall cases.)

Before making a slip and fall claim or filing a lawsuit, it's worth considering whether the injuries you suffered are really worth the hassle. For example:

• If you bruised your knee in a slip and fall, or came away with a slightly sprained ankle, it might not be worth going after the property owner, especially if your own health insurance covered your injury treatment.
• On the other hand, if you broke a bone, or injured your back, and missed time at work, it's probably worth it to hold the property owner (or anyone else) accountable.

A Slip and Fall Doesn't Always Equal a Slip and Fall Case

It's normal for things to fall or drip onto a floor or the ground, and for smooth surfaces to become uneven. And some things put in the ground—drainage grates, for example—serve a useful purpose.

So a property owner (or occupier) cannot always be expected to immediately remove every hazard or clean every slippery substance on a floor or on the ground. Nor is a property owner always responsible for someone slipping or tripping on something that an ordinary person should expect to encounter, notice, and avoid under the circumstances. We all have an obligation to watch where we're going.

How Much Might Your Slip and Fall Case Be Worth?

This is one of the most common questions on the mind of slip and fall claimants, but unfortunately a reliable answer can only come after careful analysis of an individual case. But there are factors that tend to carry the most weight when it comes to figuring out the potential value of a slip and fall claim, including:

• the clarity of the fault issue
• the seriousness of the claimant's injuries, and
• the availability of sufficient liability insurance to cover the claimant's losses.

Get the details on how to determine the value of a slip and fall case.

Keys to Slip and Fall Liability

Under a longstanding legal concept known as "premises liability," property owners have legal obligations to guests, customers, and other visitors who come on their property, with regards to the safety of that property.

While there is no precise way to determine when someone else is legally responsible for your slip and fall, most of these cases turn on:

• whether the property owner acted carefully so that your slipping or tripping was not likely to happen, and
• whether you were careless in not seeing or avoiding the hazard that made you fall.

In order to hold a defendant (like a property owner or business owner) legally responsible for injuries you suffered in a slip and fall, one or more of the following must usually be true:

• The defendant (or an employee) must have caused or created the hazard (the spill, the worn or torn spot, or item underfoot, for example).
• The defendant (or an employee) must have known of the hazard but failed to take reasonable steps to fix the problem or limit the danger.
• The defendant (or an employee) should have known of the danger because a "reasonable" person taking proper care of the property would have discovered and removed or repaired it.

The third situation is the most common, but it's also tougher to establish than the first two because of those pesky words "should have known." Liability in these cases is often decided by common sense. Judges and juries determine whether the defendant (or an employee) was careful by deciding if the steps they took to keep the property safe were reasonable.

Was There an Unsafe Condition on the Property?

In order for the property owner to be liable for a slip and fall, an unsafe condition must have caused the accident. It is not enough to simply slip, or stumble, while on someone else's property. Examples of unsafe conditions include:

• accumulation of snow and ice
• wet floors
• a badly damaged walkway or sidewalk
• potholes, and
• debris.

The landowner must have also caused the unsafe condition, or at least allowed it to persist. But it's important to note that property owners do not necessarily have to make their property perfectly safe. They are only required to make their property reasonably safe.

For example, after a snowstorm, a property owner is usually required to take measures to clear snow and ice from sidewalks that other people are likely to use. However, they are not required to make the sidewalks perfectly dry and clear. For this reason, a slip and fall immediately after a snow storm is not likely to give rise to a valid injury claim, especially in a part of the country where snow is a seasonal norm.

Did the Property Owner Have Notice of the Danger?

Property owners are entitled to a reasonable amount of time to discover dangerous conditions. For example, if a child in a grocery store drops some grapes on the floor, and a person immediately slips and falls on the grapes, the grocery store owner will probably not be liable for injuries resulting from the fall.

Notice is one of the most difficult things to prove in a slip and fall case. If a fall occurs in a store or business, the company will likely generate an incident report afterwards. Incident reports often identify the cause of an accident that occurred on commercial property, and may provide insight into how long a property owner was aware of a dangerous condition that caused a fall.

Surveillance video of the area where the fall took place might show how much time was allowed to lapse after the dangerous condition arose. Incident reports and surveillance video footage are often critical pieces of evidence when you're trying to prove that a property owner was (or should have been) on notice of a dangerous condition.

What Is "Reasonable"?

Premises liability in general, and fault in slip and fall cases in particular, usually depends on whether the property owner (or someone else in charge of the premises) was negligent. And any negligence claim often hinges on whether the defendant acted reasonably under the circumstances that led to the accident.

In determining a property owner's "reasonableness," the law focuses on regular and adequate efforts to keep the property safe and clean. Here are some initial questions to ask when considering whether a property or business owner might be liable for your slip and fall injuries:

• If you tripped over a torn, broken, or bulging area of carpet, floor, or ground, or slipped on a wet area, had the danger been there long enough that the owner or an employee should have known about it?
• Does the property/business owner have a regular procedure for examining and cleaning or repairing the premises? If so, what proof does the owner have of this routine, and whether it was followed in the hours before your accident?
• If you tripped over or slipped on an object, was there a legitimate reason for the object to be there? Could the object have been removed or covered or otherwise made safe, without much inconvenience or expense?
• Could a simple barrier have been created or a warning been given?
• Did poor or broken lighting contribute to the accident?

Was a Warning Posted?

If a property owner is aware of a dangerous condition, and they cannot remedy the problem immediately, they are usually required to warn people of the danger. For example, if a public sidewalk is under construction, the municipality where the sidewalk is located must warn people of any dangers the construction poses, through the use of signage, roped-off areas, etc. Or, a store owner must warn people of the slipperiness of recently mopped floors by setting out "Caution" cones.

Did Your Own Carelessness Play a Part In Your Slip and Fall?

In almost every slip or trip case, expect your own conduct—in the moments leading up to the accident—to come under scrutiny.

The rules of "comparative negligence" help measure your own reasonableness in going where you did, in the way you did, just before the accident happened. There are some questions you should ask yourself about your own conduct—after all, an insurance adjuster will almost certainly ask them after you file your claim:

• Did you have a legitimate reason—a reason the owner should have anticipated—for being where the dangerous condition was?
• Would a careful person have noticed the danger and avoided it, or walked carefully enough not to slip or trip?
• Were there any warnings posted about the hazard?
• Were you doing anything that distracted you from paying attention to where you were going (phones often come into play here), or were you running, jumping, or fooling around in a way that made falling more likely?

You don't have to "prove" that you were careful, but think about what you were doing and describe it clearly in discussions with an insurance adjuster, to counter any suggestion that you were careless.

Do You Need a Lawyer for a Slip and Fall Claim?

In some instances, you might be able to handle an injury claim on your own. That's especially true if your injuries are fairly minor, there is no dispute over fault, and you're comfortable fighting for a fair result. But if your potential slip and fall case isn't so straightforward, or you're just not comfortable going up against the insurance company, there's no substitute for discussing the details of your potential case with an experienced lawyer, and coming away with:

• an expert opinion of the strengths and weakness of your slip and fall case, and
• a careful, thorough explanation of your options.

Getting Help After a Slip and Fall

Any time you're injured on someone else's property, it's always a good idea to arm yourself with as much information as possible about the law and how it might apply to your situation. But if you decide to file an injury claim after a slip and fall, you might want to consider having a legal professional on your side to ensure that you end up with the best result.

Visit our Help From a Personal Injury Lawyer center to learn more about finding, hiring, and working with an attorney. You can also use the features on this page to connect with an injury lawyer in your area.

Parts of this article were excerpted from How to Win Your Personal Injury Claim, by Joseph Matthews (Nolo), a comprehensive guide to navigating each step of the injury claim process and getting a fair settlement.