Why Slip and Fall Cases Are Difficult to Win

Pam: Barry, do you handle a lot of slip and fall accident cases?

Barry: I actually do. I kind of enjoy them. They're surprisingly complex. There are a lot of meaty legal issues to kind of dive into. There are a lot of other lawyers who will pass on getting involved in them because they really are surprisingly difficult cases to take on.

Pam: I'm surprised to hear that these are hard cases to the point where it might even be difficult to get a lawyer.

A lot of people happen to believe that, simply because you happen to fall on somebody's property, they're going to be responsible or liable for whatever injuries you may have suffered. The fact of the matter is that's not true at all. A lot of times, these cases are actually going to have to be put into suit because there's so many issues that can be contested by the insurance company.

Pam: What makes these cases so difficult to win?

Barry: At a very high level, there are actually six things that you need to prove to win a slip and fall or a premises liability case, versus three things, which is what you'd ordinarily have to prove in most negligence cases like a car accident case. Just at a very high level, there's more that you have to prove to win your case.

Getting past that, there's a defense called contributory negligence. Basically, what contributory negligence is is putting the blame on you for the accident. When you try a case, there's literally a line on the verdict form that says, "percentage of fault of the plaintiff or the person who was injured." What happens is the jury is asked to put a number in on that line. If that number is something under 50%, your verdict gets reduced by that amount. Just to keep numbers simple and easy, if you had a $10,000 verdict and the jury found you 20% contributory negligence, your $10,000 verdict would get reduced to $8,000. That's true all the way up to the 50/50 point. Once you're over 50%, you get a not guilty verdict.

Contributory negligence has two real impacts on the case. First is it has the potential to reduce your verdict and expose you to a not guilty verdict. The other way that contributory negligence impacts the case in in the insurance company's assessment of what a fair settlement value might be. If they think that there's a chance of getting a huge amount of contributory negligence or a not guilty verdict, they're going to offer you less money in the way of a settlement.

The defense of contributory negligence is one that's especially potent light of a psychological phenomenon known as defensive attribution bias. Basically what this is there are some things that happen to people that are so horrible that, to kind of shield yourself from them in the psychological kind of way, you think, "This couldn't possibly happen to me because I'm too careful, I'm too smart. This bad thing that happened to this person wouldn't happen to me."

In slip and fall cases, it's a real common phenomenon that comes into play. People say, "Well, I wouldn't possibly have slipped in that water, tripped on that crack in the sidewalk, whatever it is, because I look at my feet while I'm walking." Now, if you think about where you look when you're walking, you're walking straight ahead. Nobody looks at their feet while they're walking, but it's one of these things that you hear real commonly from focus group participants and from jurors who hear actual slip and fall cases as a rationale for giving the plaintiff a significant amount of contributory negligence or justifying a not guilty verdict.

That's one level at which these cases are surprisingly complex.

Pam: Are there other reasons why slip and fall cases can be hard to win?

Barry: One of the six things that you need to prove in any type of a slip and fall case is what's called actual or constructive notice of the hazard or defect. You're looking for some feature or some object that's on the property that created or caused the fall to happen. Actual notice means that the defendant actually knew that this hazard was there that was present. Constructive notice means that they should have known. When you're talking about they should have known, you're talking about it was there for a long period of time or it was just so big and so obvious that they should have known that it was there.

When you're operating on the basis of constructive notice, that this hazard was big enough or obvious enough that they should have been aware that this was a hazardous condition, it's a double-edged sword. It's a double-edged sword in that, if the defendant should have known about it, the property owner should have known about it. Then, the injured person also should have known about it. That feeds into the whole issue of contributory negligence. That becomes a big, big problem part for somebody who has been hurt as the result of a slip and fall accident.

Besides the issues involving contributory negligence, there may be also other issues regarding making sure that you have the proper defendants identified. Sometimes identifying who the actual owner of the property where somebody fell may be difficult. There may be other persons who are involved in maintaining the property, there may be tenants or subtenants. There's a whole host of issues that involve who is actually responsible for this piece of property, which can be really surprisingly complex and require a lot of fairly in-depth investigation to make sure that you have the right people in the case. If you don't have the right people in the case, it can be a huge, huge issue.

Pam: Okay. Are there mistakes that people make before they get a lawyer?

Barry: Well, there's a whole host of mistakes that people could make. The biggest one is when a person who has been injured in a fall gives a recorded statement to an insurance adjuster. Insurance adjusters who handle slip and fall cases are really well-trained in what the legal issues are that involve these kind of cases. A lot of times, they're really very, very good at getting the person who has slipped and fallen to say things that can really bury their case.

I was representing a lady years ago who was on her way into a restaurant and slipped and fell on water, and fell and broke her hip. Before she hired a lawyer, she gave a recorded statement to the insurance adjuster where she indicated that she really wasn't sure what made her fall. That's one of the things that you absolutely have to be able to talk about in this kind of cases, "This is what made me fall." Now, when she gave her recorded statement, she told the adjuster she wasn't sure what made her fall. That became a real sticking point in the case.

Now, we were able to actually try that case to a verdict and we won that, in large part on the strength of testimony from other witnesses and things that were in her medical records where she was telling people, the paramedics and the people in the emergency room, that she slipped in water in the restaurant, but, when she gave that recorded statement to the insurance adjuster, she said otherwise and it became a real problem point and was one of the things that ultimately forced that case to be tried.

The adjusters who handle these kinds of cases are people who are going to be really well-trained in what they want to get out of a recorded statement, which is going to be beneficial to the insurance company and harmful to the person who has been hurt.

Most often, I tell clients that the success or failure of their case doesn't rise and fall on what they have to say. Now, with slip and fall cases, they ... At many times, it is true, especially when the fall is one that isn't witnessed, if you give a bad statement to an insurance adjuster before you get good legal advice, you can sink your case before it ever gets going.

Pam: Thanks, Barry.

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