Premises Liability (Slip and falls) – When Is One Liable?
Every year when winter comes calling, slippery parking lots and spills on frozen sidewalks begin dozens of tough legal battles countrywide. That should not come as a surprise because as any attorney will tell you, slip and fall cases that are weather related are extremely common. The same can be said of slip and fall cases that have nothing to do with the weather. What matters is how one goes about the case.
State by state
Slip and fall cases vary by the damages one suffered. Severe cases often lead to life threatening head injuries, fractures and sometimes death. That explains why not all slip and fall cases are the same. It is also important to note that legal provisions for slip and fall cases vary state to state. Your best bet here is to know when you can be liable if a stranger or someone you know falls on your property and gets injured. It is also important to know your options and legal reprieve if you are the victim.
A few years ago, nearly all states had a rule that one would be able to receive damages from slip and fall injuries that were caused by a term, unnatural accumulation. The rule applied for slip and fall cases that happened at the workplace and outside the workplace. Back then, unnatural accumulation of ice or snow included instances in which ice and snow were carefully crafted into hazardous situation from with the exception of natural phenomena. For instance, one had an arguable case where the defendant dripped icicles that made sidewalks icy. The same could be said of a defendant who plowed an area and left it dangerous. Snow falling from a heavy snow storm was an exception.
Changes in the law
The law has not changed much. The few changes made were in a bid to clear confusion as to what was natural and what was not. Massachusetts became one of the first states in 2010 to use the standard test of reasonableness to determine what as natural and what was unnatural. The state defined reasonableness as ‘something that everyone can understand’. In determining cases, judges would simply consider what the average man in a given situation would do. If one’s actions failed outside what the reasonable person would do, then the courts would consider such an action as unreasonable.
Proving a case
Forget about the weather related incidents explained above for a while and lets focus on the usual day to day slip and fall cases that occur in malls, barber shops, schools or just about any other area you can imagine. The technical nature of such a case makes it hard to argue. That is one of the main reasons why plaintiffs and defendants in slip and fall cases usually opt for out of court settlements. However, things sometimes do not end as the parties hope. The case then ends up in court. That is when the plaintiff needs to prove the following things.
- That the slip and fall incident occurred within the confines of someone else’s property
- That the owner of the property was at fault
- That the slip and fall incident resulted into mental or physical injury, death or monetary loss.
Tort of negligence
All the aforementioned grounds qualify slip and fall cases a tort. The main element is as you may have already figured out, the tort of negligence. That is to say that the defendant owed the plaintiff a duty of care. The defendant then breached that duty and as a result of that breach, the defendant suffered damages.
This is where the legal challenge usually begins. Your attorney, if you are the plaintiff, must gather solid evidence to prove that the slip and fall incident was not because of your negligence. He must prove that whichever harm you suffered was solely as a result of the defendant’s carelessness. Date and time of the incident, the weather conditions, your footwear and whether or not you were carrying anything when you slipped, are some of the factors your attorney will take into account while arguing your case.
A good attorney will take you through what to expect from the defendant’s attorney. That way, you can tell the probability of the court awarding you damages or dismissing the case. The attorney is likely to use ‘Act of God’ as a defense if it was drizzling when you tripped and fell. He may also use ‘contributory negligence’ as yet another defense. That is, he may claim that you wore slippery or worn out shoes at the time or that you simply ignored the ‘slippery floor’ sign and walked recklessly on the said slippery floor.
With all the possibilities at hand, the best thing you can do is to find the most competent attorney in town. Make sure that the attorney has argued several slip and fall cases before and won. Then if and when possible, be open to out of court settlements whether you are the defendant or the plaintiff.