October 29, 2016

By: Jonathan J. Russell, Esq.

If you or a family member was injured in a fall on someone else’s property, are you entitled to receive compensation for your injuries from the property owner? The answer depends on the five factors discussed below.

First, did the property owner owe you a duty of care? That depends on why you were on the owner’s property. Were you an invitee, a licensee or a trespasser? If you were an invitee, you were owed the highest duty of care. This is true whether you were a business invitee(i.e., shopping at a store), a public invitee (such as walking on a public sidewalk) or a social invitee (visiting a friend’s home, for example). If you were a licensee, you were owed a moderate duty of care. Licensees are permitted to enter the property of another for a limited purpose such as to perform a service. If you were a trespasser, you were owed the least duty of care. However, even trespassers have a potential claim if they are injured due to a serious defect in the property.

Second, did the property owner or manager breach his or her duty of care to you? That depends on whether the owner/manager acted reasonably under the circumstances. It also depends on whether the owner caused or knew about (or should have known of) the dangerous condition that made you fall.

For example, suppose you slipped and fell on a banana peel lying on a supermarket floor. Store management denies they knew the banana was on the floor. Whether you have a valid claim may depend on the color of the banana peel! If it was green, the court will surmise that it hadn’t been there long (since bananas are often green when sold), and thus the supermarket would not have a duty to know about and remove it. However, if the banana was brown, the court will infer that the banana had been there long enough to be noticed and removed (since supermarkets don’t sell brown bananas). This is called constructive knowledge.

Third, was there a defect or dangerous condition in or on the property that caused you to fall? Surprisingly, many people do not know what caused their fall. (After all, if they had seen the danger before they fell, they would have avoided it.) But to have a case, you (or a witness) need to inspect the surface you were walking on, and try to ascertain what made you fall — whether water, ice, a raised sidewalk, a broken step, a banana peel or some other defect. The details of what happened, and what you or the witness saw or noticed, are critical to your case.

For example, suppose you slipped and fell in a supermarket, and then noticed that your clothes were wet and that you could see your footprints through a puddle on the floor. Those facts would support an inference that you slipped on a wet floor.

Fourth, how badly were you injured as a result of your fall? Most attorneys will not take a slip-and-fall case unless the victim suffered a fracture or an injury requiring surgery. This is because the total award must cover litigation expenses and the plaintiff’s medical bills and still compensate the victim for pain and suffering. Most slip-and-fall cases require expensive investigation and expert testimony. Unless the injuries are serious, the amount of the anticipated award may not warrant the costs of litigation.

Fifth, does the property owner have defenses or immunities to your claim? If you fell on ice or snow, the property owner may raise the so-called “hills and ridges” defense. If the fall occurred on developed or improved land, the statute of repose defense may apply. If you fell on government-owned property, the government may be immune from liability. Finally, a court may conclude that your fall was entirely your fault, not the property owner’s. (Being partially at fault would reduce, but not eliminate, your recovery.)

At Drake, Hileman & Davis, we have been winning slip and fall, and all kinds of personal injury cases, for your neighbors for over 30 years. If you have been injured in a slip- or trip-and-fall accident, and need legal counsel to address the unique issues involved in such claims, contact us for your free case analysis and evaluation.