If you have ever been unfortunate enough to have injured yourself because you slipped/tripped and fell, you may be curious as to whether or not you have a meritorious claim against someone or some entity for your damages. The laws relating to these types of cases come under the umbrella of “Premises Liability” law.
Many people erroneously believe that if they injure themselves on someone else’s property, then that person’s insurance company is automatically responsible to pay for their medical bills, lost earnings and pain and suffering. The truth is that the property owner and his insurance company will only be obligated to pay damages to a slip and fall plaintiff under very strict guidelines. The following is a simple formula for determining whether or not you have a viable claim:
Dangerous Condition + Notice + Injuries + Causation = Verdict (Minus Comparative Negligence)
1) Dangerous Condition
Unless your slip and fall was caused by a dangerous condition then you don’t have a case. A dangerous condition can be many things, such as a wet floor, broken tile or floor board, a broken hand rail on stairs, inadequate lighting etc… If you can establish that you slipped or tripped due to a “dangerous condition” then you get to address the next hurdle, the one which is usually the most difficult to prove, “Notice”.
2) Notice
In order to prevail in a slip and fall case you must prove that you slipped/tripped due to a dangerous condition on the defendant’s premises AND that the defendant either “knew or should have known” about the dangerous condition. Notice is broken down into two (2) types of notice. They are:
a) Actual Notice:
This is the type of notice which proves that the defendant either created the dangerous condition or that evidence exists establishing that the defendant actually knew that the dangerous condition existed for a sufficient period of time to have taken steps to fix the dangerous condition.
b) Constructive Notice:
This is the type of notice that is established by evidence which shows that the defendant should have known about the dangerous condition if he had been doing his job properly. An example of “constructive notice” is a spill of soda on a super market floor that was not cleaned up for more than an hour because the market failed to have a standard operating procedure in effect to have the aisles inspected and cleaned in a reasonable manner.
3) Injuries
This element of the slip and fall case is obvious. There is no case unless there are injuries to discuss. Because of the difficulty in pursuing slip and fall cases, most attorneys won’t handle a slip and fall case on a contingency fee basis unless the injury is relatively significant, like a broken bone or torn tendon. Mere soft tissue injuries rarely result in a monetary recovery sufficient enough to make the case cost effective for a seasoned attorney to pursue it effectively. If you believe that your injury is significant you should immediately call an experienced personal injury attorney to discuss your case.
The reasons for calling an attorney immediately are many. First, there is a need to inspect and photograph the dangerous condition by a qualified expert. Often the land owner will repair the dangerous condition shortly after the accident and then you have no proof that it even existed. Many otherwise meritorious cases are either ruined or seriously undermined because the dangerous condition was not adequately recorded and inspected in a timely fashion. Second, your attorney needs to obtain witness statements and conduct the necessary investigation to build the foundation of your case. Every case is only as good as its foundation. If the foundation is weak, so will be the jury’s verdict.
When you hire an attorney to represent your interests in any personal injury lawsuit, especially in a premises liability case, you need assurances from him/her that the necessary experts will be hired immediately and the required investigation undertaken forthwith.
4) Causation
Causation is the legal term used to describe the causal relationship between the accident and the injury being claimed. Defense attorneys routinely contend that the injury claimed by the plaintiff was not caused by the accident he/she is defending, but was “pre-existing”. Defense attorneys will subpoena every single medical record generated about you for decades before the accident to see if you had any prior complaints of a similar nature thereby allowing them some freedom to argue that your injury was not caused by the dangerous condition their client either knew about or should have known about.
If you have any pre-existing conditions or complaints to the same part of your body injured in the accident it is imperative that you advise your attorney of these facts. Don’t ever think that the defense attorney won’t get this information. Never hide it from your attorney. Be up front and honest about any and all previous injuries and law suits because if you aren’t, the defense will find out about it, and paint you out to be a liar.
5) Verdict
If you establish all four (4) of the above-referenced elements of your claim then a jury will be compelled to award you damages for your medical bills, lost earnings as well as pain and suffering…
6) Comparative Negligence
You should also be prepared for the defense to claim that even though they may have been negligent, that you were “comparatively negligent.” This is a common defense that is used 100% of the time in the defense of Premises Liability cases. While on the one hand you may argue that the hole that you fell in was “huge”, the defense argument will be “OK, we agree, then why didn’t you see it yourself!” Juries are very much inclined to buy comparative negligence arguments and you and your Lawyer must be prepared from the outset to deal with it. The “Why didn’t you see the dangerous condition” question is something every capable personal injury lawyer should ask their prospective client at their very first meeting.
In California we follow the law of Comparative Negligence. This means that if the Jury finds the Plaintiff to be 50% at fault, then the total Verdict is reduced by 50%.
Conclusion
If you believe that your premises liability injury was caused at least in part due to the negligence of some other person or entity then you should immediately contact an experienced personal injury attorney well versed in the nuances of this area of the law. You need to hire an attorney who also has the resources necessary to hire the appropriate experts and to conduct the necessary investigation before the dangerous condition is repaired and/or modified in any way.
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