A slip and fall accident is an incident where a person falls and sustains an injury while on the property of another. Slip and fall accidents, which commonly include step-and-fall and trip-and-fall accidents, more commonly occur at businesses like retail stores and grocery stores. However, workplace and leased premises are also common locations where slip and fall accidents may occur.
What Is Premises Liability?
Premises liability is a legal concept that comes into play in slip and fall cases. Premises liability requires that a property owner (or non-owner resident) is responsible for maintaining a relatively safe environment, like a maintained balcony that will not collapse. As the laws of liability vary from state to state, it is important to be aware of the laws in your state regarding premises liability. Some states focus on the status of the visitor to the property and some states focus on the condition of the property.
How Do You Prove Liability?
Status as a Visitor: In states that focus only on the status of the visitor to the property, there are four labels that apply that aid in establishing the property owner’s liability for any resulting injuries on the premises.
- Invitee. An invitee is someone who is invited onto the property of another. An invitee typically applies to businesses such as retail stores. As the property owner invites the invitee onto the premises, the law provides that the property owner should take reasonable steps to assure the safety of the premises. A property owner also owes a duty to inspect for any dangerous condition to the premises.
- Licensee. A licensee is someone who enters the property for his own purpose. These persons are typically those invited for social gatherings and are present on the premises at the consent of the owner. The property owner has a duty to warn of any hidden dangerous conditions on the premises, as long as the owner knows of the condition.
- Trespasser. A trespasser is a person who enters the premises without any right of permission. Generally, property owners owe no duty to a trespasser.
- Anticipated Trespasser. An exception to the general rule of trespassers applies where the landowner knows that it is likely trespassers will enter the property. In this case the property owner may be required to give reasonable warning to prevent injury.
Condition of the Property: Where liability is dependent upon the condition of the property and the activities of the owner and visit, a general standard of care is applied to both invitees and licensees. The uniform standard requires that owners exercise "reasonable care" for the safety of the visitor. The trespasser is still owed no duty. Factors that the court considers are the following:
- The circumstances of how the visitor entered the property.
- The use to which the property is put.
- The foreseeability of the accident or injury that occurred.
- The reasonableness of the owner’s effort to repair a dangerous condition or whether a sufficient warning was provided to visitors.
Children on Property: A property owner has a duty to warn, as described in the situations above, however, there are new requirements of a property owner with respect to children. A property owner must give sufficient warning if the following factors are present:
- The owner knows or should know that children are likely to be on the premises.
- The owner knows that a dangerous condition exists on the premises.
- The owner knows that the dangerous condition is likely to cause bodily injury or death.
The theory behind a special form of liability for child trespassers is based on the "attractive nuisance" doctrine. An attractive nuisance is something interesting that would entice a child to enter another’s property. Examples of attractive nuisances include swimming pools, fountains, machinery like lawnmowers, tunnels, dangerous animals, and stairs and pathways.
There are three elements to the attractive nuisance doctrine which include:
- The law doesn’t expect children to fully comprehend the dangers they may face.
- If the property owners knows that children frequent their property the law places a special responsibility to prevent danger or injury to the children.
- If an owner fails to meet this special responsibility, they can be held liable for the child’s resulting injuries.
What Is Negligence?
Negligence is, in the simplest terms, the failure to take proper care in doing something. When someone is negligent someone usually gets hurt. There are four essential elements of a negligence charge including:
- Duty. It must be established that the defendant owed a legal duty to the plaintiff under the circumstances. The duty of care may be imposed by operation of law between individuals. Generally, a duty of care is owed to foreseeable plaintiffs. A foreseeable plaintiff is deemed as such if it can be determined that harm to the plaintiff from the defendant’s conduct was foreseeable.
- Breach. The defendant breached the legal duty of care by acting or failing to act in a certain way.
- Causation. Defendant’s actually and proximately caused the plaintiff’s injury. Actual causation is proven if the plaintiff’s injury is caused by defendant’s negligence. Proximate causation is proven where the defendant reasonable could have foreseen that his or her actions would cause injury. For example, if the defendant’s conduct cause the plaintiff’s injury but it was through some unexpected act of nature, the injury will likely be deemed unforeseeable and the defendant will not be liable.
- Damages. The plaintiff must have been harmed by the defendant’s actions. Compensatory damages are those that seek to make the plaintiff whole. These include monetary compensation for medical care, loss of work wages, property damage, and other expenses.
Reasonableness is an element of any negligence claim as related to the "duty of care" that a defendant must undertake to protect foreseeable plaintiffs from injury. Reasonableness can be hard to define and may vary with time and place and the relationship between people. However it is commonly defined as that conduct which a reasonably prudent person would act in a similar situation.
Limitations for Slip and Fall Injuries
In some jurisdictions, there are time restraints, or a statute of limitations, on when you can bring a claim for your injury. Each state has different limitations, therefore, its important to know these prior to the filing of your lawsuit. If you miss these limitations, your case will likely be dismissed before it is even heard.
There are three possible remedies for slip and fall injuries: legal remedies, punitive damages, and equitable remedies.
1) Legal Remedies
Legal remedies in tort are also known as "damages." Damages are compensatory, meaning that they are given for the purpose of compensating the victim for their injuries, losses, and pain/suffering. Compensatory damages are divided into two classes: Special and General.
General damages are those that flow naturally from the defendant’s conduct. Examples of general damages would be pain and suffering. Special damages are damages that financially compensate the injured person for losses suffered as a result of the defendant’s actions. Special damages are out of pocket expenses that must be proven. Examples of special damages include lost wages, medical expenses, and other financial losses.
2) Punitive Damages
Though not permitted in contract, punitive damages are awarded in tort causes of action. Punitive damages are meant to punish the defendant for their conduct and to deter future similar conduct. Punitive damages will be awarded in situations where the defendant’s conduct is especially heinous and where the jury determines that compensatory damage would not fully compensate the plaintiff for their harm.
3) Equitable Remedies
The most common equitable remedy in tort causes of action is an injunction. An injunction is a court order issued that compels are party to act or refrain from acting. A party that fails to adhere to an injunction will face criminal or civil penalties.
Injunctions are typically awarded in situations where monetary damages would not fully compensate a plaintiff for their harm. There are two main types of injunctions: Prohibitory injunctions that prohibit a party from acting and mandatory injunctions that compel a party to act. Injunctions can be modified or terminated if circumstances change in the future.
In a slip and fall case, it is likely that monetary compensation would sufficiently compensate the plaintiff for their injuries. As a result, it is unlikely that equitable relief would be awarded in lieu of money damages.
Can I Settle for a Slip and Fall Injury?
A slip and fall settlement occurs where the parties to a slip and fall lawsuit negotiate and agree on a fair amount that will compensate the victim for their injuries. A settlement occurs in lieu of a trial. A slip and fall settlement is usually conducted once a lawsuit is filed. Parties decide on a settlement when it can be determined that continuing with litigation would be too costly or too risky.
Most slip and fall cases are negotiated to settlement prior to trial. These usually occur where the claims are minor and the property owner is clearly at fault.
Do I Need a Personal Injury Attorney?
If you have been injured due to a slip and fall accident it is in your best interest to hire an experienced personal injury lawyer if you need help filing a lawsuit. Additionally, a personal injury attorney can help protect your rights and assure the more fair settlement for your loss and injuries.