Fall on Black Ice with a Pre-Existing Injury...

by Debbie
(Mt Pleasant, Iowa)

I fell on "black ice" in the parking lot of a major nationwide retail chain. I had a knee replacement a few months prior and fell on that knee on my way down. I was transported to the hospital by ambulance and later released to see my surgeon.

Who is responsible for these medical bills? Does the previous surgery have any effect on liability?

Visitor Question:
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ANSWER for "Fall on Black Ice with a Pre-Existing Injury...":

Debbie (Mt.Pleasant, Iowa):

When falling on ice on someone’s property the question of liability is always at issue. Compounding the problem is the issue of ice, whether “black” or not.

A landowner and her management company, if any, is responsible for the protection of anyone she invites onto her property. The responsibility is to make the property as safe as is reasonably possible under the circumstances.

The question here is whether the landowner/manager took all *reasonable* precautions to make the property safe for his invitees. The determination is subjective rather than objective; the issue being how far the landowner/manager has to go to make the property safe.

In the case of ice, factors which will be taken into account when determining liability include, but are not limited to: how long the ice had been there; whether it was continuing to snow or rain making it virtually impossible for them to keep the area free of ice; whether they knew about the accumulation and had the opportunity to clear the ice and failed to do; and other similar factors.

Those issues are usually finally decided in court.

Your “pre-existing injury” will not be a complete bar to recover compensation for your new injuries but it will certainly be a debatable issue with the insurance company.

Trying to decide what part of your recent injuries are separate and new is difficult to assess even by the most capable of doctors. As a result insurance companies are quite hesitant to offer an injured person much, if any settlement.

We suggest you visit with your doctors and see if they can give you any help in defining the latest injuries as separate from the pre-existing injury. That will be your best chance of convincing the insurance company to compensate you for your new medical bills, out of pocket expenses, lost wages, and even pain and suffering.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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