Who caused your slip and fall? Here’s a breakout of state fault laws and how they affect your eligibility for injury compensation.
Slip and fall claims and lawsuits are common in the United States. Often, these claims will focus on the particulars of the injury. For example, why did the grocery store employees overlook a cluttered walkway? When should the hotel staff have noticed the wet floor in their lobby?
Sometimes, the medical consequences of the injury are in dispute. The property owner may disagree that your injury was serious enough to make you miss work for two months. Or doctors might have different opinions about whether or not you need surgery.
As always, these cases are submitted to an insurance company or the jury and decisions are made.
Sometimes the dispute is a little less black and white. What if the hotel lobby was dry until five minutes before you walked through it? What if the puddle on the floor was caused not by the neglect of the property owner, but a sloppy guest who spilled their drink on the floor and walked away?
These situations are legally interesting because they involve the apportionment of loss or liability. Apportionment means dividing the blame between more than one at-fault party.
While a property owner may have failed to notice a dangerous condition that caused your injury, perhaps another person willfully or negligently helped to cause your injury. Maybe that person was you.
Apportionment is a question of fact, which means that in a personal injury lawsuit, it’s decided by a jury. Juries usually use the apportionment laws of the state to decide how much, if any, compensation is owed to the victim.
In other words, where you are injured and where you bring your claim can have a huge effect on how the case is decided. It can also persuade an insurance adjuster to give you a better or worse settlement.
This article examines state laws regarding apportionment as it relates to slip and fall premises liability claims. We’ll examine contributory and comparative negligence laws used across the country, as well as individual state variations on those laws. We’ll also look at some concrete examples of how these laws might be applied by a jury or insurance adjuster.
Contributory Fault Laws Can Kill Your Claim
In short: You can’t win if you’re even a little bit responsible.
Contributory negligence is a harsh rule that says if you are responsible in any way for your injury, you can’t get money from someone else who also caused your injury. In the context of slip and fall cases, this means that if the property owner can prove you were negligent in walking or observing your surroundings, you can lose your case.
Example: Hotel Slip and Fall Claim
Paul is staying at the Darwin Hotel in Virginia, in which there are elaborate fountains. One of the fountains malfunctions and sprays water all over a marble floor. The floor is in front of the front desk staff, who see the water and do nothing to clear it away.
The entrance to the lobby, however, has a large sign that says, “WARNING! Fountains may spray water and make the floor slippery! Take care when walking.” Beneath the statement is a cartoon picture of a man walking while texting on a cell phone and slipping in a puddle of water. The sign is positioned so that it’s impossible to walk into the lobby without seeing it.
Paul sees the sign, reads it and enters the Darwin lobby. His phone rings and he sees an important email has just come in. As he is reading the email on his phone, he slips on the water and falls on his back. Paul cracks his skull and suffers severe back injuries from the fall.
In this case, the Darwin Hotel is indisputably aware of an unsafe condition that it refused to remedy. Paul, however, saw the sign and immediately did the exact thing that he knew was unsafe. At trial, the jury finds the Darwin Hotel 90% liable for the injury and Paul 10% liable. Because he is in a contributory negligence state, Paul will lose his lawsuit.
Fortunately, contributory negligence laws are not the norm in the United States.
Four states currently use contributory negligence laws:
Washington, D.C. also applies contributory negligence rules to a more limited extent, though these rules are only relaxed in certain cases involving public highways and sidewalks. Most slip and fall cases in D.C. would probably use contributory negligence rules.
Pure Comparative Fault Favors Victims
In short: The victim is eligible for compensation, even when the victim was more to blame than the property owner.
Comparative negligence statutes are a more flexible alternative to the rigid contributory negligence scheme.
There are two varieties of comparative negligence: pure and modified. In a pure comparative negligence state, an injured person can recover from the property owner in a slip and fall, but only to the extent of the property owner’s portion of fault.
Example: Victim Wins Reduced Compensation
Patty is shopping at Dimesaver Grocery in Rhode Island. A cart with some merchandise was left by Dimesaver staff in the middle of an aisle. Patty was so busy looking for her favorite cereal that she was not paying attention. Her foot catches on the cart and she falls forward. Patty hits her face against the cart and breaks her wrist.
She now has $50,000 in medical bills and other damages. When Patty’s case goes to trial, the jury assigns 45% of the blame to Dimesaver for leaving a cart in an aisle where shoppers could trip over it. They assign Patty 55% of the liability because any reasonable person paying attention should have seen the cart.
Since she is in a pure comparative fault state, Patty still wins her case against Dimesaver for $22,500, or 45% of her damages.
States currently using pure comparative fault laws:
Modified Comparative Fault Sets Limits
In short: Slip and fall victims can lose the right to compensation if they are equally (51% bar) or less than half (50% bar) to blame for their injuries than the property owner.
Contributory fault and pure comparative fault states represent two extremes of determining liability for slip and fall accidents. Modified comparative fault laws are the compromise that most states have struck between these extremes.
As the name implies, modified comparative fault states use the same basic kind of law as pure comparative fault states. The difference is that they have limits on whether you can win based on your portion of fault for the circumstances leading to your injuries.
1. 51% Modified Comparative Fault Laws
The first kind of modified comparative negligence law is a 51% modified comparative fault (or 51 Percent Bar) law. These states allow you to recover even if you were negligent, but only if you are less than 51% responsible for your injury.
Example: Factory Slip and Fall Claim
Peter is touring the Driveshaft factory in Illinois. In an attempt at humor, Peter is wearing roller skates. This would not be a problem, except that a Driveshaft employee spills a large box of ball bearings on the floor. The ball bearings jam in Peter’s skates and he falls, cracking his pelvis. Peter can prove $100,000 in damages.
When he sues the factory, the jury finds Peter and Driveshaft equally responsible for the injury. While the ball bearings should never have been on the floor, Peter should never have been wearing roller skates. In a 51% modified comparative fault state, Peter can recover $50,000, or 50% of his damages, because he and the factory were equally responsible for the injury.
States using 51% modified comparative fault include:
2. 50% Modified Comparative Fault Laws
Fifty percent modified comparative fault states also use comparative negligence, but do not allow you to win unless the property owner (and other defendants, if there are any) is mostly responsible for your slip and fall accident.
Let’s use the example of Peter’s roller skates again, this time in Tennessee. Because the jury found that Peter and Driveshaft were each 50% liable, no one party was more at fault than the other. Therefore, Peter would lose his slip and fall claim since Tennessee is a 50% modified comparative fault state.
States using 50% modified comparative fault include:
South Dakota: A State With a Unique Law
All of the states mentioned above are clear about what level of fault is required to win a slip and fall case. South Dakota is a bit different. A slip and fall claimant can only win in South Dakota if they were “slightly” negligent compared to the property owner.
It’s hard to tell how much fault is “slightly negligent.” The South Dakota Supreme Court tried to clear this up when it held that a plaintiff who was 30% responsible for his injury was more than slightly negligent.
It’s unclear if this 30% number would be applied to other South Dakota cases. Suffice it to say that South Dakota appears to be more strict on this point than other comparative negligence states.
Don’t Get Blindsided by the Law
No case will ever have perfect facts. Very few will even have clear facts. The best you can do to prepare yourself for a claim is to know the law of your state and what you will have to prove to win your slip and fall case, or at least get a good settlement.
If you or a loved one has been injured after a slip and fall accident, and the insurance company is blaming the victim, talk to an experienced attorney as soon as possible for advice on how state negligence laws will affect your claim.
Contact a personal injury attorney or law firm in your state for a free consultation and case evaluation.
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