Where you live can affect your injury compensation. Learn how state fault laws can reduce or eliminate a slip and fall payout.
Slip and fall claims and lawsuits are common in the United States. So are disputes about who’s at fault for the victim’s injuries.
Property owners and insurance companies always look to shift blame to the victim or another party. The issue then becomes apportionment of loss or liability. Apportionment means dividing the blame between more than one at-fault party.
Depending on the type of shared fault laws in the state where the fall occurred, the victim’s compensation can be reduced according to their share of fault, or denied entirely.
1. Pure 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. If the property owner can prove you were negligent in walking or not observing your surroundings, you can lose your case.
Example: Hotel Slip and Fall Claim
Paul is staying at a hotel in Virginia. One of the lobby 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 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 lobby. His phone alerts him to an email. He continues walking while looking at his phone, slips on the wet floor and falls. Paul cracks his skull and suffers severe back injuries from the fall.
In this case, the hotel is indisputably aware of a dangerous 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 hotel 90% liable for the injury and Paul 10% liable. Because he is in a contributory negligence state, Paul is not entitled to any compensation from the hotel.
Fortunately, contributory negligence laws are not the norm in the United States.
Four states currently use contributory negligence laws:
Alabama
Maryland
Virginia
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.
2. 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.
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 a grocery store in Rhode Island. A cart with some merchandise was left in the middle of an aisle by store employees. 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, smashing her face on the concrete floor and fracturing bones in her jaw.
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 the store for leaving a cart 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 the grocery store for $22,500, or 45% of her damages.
States currently using pure comparative fault laws:
Arizona
California
Florida
Kentucky
Louisiana
Missouri
New Mexico
New York
Rhode Island
Washington
3. Modified Comparative Fault Sets Limits
In short: Slip and fall victims can lose the right to compensation if they are equally or more to blame for their injuries than the property owner.
Modified comparative fault laws are the compromise that most states have struck between the extremes.
As the name implies, modified comparative fault states use the same 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 equally or less to blame than the property owner. If you share more than half of the blame, you get nothing.
Example: Factory Slip and Fall Claim
Peter is touring a 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:
Delaware
Hawaii
Illinois
Indiana
Iowa
Massachusetts
Michigan
Montana
Nevada
New Hampshire
New Jersey
Ohio
Oregon
Pennsylvania
South Carolina
Texas
Vermont
West Virginia
Wisconsin
Wyoming
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.
If Peter had his roller skate accident in Tennessee, he would not be eligible for compensation. Because the jury found that Peter and the factory 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:
Colorado
Georgia
Idaho
Kansas
Nebraska
North Dakota
Tennessee
Utah
South Dakota: A State With a Unique Law
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 premises liability cases. Suffice it to say that South Dakota appears to be more strict on this point than other comparative negligence states.
You Can Fight Allegations of Shared Blame
Every personal injury case is different. The best you can do to prepare yourself for an injury claim is to know the laws of your state and what you will have to prove to settle your slip and fall case.
If you or a loved one has suffered slip and fall injuries, and the insurance company is blaming the victim, talk to an experienced attorney as soon as possible.
The insurance company doesn’t get to have the last word on shared blame. A slip and fall lawyer can challenge your share of blame, or prove you were not at all negligent.
Most injury law firms offer a free consultation to injury victims. You owe it to yourself to see how state negligence laws will affect your claim.
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