Learn how insurance companies use shared negligence laws to avoid payment. Here’s how you can prove the slip and fall was not your fault.
Many slip and fall cases happen away from home, caused by the business or property owner’s failure to take care of a hazardous condition on the premises.
When you’re injured because of someone’s else’s negligence, you have the right to pursue compensation from the property owner, usually through their homeowners’ or business liability insurance.
In some cases, both the victim and the property owner share the blame for a slip and fall accident. Unfortunately, in too many cases, the insurance adjuster wrongly tries to shift part or all of the blame to the victim to avoid paying the full value of their slip and fall injury claim.
Comparative and contributory negligence allegations arise in slip and fall cases involving shared fault or blame.
Under a shared negligence theory, a property owner or their insurance company asserts that it should not have to pay for your injuries because you were also to blame for your accident.
Injury victims need to know that there are ways to counter these assertions to secure the compensation they deserve. Here’s what you need to know to prove the slip and fall accident was not all your fault.
Understanding Shared Negligence Laws
Negligence means that a person or entity failed to take reasonable care in doing something.
The term is important in slip and fall cases because you have to prove that the property owner or manager acted negligently, and their negligence resulted in your injuries.
For slip and fall claims and lawsuits, the burden is on you to prove the property owner knew, or should have known of an unsafe condition but failed to take reasonable steps to fix it.
Comparative negligence is a type of assertion a property owner can use to challenge or defeat your claim of negligence. The assertion says that you were also negligent in your slip and fall accident or shared the blame for it.
For example, you may have slipped on a store’s icy sidewalk when wearing a pair of worn shoes with no traction. If you file an injury claim, the adjuster will likely raise a comparative negligence argument. The adjuster will say the company shouldn’t pay your claim because you helped cause your own accident by wearing the worn shoes.
Most states in the U.S. have a system of comparative negligence laws which apply to all types of injury claims. These laws say that even though injury victims may have helped cause an accident, they can still receive compensation from the other at-fault party, depending on the percentage of shared fault.
In the icy sidewalk example, an adjuster might say that you were 10 percent to blame for causing the slip and fall accident. If you then settle your claim for $10,000, you’ll receive a total of $9,000 in compensation.
But what if the adjuster says you were 60 percent to blame for wearing worn shoes in icy weather? In most states, you have no right to any compensation if you’re equally or more at fault than the property owner.
Your potential compensation is at stake, so don’t let the insurance adjuster have the last word. You don’t have to accept the adjuster’s decision on your percentage of fault if you were not at all to blame, or not nearly as much to blame as the property owner.
Among the states with comparative negligence laws, there are different rules that affect how much compensation, if any, you can expect if a slip and fall accident was partly your fault.
Pure Comparative Fault
There are only ten pure comparative fault states. Pure comparative fault laws say that slip and fall victims can receive payments for their losses even if a property owner was only a little bit negligent, and the person who fell was mostly to blame.
Example of Pure Comparative Fault
Lisa is in a rush and needs a few groceries. She enters a grocery store and runs through the produce department. She is wearing flip-flops and shouting on her phone.
Lisa soon trips and falls on a few grapes that dropped from a display table. She sprains her right ankle and suffers losses in the total amount of $10,000.
Lisa files an injury claim with the store’s insurer. She agrees with the adjuster that she was 75% to blame for the accident. They agree to settle her claim for $2,500.
Here, Lisa can still receive compensation even though she was largely to blame for the accident.
Some comparative fault states include:
- New York
Modified Comparative Fault
In modified comparative fault states, injury victims can only receive compensation under certain scenarios.
Some states are known as less-than-51 percent states. Laws in these states say that victims can only recover payment for losses when they are less than 51 percent responsible for their injuries. The laws also say that victims can recover if they were equally at fault for causing an injury.
The less-than-51 percent states are in the majority, and some include:
Other modified comparative fault states are less-than-50 percent states. Laws in these states say that victims can only receive compensation if they were less than 50 percent responsible for their injuries.
The slip and fall victim is only entitled to compensation if the property owner is more to blame than the victim. If the victim is equally or more to blame, they are barred from receiving compensation from the other at-fault party.
Some less-than-50 percent states include:
Example of Modified Comparative Fault
John is walking down the stairs of a department store. He’s on his phone researching the latest trends in men’s fashion. As he gets near the base of the stairs, he trips and falls over a floor mat that somehow worked its way onto the staircase.
John tries to break his fall with his hands and breaks his right wrist in doing so. He receives emergency care and will require physical therapy.
John lives in Illinois. When he files an injury claim with the store’s insurance company, he agrees with the adjuster that he was 50 percent to blame for the accident.
If the claim settles, John can still receive compensation, but he’ll only get half of the claim’s value. John can receive payment because he was less-than-51 percent to blame for his injury.
If John were in a 50 percent bar state like Colorado, then he’d receive no money for his injuries. His equal share in the fault would bar his right to any compensation for his damages.
Pure Contributory Negligence
Four states and the District of Columbia have refused to adopt comparative fault laws, and rely on harsh contributory negligence rules.
The doctrine of pure contributory negligence maintains that if you share any portion of blame for your accident, you can’t sue someone else for negligently causing it.
In other words, if you had any responsibility in causing your own injury, contributory negligence states don’t allow you to recover any personal injury damages from the other at-fault party.
In pure contributory negligence states, if you’re as little as 1 percent to blame for the circumstances of your slip and fall, you would not receive a dime in compensation for your losses.
Fighting Back When They Blame You
Claims’ adjusters fight personal injury claims tooth and nail. They look for ways to deny claims because denial saves their employers money and helps the adjuster advance in the company.
One common way insurers fight or deny a slip and fall claim is to shift the blame onto the injury victim.
For example, they might claim that you:
- Didn’t watch where you were going
- Ignored warning signs
- Wore inappropriate footwear
- Entered a section of property that is off-limits to customers or visitors
- Were running or acting in a manner inappropriate for the situation
- Ignored an obviously dangerous condition
- Failed to seek appropriate medical attention following a fall
Countering Comparative Negligence Allegations
You can counter a comparative negligence allegation by showing that you weren’t, in fact, responsible for your injury.
For example, if an adjuster states that you weren’t watching where you were going, you’ll have to demonstrate that you were. Likewise, if the insurer says you were wearing inappropriate footwear, you’ll want to demonstrate that your footwear had no bearing on the situation.
Don’t let the adjuster talk you into accepting partial fault for your slip and fall accident before you’ve had a chance to consult with an experienced personal injury attorney.
If you have to admit some percentage of fault for some reason, it comes down to the allocation. Know your state’s comparative negligence laws, and don’t let the adjuster have the last word on your share of blame. It could cost you any chance at compensation.
Mitigation of Damages
In personal injury matters, injured victims have a duty to mitigate their damages. This duty means they have to take appropriate actions to reduce their injuries or losses.
The duty to mitigate typically means that you sought medical care after your slip and fall accident, listened to your doctor’s advice, and followed up with any other recommended treatment (for example, physical therapy).
Claims’ adjusters like to say that victims were responsible for their injuries because they didn’t mitigate their damages. You’ll want to prove to the insurer that you took fitting steps to help minimize your losses.
You can often show this by providing:
- Medical bills and records
- Written statements from medical care providers
- Letters from your employer evidencing any light work duties
- Journal entries showing that you had to miss events or activities during your recovery
If the adjuster asserts that you made your injuries worse, you’ll need to respond. If you followed every one of your doctor’s instructions, say so and show your evidence.
If your doctor ordered you to stay off your feet for two weeks, but there’s video on social media of you dancing at a wedding three days after your slip and fall, you’ll have to work harder to prove you’re still entitled to injury compensation.
Cases Involving Open and Obvious Hazards
Many insurance companies like to allege comparative negligence by saying that any dangerous condition on a property was open and obvious.
The argument here is that since the condition was so obvious, any reasonable person should have recognized it and taken appropriate precautions.
Keep in mind that there is an important exception in these circumstances. The exception applies when you were distracted and didn’t see the open and obvious hazard. You’ll also need to show that your distraction was something the property owner could have foreseen.
If you can prove you didn’t see the hazard, then the open and obvious argument goes away.
Case Summary: Slip and Fall Victim Not At Fault on Appeal
In October 2009, Steven Henderson slipped and fell on his condominium building entryway stoop and stairs. It was raining before and at the time of the accident. Henderson suffered severe injuries to his left ankle and knee, which required multiple surgeries.
In the year before Henderson’s fall, the condo’s property manager hired a company to maintain the building’s common areas, including the stairs and stoop. The maintenance company applied a concrete epoxy sealant to the stoop and stairs, which made the stairs slippery when wet. Henderson admitted that he slipped twice on the steps in the prior year, and said that complaints were made to the condo property manager.
Through his attorney, Henderson filed an injury lawsuit against the condo building owner, the property manager, and the maintenance company that applied the epoxy.
Lawyers for the defendants (the condo owner, property manager, and maintenance company) requested that the judge dismiss the case since the stairs presented an “open and obvious risk” that Henderson was well aware of. The defendants argued they had no duty to protect Henderson from an “open and obvious risk.”
Henderson’s attorney argued that the “open and obvious risk” defense did not apply when a reasonable person might be distracted or forget about the potential hazard. In this case, Henderson was coming home at night in the rain, and wasn’t thinking about the slippery steps as he was heading up the stairs to get to his residence.
The trial judge ruled in favor of the defendants and dismissed the case.
Henderson and his attorney appealed the lower court’s decision to the Illinois Supreme Court.
The appellate court ultimately agreed with Henderson and sided with his distraction claim. The court said that both time and weather conditions worked to cause Henderson to not be thinking about the potentially slippery steps.
The court also stated that the defendants did owe a duty of care and “it was reasonably foreseeable and sufficiently likely that a resident in Henderson’s circumstances would suffer injury from the slippery-when-wet condition…”
The appellate court sent the case back to the trial court for further proceedings.
Evidence the Slip and Fall Wasn’t Your Fault
Evidence will play a huge role in slip and fall cases that involve comparative negligence claims.
If an insurance adjuster says you were partly to blame for your slip and fall injuries, you can’t just sit by and say that you weren’t responsible. You’re going to have to back up your assertions with concrete slip and fall evidence that shows you didn’t contribute to your injuries.
If a claims adjuster does raise a comparative negligence claim, listen to the basis for the claim. Then it’s a smart idea to review any evidence that pertains to that basis.
If you find something that helps limit your fault, then present that evidence to the adjuster. At the same time, if you find something that increases the property owner’s fault, then highlight that evidence as well.
Remember that it’s your job in a slip and fall case to show:
- The property owner knew of an unsafe condition
- The owner failed to fix it
Try to find evidence of both, and then use it to show that a property owner was more at fault for causing your injuries.
Knowledge of an Unsafe Condition
Two forms of evidence commonly used to show knowledge are surveillance videos and incident reports.
Surveillance videos are important because they’ll show the timing of events leading up to your accident. If there is a long delay between a hazardous condition and your fall, then the video can help show an owner knew, or should have known of a danger but did nothing about it.
Incident reports are typically created by stores and other businesses when workers or visitors are injured on the property. These reports will include specific details of an accident. If the details of previous reports are similar to your case’s facts, you can use them to show that an owner was aware of an existing dangerous condition yet didn’t take steps to correct it.
Evidence of an Unsafe Condition
Evidence of an unsafe condition is usually easier to find than evidence that an owner had a duty to protect a customer or visitor.
Common unsafe conditions include:
- Broken stairways, handrails, or decks
- Cluttered common areas
- Wet floors
- Damaged, unlighted, or icy sidewalks and parking lots
Physical evidence, like a broken handrail, can prove that a condition is unsafe. But a slip and fall victim can also show a danger existed by using witness statements, photographs, and videos.
If possible, try to collect this evidence immediately after your slip and fall while you’re still at the accident scene. If you’re not physically able to do this, ask someone with you or a witness to help.
If your injuries prevent you from gathering important evidence, try to return to the accident scene as soon as possible.
If you take photographs, take notes regarding the date you took them and any differences, regarding the photo’s subject, between your accident date and the date of the picture.
Photograph anything related to the fall, such as:
- Weather conditions
- Your injury
- Your clothes (including shoes)
- The location of the accident
Use our free Slip and Fall Evidence Checklist to ensure you don’t overlook vital evidence.
Help in Comparative Negligence Cases
Slip and fall injury claims get complicated when the property owner or their insurance company tries to pin the blame on you. If they get away with blaming you, the insurance company will minimize or deny your injury claim.
Never apologize or admit to any fault after a slip and fall. Don’t let an adjuster manipulate you into accepting blame before you can talk to an experienced personal injury attorney. Being distracted or wearing certain footwear does not automatically mean you share the blame for your slip and fall injuries.
A good slip and fall attorney will help you in a number of ways. They are knowledgeable about the comparative negligence laws in your state and will help you better understand if you truly did contribute to your injuries. If it turns out that you are partly to blame, your attorney will make sure your allocation of fault is reasonable and fair, so you get an appropriate amount of compensation.
An attorney can use subpoenas and other legal tools to get vital evidence, like surveillance camera footage, incident reports, and employee witness statements, that you would not be able to get on your own.
Most personal injury attorneys provide free consultations to slip and fall victims. Also, injury attorneys typically work on a contingency fee basis, meaning you only pay legal fees when your case settles or you win a court award.
Don’t let an insurance company take away your money because you may have contributed to an accident. It costs nothing to ask an attorney how to prove the slip and fall was not your fault.
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