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Premises Liability Law

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Defenses to a Slip and Fall Claim

Common Defenses to Slip and Fall Lawsuits

Property owners are expected to take all reasonable steps to protect their visitors from harm, and they may face civil lawsuits when this duty of care is not met. However, they are not required to ensure that visitors remain safe at all times, and those who pursue such litigation must be able to establish that their injuries were caused by the owner's negligence. Property owners facing a slip and fall claim generally mount two types of defense. They either claim that they were not responsible for the conditions that caused the accident in question or they point the finger of blame at the plaintiff.

The Open and Obvious Defense

The open and obvious doctrine may absolve property owners of responsibility when accidents and injuries are caused by hazards that would have been clear to any reasonable person. This is because those visiting a property have a duty of care of their own to avoid obvious dangers and protect themselves from harm. However, property owners may still be held responsible if the knowledge of open and obvious dangers alone would not be enough to protect their visitors from injury. The open and obvious defense would also likely fail when clearly dangerous conditions have been caused by some form of malfeasance such as a building code violation.

Volenti Non Fit Injuria

This is similar to the open and obvious defense common in slip and fall cases, but it's mounted when visitors were undeterred by dangers they knew, or should have known, about. Volenti non fit injuria, which means no injury can be done to a willing person, is a legal doctrine that prevents individuals from recovering damages when they have been injured after knowingly putting themselves in dangerous situations.

Such a defense might be raised if a baseball fan filed a lawsuit after being struck by a foul ball, but the doctrine does have limitations. Owners could still be held responsible in this situation if they failed to install or properly maintain the nets or screens that are usually placed in stadiums to stop foul balls.

Comparative and Contributory Negligence

Personal injury cases often involve plaintiffs and defendants who have both acted negligently, and the biggest challenge facing courts is often deciding how to apportion blame based on a given set of facts. Plaintiffs who have been partially at fault may be able to recover reduced damages in states with comparative negligence laws, but they would not be able to recover anything in the jurisdictions that follow stricter contributory negligence rules, no matter how slight their responsibility was.

These arguments can be particularly contentious in slip and fall cases when shoppers have sued after falling on puddles and supermarkets or other stores cite the plain view doctrine. While retailers may concede that it is their responsibility to clean up spills in a timely manner, they could also argue that shoppers should look where they are walking. The defendants in these cases may also claim that plaintiffs who ignored or missed warning signs were distracted or not paying attention.

The Choice of Ways Defense

This defense may be raised when those hurt in slip and fall accidents may have avoided injury by acting differently or taking an alternative path. This is another defense that places some or all of the blame for slips or falls on the injured party. However, judges may not allow it in situations where visitors had no way of telling which path was safer.

Dangers Were Unknown or Unforeseeable

To prevail in a slip and fall lawsuit, plaintiffs must be able to prove that property owners knew, or should have known, about the dangerous condition that caused their injuries. While this may be relatively straightforward when hazards have been caused by employees, it can become a thorny and contentious issue when visitors or unforeseen circumstances are to blame. In these situations, courts will often examine the protocols and procedures in place for reporting and dealing with hazards when determining whether or not property owners did enough to protect their visitors from harm. Judges may also consider how likely or unlikely the circumstances of the accident were before ruling on these issues.

Reasonable Steps Were Taken

The defendants in slip and fall cases often maintain that they did all that they reasonably could to prevent accidents and injuries, and the burden is on the plaintiff to prove that such efforts failed to meet accepted standards of care. Property owners will generally be asked how long dangerous conditions were allowed to persist and what could realistically have been done to address them. Checking a convenience store floor for puddles every 15 or 20 minutes may be all that is needed during the early morning or late evening hours, but a far more diligent approach may be called for when business is hectic and spills are more likely.

Plaintiffs who make a slip and fall claim must establish that property owners knew, or should have known, about a dangerous situation and failed to take adequate steps to prevent an accident. Placing warning signs next to a spill or broken paving stone may be a prudent first step to take, but property owners could still be held responsible for injuries caused by the underlying problem when they fail to apply a more permanent solution in a timely manner. Courts may also take the general condition of the property into consideration when weighing the defenses raised in slip and fall lawsuits, and assertions that reasonable precautions were taken and injuries were unforeseeable may be less persuasive when the properties involved are poorly lit, inadequately maintained or understaffed.