In a previous post we discussed why most slip and fall cases are unsuccessful due to lack of preparation by the plaintiff’s attorney. Today we would like to discuss the four elements of a slip and fall case that must be proven to win the claim.
People often assume that just because they fell on someone’s premises, they can instantly sue. This is not always the case. In fact, plaintiffs must provide sufficient evidence to prove four very important elements in a slip and fall / trip and fall case. Without being able to prove each of the following elements, there is no reason to believe you have a legitimate lawsuit:
- Duty on the part of the defendant: Defendant owned, controlled or operated the premises.
- Notice: Defendant knew or should have known of the condition that could cause harm to the public.
- Dangerous condition: The condition that causes plaintiff harm was dangerous not “minor” defect.
- Damages: Plaintiff suffered injuries as a result of the dangerous condition.
In laymen’s terms, duty basically means that the owner or occupier of the property has a responsibility to maintain the premises and address any conditions that may cause harm, all within reasonable means. The argument of owed duty comes from evaluation of whether the owner or occupier had or should have had control of the premises where the accident occurred. Properties where managers and owners are not one and the same, arguments arise to determine the party who actually had control of the premises at the time of the injury. Without proving defendant’s owed duty, the plaintiff cannot win the case.
Notice is one of the most important issues that must be established in a slip and fall case. Plaintiff’s attorney calls on experts to testify to the typical industry practices regarding inspection, maintenance and hazard prevention procedures. If the defendant is shown to have deviated from the industry practices, it may be possible to prove improper premises management resulting in a dangerous condition.
In a case where the defendant knew about the hazard, but chose to ignore or didn’t act in time to remove it, actual notice is established. This is not a likely scenario as most people do not intend to do harm to others, and are fully aware of the possible risks of leaving hazardous conditions in the open.
A more likely scenario is where the defendant claims to have had no knowledge of the hazard, but proven otherwise by the plaintiff’s attorney. If the plaintiff’s attorney can prove that the defendant failed to properly inspect the premises (for whatever reason), deviating for the standard procedures accepted by the industry, then constructive notice is established. In places like supermarkets it is common sense that liquids may be spilled during normal hours of operations, and that someone should periodically check to see if an unreported spill has occurred. Failing to conduct a regular inspection does not excuse the defendant’s claim to lack of knowledge about the existing hazard.
3. Dangerous Condition
It may seem obvious to the injured individual that a dangerous condition existed at the time of the accident; however it still has to be proven. The plaintiff (injured person) must show that the defendant knew or should have known about the existing dangerous condition on the premises. The defendant could and should have taken care of this dangerous condition but didn’t – thus creating an unreasonable hazard which ultimately caused the injury. One other important fact must be proven in conjunction: that the premises were used as intended (in a manner that is typically expected.) A dangerous condition must be proven to be significantly different from a minor defect such as normal wear and tear that typically creates no potential for harm.
Many people don’t report the accident until later on when the injuries make themselves obvious. However, simply claiming that the injuries suffered are a direct result of the accident is not that easy. There must be sufficient proof that the dangerous condition could be responsible for diagnosed injuries (in other words, the mechanics of the fall and landing are consistent with the injuries being contested.) The defense may lead the jury to believe that the injury is not a result of the accident, and must be proven otherwise for successful premises liability litigation.
If you’ve tripped, slipped and fallen on someone’s premises and have experienced measurable pain, it is best to document conditions as best as possible and seek treatment right away. You are better off being prepared for the worst (in an event that your injury leads to mounting medical bills, missing work time and worse), than to take it easy and brush it off as if nothing happened.
Did you experience a slip and fall injury and chose to ignore it until now?
Contact our office to see how we may be able to help you.