If you are considering bringing a claim after a slip and fall accident, you may want to be forewarned about some of the legal obstacles that you might encounter. Property owners who are in danger of being sued in a premises liability claim also should know that they may have arguments that they can raise to reduce or avoid liability. These cases are highly fact-intensive, so whether a certain defense applies in your case will depend on a careful investigation of the circumstances.
This defense involves arguing that the plaintiff was partly or entirely at fault for causing the accident. Perhaps the hazard was “open and obvious,” or somewhat apparent, but the victim was distracted by something else, so they failed to notice it. Their distraction might result in a finding that they were at fault for the accident to a certain degree. The victim’s award then would be reduced by the percentage of fault associated with them. For example, a hotel might fail to maintain a stairway appropriately, while a guest might be talking on their phone while walking down the stairs. If they trip and fall on the section that was not maintained properly, both parties might bear some of the fault. If the victim was 30% at fault, they could receive compensation for 70% of their damages.
Some states have modified the rule of comparative negligence, such that a victim can receive compensation only if they were less than 50 percent at fault or if they were 50 percent or less at fault. Being above the permitted threshold would prevent them from receiving any damages. Meanwhile, a few states adhere to the rule of contributory negligence, which prevents a victim from recovering any damages if they were at fault for the accident to any extent at all. You should investigate the comparative or contributory negligence rule in your state to determine the impact that it might have on your case.
A defendant also may respond to a premises liability claim by arguing that they lacked sufficient knowledge of the hazard on the property. Essentially, this means that the plaintiff cannot meet a required element of the claim, which is actual or constructive notice. If it is unclear when the hazard arose, or if the plaintiff lacks evidence to show how long it existed, this defense can be effective. For example, if a customer slipped on spilled produce at a supermarket, the store might argue that the produce was not on the floor long enough before the accident for an employee to have noticed it. Photographs, video footage, and witness testimony play key roles in determining how long a hazard existed.
If the plaintiff does not provide a sufficient basis to support this element of the claim at the outset of the case, the defendant may be able to win on summary judgment or get the case dismissed for failing to state a claim. This means that the plaintiff would not be able to get their case to a jury.
Perhaps the plaintiff identified the wrong party as the defendant. Suing the right defendant can be tricky, especially when the plaintiff is suing a government entity after an accident. Different entities may be responsible for maintaining different parts of the premises, and the overall property owner may not be the party in control of the area where the victim was injured. If the plaintiff sues the wrong defendant, they may be able to withdraw the complaint and refile against the appropriate defendant if the statute of limitations has not expired. In cases involving the government, however, the plaintiff may not have much time to refile the case because the notice period in these cases tends to be very short.
A premises liability case also may be dismissed if the plaintiff filed it outside the statute of limitations or a government notice period. These time restrictions are generally strictly interpreted by courts. The exceptions to statutes of limitations and notice requirements usually are narrow, so you should not assume that an exception applies to your situation without consulting an attorney about it.