One of the things we frequently spend time counseling potential clients about are so-called slip and fall cases. People call to discuss fall injuries incurred at every big name retailer you can think of– Walmart, Albertsons, Shopko, Costco, Fred Meyer, etc. They call about numerous small businesses or other locations like unsafe parking lots and icy or uneven sidewalks. We certainly get more of these inquiries in the winter.
What Is A Slip & Fall Case?
Slip and fall is used by many as a sort of generic shorthand for any type of fall case. These include trips, stumbles and step and falls (where there is an unprotected hole in the ground). The legal jargon refers to these as premises liability cases. Particularly as people age, falls can cause devastating, life-changing, injuries up to and including brain injuries. Certainly we get at least one call on fall injuries each week and often three, four or more.
Fall Cases Are Hard Cases
We have successfully helped a number of people recover damages in appropriate cases, big and small. But, we analyze any fall case closely before we agree to accept the representation. And we continue to do so as we proceed through with the case. These types of these claims can be particularly difficult to pursue and win. Thus we spend a lot of time looking at the case facts and helping people understand the complexity of their particular situation.
Property Owner Liability Depends on Negligence
The initial question for a person injured in a fall is “what did the store (or property owner) do wrong?” The injured person is often surprised by that question. We’ve come to realize that is because the lies of the liability insurance industry has created a false set of perceptions about injury claims.
The mere fact you have been hurt does not mean that you have a valid claim. You must show that property owner was negligent in some manner. That means that the property owner must have unreasonably taken some action or failed to take an action that caused the fall. It is always important that the owner knew or should have known of the hazard that caused the fall. And when falls happen in the winter on ice or snow, there is always a question of how much clearing of a parking lot or walkway is reasonable and required. Or if it happens on a lawn or in a field where one might expect the ground to be uneven, what acts would the owner have reasonably been required to undertake?
The key is all a property owner has to do is act reasonably (not perfectly) to be found not negligent.
Governmental Property Owners Have Some Unique Protections
Falls on sidewalks in parks or on other government-owned property has a couple of additional hurdles to be overcome before they can be reasonably pursued. First, any potential claim must be filed with the appropriate governmental entity via the governmental tort claim process. There is only a six month time period to do this absent some limited circumstances.
Second, governments have an additional defense so-called “planning operational” immunity. Discretionary or planning functions of government are exempt from liability in tort. That means if an issue arises because of budget limitations or the like no claim lies on behalf of the injured citizen. A sidewalk that deteriorates because the government has no budget to address repairs likely does not give rise t liability. On the other hand operational functions conducted without `ordinary care’ give rise to no governmental immunity. Si, if a newly installed sidewalk is installed poorly creating a danger liability might exist.
Sometimes it is difficult to distinguish the two roles of government addressed in this immunity. Planning activities involve the establishment of plans, specifications and schedules where there is room for policy judgment and decisions. In contrast operational activities involve “the implementation of statutory and regulatory policy. Thus, absent some policy for inspection or replacement of dangerous properties, for example buckled sidewalks or uneven ground, governmental entities tends to be exempt from liability under Idaho law.
The Injured Person Must Prove What Happened
An issue directly related to the negligence question comes up when we ask the injured person, “how did you fall?” or “what caused you to fall?”. Frequently, they don’t know. This is understandable because of the the trauma of the fall. But, the law requires the injured person to prove the cause of the injury. Because it is the injured person’s responsibility to prove the negligence of the property owner. Thus, knowing why the fall occurred is a necessity.
An incomplete or faulty memory can create a huge barrier to recovery of the losses imposed on you. A person who took notice of conditions surrounding the fall as soon as possible after it occurs and who obtained the names of any witnesses who saw the fall has a better chance of showing the negligence of the property owner. This is not always easy, as a slip and fall often results in embarrassment and injury. A person’s first thought may be to leave as soon as possible for home or to seek medical care.
It is also important to report your injury to the property owner as soon as possible after your fall. And, to take photographs of the area the fell. This will preserve important evidence which will often disappear in a very short time. Its true that even surveillance cameras seem to be everywhere these days, there are numerous instance where such crucial evidence as the tapes from those cameras “goes missing.”
Comparative Responsibility Eliminates Many Fall Claims
The BIG thing that makes these claims uniquely difficult is the legal doctrine of comparative fault or comparative responsibility. A property owner will claim that the injured person should have seen the hazardous condition that caused the slip and fall. And could have avoided it. This is significant in weather related falls like in icy parking lots. The argument is essentially that “its your own darn fault.” The claim your injury happened because you weren’t paying enough attention. This claim sometimes is strong, such as immediately after a big ice storm. It is sometimes weak because retailers consciously distract customers from watching their steps. They use eye-catching advertising and packaging to encourage customers to focus on the products they want to sell rather than on watching your step.
The big problem with comparative fault in a fall case is the “50-50” rule. For a person to recover damages the negligent party must be at least 51% responsible. Even if the property owner was negligent and caused the fall they are not necessarily responsible for the damages. If the injured person is found 1/2 at fault (50% responsible) the law say there is no recovery.
Contact A Lawyer About Your Idaho Slip & Fall Case
A key thing in any fall case is to contact a lawyer sooner rather than later to have them help evaluate your circumstances. People often delay contacting us until after they have talked to the store, a regional manager and an insurance claims person. The claims people are invariably nice until you get the letter denying any responsibility. By then, often, substantial time has passed. This makes proving the claim that much more difficult. If you have been injured in a fall, call us. We will help you understand your situation and whether you have a claim for the harms and losses you have incurred. We are happy to help people all over Southern Idaho. An initial consultation and case review is always free.