Winter months are here for much of the country and that means increased risks of slip and falls. It can happen at a residence when someone slips on the steps leaving the house after a Christmas party. It can happen at a business with a slip in the parking lot. Regardless of the season or the weather, these accidents can happen for reasons ranging from construction to a wet floor.
If you end up as the defendant in one of these lawsuits, here are the most common slip and fall defense themes that lawyers will use.
The open and obvious defense
As a property owner, you have a duty of care to those that come on the premises. But the duty of care also extends to your guests and customers. If a danger would have been clearly seen and understood by any reasonable adult, then the lawsuit will likely fail. The 1 caveat to this defense is that if the danger was caused by another type of violation—let’s say the building code was not up to snuff—then this defense will not work.
The known risk defense
If you want to impress your conversational partner, drop the phrase “volenti non fit injuria” to them. It’s Latin for saying that “no injury can be done to a willing person.” The person is seen as willing if they took a risk when a reasonable path was available.
For example, a store owner is responsible for keeping their parking lot clear of ice. Let’s say there’s an ice patch as plain as day in one of the parking spots close to the store. At the cost of very mild inconvenience, a customer can park a little farther away. They decide to just walk over the ice and fall.
As the owner, you might be responsible for the ice and the person might have wanted to save a few steps, but there’s a good chance a court will simply say the customer took a risk and it didn’t work out.
The foreseeable danger defense
Let’s continue with our icy parking lot example and assume that the ice is black. A customer slips and falls on it and files a lawsuit. After all, they can’t be responsible for not avoiding that which they couldn’t see, right? Maybe, but there’s some gray area here.
The defense can argue that black ice is common enough to be assumed and that the person who fell is still responsible. This isn’t as strong a defense as the one directly above, but it’s still a viable legal option.
The reasonable prevention defense
Perhaps you, as the store owner, salted the parking lot when you opened up in the morning. By 11 o’clock, there was some cold rain and by 1 p.m. the lot was frozen again. There’s a slip and fall at 1:15 p.m. You took reasonable steps to meet your duty of care. Is that a defense? Yes, it is. Property owners are not expected to be perfect, just conscientious.
The word “reasonable” is used a lot in legal cases and especially with slip and fall defenses. Civil courts look at how a typical person might act, both as the owner and as the person who fell, in determining where the fault lies.
A good attorney who knows how to present evidence is vital to making certain your case is seen as reasonable.