Slip and fall accidents happen unexpectedly, but the consequences can be life-altering. Whether it occurs in a grocery store, on a sidewalk, or in a poorly maintained building, a slip and fall injury can lead to significant medical bills, lost wages, and long-term physical and emotional suffering. Victims of these accidents often face an uphill battle when trying to recover compensation, as property owners, defense attorneys, and insurance companies use a variety of strategies to avoid liability.
One of the most frustrating aspects of pursuing a slip and fall claim is dealing with common defenses that are designed to minimize or eliminate the property owner’s responsibility for the accident. In this article, we’ll examine some of the most frequently raised defenses in slip and fall cases and explore how a skilled attorney can help you overcome them and secure the compensation you deserve.
Before diving into the specific defenses, it’s important to understand the basic elements of a slip and fall claim. In most cases, these claims fall under premises liability law, which holds property owners responsible for maintaining safe conditions on their premises. To win a slip and fall case, the injured party (the plaintiff) must prove the following:
Even if all of these elements are met, defense attorneys and insurance companies will often raise several defenses to minimize liability. Understanding these defenses is key to overcoming them and achieving a successful outcome in your case.
One of the most common defenses in slip and fall cases is the "open and obvious" defense. Defense attorneys often argue that the dangerous condition that caused the fall—such as a puddle of water, uneven flooring, or a spilled substance—was so visible and obvious that a reasonable person should have seen and avoided it. They contend that the plaintiff either failed to exercise reasonable caution or voluntarily exposed themselves to the risk.
Imagine a customer in a grocery store slips on a large puddle of water near the entrance. The store’s defense attorney may argue that the puddle was clearly visible, that warning signs were placed nearby, or that any reasonable person would have seen and avoided the hazard.
To counter the "open and obvious" defense, your attorney will focus on proving that the hazard was not as apparent as the defense claims. For instance, the puddle may have been difficult to see because of poor lighting, a reflective floor surface, or crowded conditions in the store. Additionally, your attorney may argue that even if the hazard was visible, the property owner should have taken steps to eliminate it or provide a more effective warning.
Another frequently used defense in slip and fall cases is comparative negligence, which argues that the plaintiff is partially or fully responsible for their own injury. The defense may claim that the plaintiff was not paying attention, was distracted by their phone, was wearing inappropriate footwear (such as high heels), or ignored warning signs that were clearly posted.
Under comparative negligence laws, which are followed in many states, the amount of compensation a plaintiff can receive is reduced by the percentage of fault assigned to them. In some states, if the plaintiff is found to be more than 50% at fault, they may be barred from recovering any compensation.
If a person slips on a wet floor in a restaurant but was looking at their phone at the time of the fall, the restaurant may argue that the plaintiff’s inattention contributed to the accident. The defense may claim that the plaintiff failed to exercise reasonable care and should be held partially responsible.
To overcome the comparative negligence defense, your attorney will work to demonstrate that the property owner’s negligence was the primary cause of the accident. Even if the plaintiff was partially distracted or wearing footwear that may not have been ideal, this doesn’t absolve the property owner of their duty to maintain a safe environment. The focus will be on proving that the dangerous condition existed due to the property owner’s negligence and that it was the primary cause of the fall.
In some cases, defense attorneys may raise the assumption of risk defense, which claims that the plaintiff voluntarily accepted the risks associated with the hazardous condition. This defense is often used in cases where the plaintiff was aware of the danger but chose to proceed anyway. For example, if a person knowingly walked across a visibly icy parking lot without taking precautions, the defense might argue that the plaintiff assumed the risk of falling.
A shopper sees a "Wet Floor" sign in a retail store but chooses to walk across the wet area to reach an item on the shelf. The store’s defense attorney might argue that the shopper was aware of the danger and assumed the risk of slipping by walking through the wet zone.
To defeat the assumption of risk defense, your attorney will need to show that the plaintiff did not fully understand the extent of the hazard or that the property owner failed to mitigate the danger effectively. For example, simply placing a small sign may not be enough to prevent liability if the hazardous condition was severe and the store failed to block off the area or dry the floor promptly.
Another common defense in slip and fall cases is that the property owner had no knowledge of the hazardous condition and therefore cannot be held liable. Defense attorneys may argue that the hazard (e.g., a spill or broken step) had just occurred and that the property owner or employees didn’t have enough time to discover and fix it before the accident.
Under premises liability law, property owners are only responsible for hazards they knew about or should have known about through reasonable inspection and maintenance. If the defense can show that the dangerous condition was a surprise to the owner or that it had only recently occurred, they may try to avoid liability.
A customer slips on a spilled drink in a coffee shop. The defense argues that the spill happened just moments before the fall, and the staff hadn’t had a reasonable opportunity to clean it up or put out a warning sign.
To counter this defense, your attorney will focus on proving that the property owner should have known about the hazard through regular inspections or proper maintenance protocols. In cases where the hazard existed for an extended period, your attorney may argue that the property owner or employees were negligent in failing to identify and correct it.
Property owners may argue that they did not owe a duty of care to the injured person because the person was not legally allowed to be on the property or was in an area that was not intended for visitors. This defense often arises when the injured party was a trespasser or was using the property in a way not intended by the owner (e.g., walking in an employee-only area).
If someone slips and falls in a restricted area of a construction site, the property owner may claim that the person was trespassing or that the area was not open to the public, and therefore no duty of care was owed.
Your attorney can counter this defense by proving that the injured party was a legal visitor (such as an invitee or licensee) and that the property owner owed a duty of care to maintain a safe environment. In cases involving trespassers, the attorney may argue that the property owner still owed a limited duty to protect even trespassers from known dangers, especially if the hazard was highly dangerous.
Slip and fall cases often face significant opposition from property owners and their legal teams, who use a variety of defenses to shift blame onto the injured person. However, with the help of a skilled attorney, these defenses can be successfully countered, allowing victims to recover the compensation they deserve.
At Ironclad Injury Law, we have extensive experience overcoming the "open and obvious" defense, comparative negligence claims, and other common strategies used by defense attorneys in slip and fall cases. If you’ve been injured in a slip and fall accident, we can help you build a strong case, gather the necessary evidence, and fight for your rights.
Contact Ironclad Injury Law today for a free consultation, and let us help you navigate the complex world of premises liability law and secure the compensation you deserve.
