In many premises liability cases, one of the most common defenses raised by property owners and their attorneys is comparative negligence. Under this defense, the property owner claims that the injured person was either partially or entirely responsible for their own injuries, often by failing to pay attention, ignoring warning signs, or wearing inappropriate footwear.
In states that follow comparative negligence laws, the amount of compensation you can receive may be reduced by the percentage of fault assigned to you. In some cases, if you are found to be more than 50% at fault, you may be barred from recovering any compensation at all.
However, even if the defense argues that you were partially responsible for your injury, that doesn’t mean you’re out of options. In this article, we’ll explain how comparative negligence works, discuss the strategies defense attorneys use to shift blame onto the injured person, and provide insight into how a skilled premises liability attorney can fight back to maximize your compensation.
Comparative negligence is a legal doctrine used in personal injury cases to apportion fault between the plaintiff (the injured person) and the defendant (usually the property owner or business). If the injured person is found to be partially responsible for their own injuries, their compensation will be reduced by their percentage of fault.
There are two main types of comparative negligence:
In states that follow pure comparative negligence rules, an injured person can recover damages even if they are 99% at fault for the accident. However, their compensation will be reduced by their percentage of fault. For example, if you are awarded $100,000 in damages but are found to be 25% at fault, your award will be reduced to $75,000.
Most states follow modified comparative negligence rules, which limit the plaintiff’s ability to recover compensation if they are found to be 50% or more at fault. In these states, if the plaintiff is found to be equally or more responsible for the accident than the defendant, they may be barred from recovering any compensation.
In premises liability cases, defense attorneys often argue that the injured person was partially or fully responsible for their own injuries. Below are some of the most common ways this defense is raised, along with strategies to fight back.
Defense attorneys frequently argue that the plaintiff’s own inattention or poor decisions contributed to their injury. For example, the defense might claim that the plaintiff was distracted (such as looking at their phone) or wearing inappropriate footwear (such as high heels) when the accident occurred.
Your attorney will work to show that the property owner’s negligence was the primary cause of the accident, even if you were momentarily distracted. In most cases, property owners are responsible for maintaining safe premises, and their failure to do so outweighs any momentary inattention by the plaintiff. Surveillance footage, witness statements, and expert testimony can be used to prove that the hazardous condition was dangerous enough to cause the fall, regardless of the plaintiff’s actions.
In some cases, the defense may argue that the plaintiff ignored warning signs or proceeded through a clearly marked hazardous area, such as a wet floor with a sign or a construction zone with warning tape. The defense may claim that the plaintiff voluntarily accepted the risk and should bear full responsibility for the accident.
To counter this defense, your attorney will focus on whether the warning signs were adequate and whether the property owner took reasonable steps to eliminate the hazard. For example, a single "Wet Floor" sign may not be sufficient if the spill was large, or if the warning sign was placed in an area that was difficult to see. Your attorney will argue that the property owner should have done more to prevent the accident, regardless of the presence of warning signs.
If the defense raises comparative negligence as part of their strategy, it’s important to have an experienced premises liability attorney who can help you fight back and maximize your compensation. Here are some key strategies your attorney may use:
One of the most effective ways to counter the comparative negligence defense is to gather strong evidence that supports your claim. This may include surveillance footage of the accident, eyewitness testimony from people who saw what happened, or expert opinions from safety professionals who can testify about the hazardous condition.
By presenting this evidence, your attorney can demonstrate that the property owner’s negligence was the primary cause of the accident and that any fault assigned to you should be minimal.
Even if you were partially distracted or didn’t see a warning sign, your attorney will argue that your actions were reasonable under the circumstances. For example, if the spill in a grocery store was difficult to see because it blended in with the floor, it’s reasonable that you might not have noticed it. Similarly, if the warning sign was inadequate or poorly placed, your attorney will argue that you could not have been expected to avoid the hazard.
In states that follow modified comparative negligence rules, it’s crucial to keep your percentage of fault below 50% in order to recover compensation. Your attorney will use legal strategies to minimize the percentage of fault assigned to you, ensuring that you are still eligible for compensation. By highlighting the property owner’s negligence and downplaying any minor mistakes you may have made, your attorney can help ensure that you receive the highest amount of compensation possible.
Comparative negligence is a common defense in premises liability cases, but it doesn’t mean you’re out of options. Even if the defense argues that you were partially responsible for your own injury, you may still be entitled to significant compensation if the property owner’s negligence was the primary cause of the accident.
At Ironclad Injury Law, we specialize in helping clients fight back against comparative negligence defenses and ensuring that they receive the compensation they deserve. If you’ve been injured in a slip and fall, trip and fall, or another premises liability accident, contact us today for a free consultation. We’ll work with you to evaluate your case, gather the necessary evidence, and fight to ensure that you receive the highest amount of compensation possible.
