Slip-and-fall, and trip-and-fall, cases, as a class, are a rather poor type of claim to have and, honestly, the great majority (well over 90%) of such cases that go to trial are inevitably lost simply because the law heavily favors the property owner, or store owner, over a customer, or other person, who has the misfortune to fall and be injured on the premises.
In my experience, the most difficult thing to communicate to a client, and have them understand and accept, is the fact that the property owner, or store owner, has absolutely no legal liability for their injury simply because the accident occurred on the owner's property or in the owner's store.
Whether or not the property owner, or store owner, is legally liable to someone who falls, and is injured, on their property depends entirely upon whether the person's fall, and resulting injuries, were the direct result of some negligence on the part of the property owner or store owner.
That means the owner must have either committed a careless or negligent act that directly caused the fall, and injury, or have carelessly or negligently failed to do something, which he had a legal duty to do, which directly caused the accident and resulting injury.
In the absence of such negligence, there simply is no legal responsibility on the part of the property owner, or store owner, for the person's injury. In my experience, that is a rather hard fact of life for most slip-and-fall, or trip-and-fall, victims to understand and accept.
One of the harshest rules involves what is called the "notice defense". That means that the injured party has the basic burden of proving that the property owner, or store owner, knew, or reasonably should have known, of the existence of the hazard (whatever it was), had a reasonable opportunity to either correct it or warn of it, but negligently failed to do so.
Frankly, most slip-and-fall, and trip-and-fall, cases are ultimately lost because the injured person is unable to prove how long the hazard had been present and whether the property owner, or store owner, knew, or reasonably should have known, of its existence.
Further, even where the property owner, or store owner, has been careless or negligent in some manner, it does not mean that he becomes absolutely liable to the injured person for the full amount of their injuries, damages and losses.
Such property owners, and store owners, also have available to them the defense of contributory, or comparative, negligence on the part of the injured person. That means that they can defeat, or diminish, the claim if they can somehow show that the injured person, themselves, somehow caused, or contributed to, the accident.
If they can establish that, they can defeat the injured person's claim or, at least, diminish it to the degree that the injured person, themselves, was at fault. Thus, if they could ever show that the injured person was 50 % at fault, they would owe that person only 50 % of what the value of their claim would otherwise be.
That particular defense can be very effective and is usually established by simply asking the injured person whether they saw the hazard or not prior to the accident.
If the injured person says that they did see the hazard, then the owner is permitted to argue that the injured person, not he, is at fault because the hazard was one that was open, obvious and known to exist by the injured person, who then chose to proceed, in the face of the hazard, and was injured through their own carelessness or negligence.
On the other hand, if the injured person says that they did not see the hazard in advance, the owner is entitled to argue that the injured person was careless, negligent and inattentive in failing to see, and avoid, the hazard and, thus, is responsible for their own injury.
That particular defense, obviously, puts the injured person in a double-bind situation and can effectively defeat the great majority of slip-and-fall, and trip-and-fall, cases or, at least, serve to severely limit recovery at trial.
Notwithstanding those potentially devastating defenses, which are available to property and store owners, the great majority of slip-and-fall, and trip-and-fall, cases are resolved by settlement prior to trial on a compromise basis. .
While we certainly want to recover the maximum amount of money possible for our clients under the circumstances, no constructive purpose can be served by fostering, or permitting a client to develop, unrealistic views of what the law is, how these cases are handled, or what the value of the case may be.
I would also caution you against developing views about what the law is and, particularly, what the value of your case is, based upon the hearsay tales that one inevitably hears from family, friends and neighbors. It seems an unfortunate fact of life that every injured person is subjected to endless tales about someone's uncle, or aunt, who slipped and fell on a grape at Safeway and received a multi-million dollar settlement -- even though they were not really hurt.
The law in these cases is long-standing, clear-cut, rather brutal, and, essentially, as I have characterized it for you. The application of that law varies infinitely from case to case based upon the particular facts of each case as well as a number of other factors.
What I can tell you, based upon my years in the personal injury business is that what someone's Uncle Joe, or Aunt Mary, received in settlement of their slip-and-fall case is totally irrelevant to your case.
In pointing these things out to you, it is important to understand that, as an attorney, I serve my clientsin two capacities.
When I appear in Court, or deal with the property owner, or store owner, or his insurance company, or his lawyers, I function as an advocate. That means that I set forth as strongly and forcefully as I can the positive aspects of your case while ignoring, or minimizing, whatever negative aspects it might have.
On the other hand, in my private communications, I have an obligation to communicate with you candidly, and honestly, about what I feel the problems are in your case and seek to work with you to try and overcome those problems. I would do you no service if I merely patted you on the back and told you what a wonderful case you had and how the insurance company was going to come forward and voluntarily pay you a substantial amount of money without regard to what the law is or what the particular facts in your case are. In that regard, I am a rather straight-from-the-shoulder kind of guy.
I hope this bit of information has, at least, help answer some of your questions and served to orient you to a very difficult area of personal injury law. Should you have any questions, please feel free to contact me for further informationl.
