First: An Unsafe Condition and Evidence of Who is Responsible for It
Lawyers call this “proving liability.” Injury claims are based upon negligence, which is showing that a duty was owed to you and someone failed to meet that duty. Normally, this is a duty of "reasonable care". Proving an unsafe condition can be based on who is responsible for it being there.
For instance, if steps were built with the treads being too narrow, (under the building code) it’s possible to hold the builder or the property owner responsible. In another example, a property owner could be held liable for their failure to reasonably maintain stairs which were broken or in disrepair, even if they had been originally built to meet code.
Applying these concepts in fall cases often proves to be challenging. You need a lawyer experienced in handling them, one who fully understands how these principles are applied and who is able to gather sufficient proof to win. You wouldn’t allow a family practice doctor to operate on your heart, don’t allow an inexperienced lawyer to handle your fall case.
Some cases may be proven relying on common sense. A good example might be a puddle of water on a floor of a grocery store. Rarely is there a witness to the spill occurring. Often proof must be on what lawyers call “circumstantial evidence.” If the puddle is two inches in diameter and no one knows how it occurred, there isn’t evidence to show how long it was there.
Negligence and Liability Can Come in Many Forms
Remember, if we can’t prove the store owner created it, they can still be found responsible if it can be shown they allowed it to remain there for so long they should have discovered it. If the same puddle was three feet around and there are cart tracks going through it, there is a good argument it was allowed to remain on the floor for so long, the store should have known about it, if they were taking reasonable precautions. In this situation, they would have to remove it or warn that it was there (put up cones or block off the aisle.)
Other types of trip and fall or slip and fall injury cases require your lawyer to hire an expert in order to prove there was a violation of some code or industry standard. There are any number of codes which require minimum standards for construction of steps, handicapped parking, ramps, tripping hazards on sidewalks and other walkways, curbs, handrails, lighting and slip resistance of floors, to name a few. You may have heard of the Americans with Disabilities Act, Life Safety Code, as well as Building Codes at the state, county and national level, as well as others. You should question a lawyer you intend to hire about their familiarity with these codes, as well as, experts required to prove they may have been violated in your case.
We recently completed a case of a client which illustrates my point. Our client was seriously injured on a crushed sidewalk at an apartment complex. We hired an expert to testify the broken sidewalk was a tripping hazard in violation of numerous codes and the lighting was insufficient. In addition, an expert was obtained to testify about how long the sidewalk had been broken. He based his opinion on how the concrete had aged where it was broken and said it had been that way for at least a year. So while we did not have evidence of exactly when it was broken or crushed, we were able to successfully prove the owner to be responsible because of the evidence showing how long the code violations had existed. They should have simply exercised reasonable care in observing this obvious defect by repairing it or warning of its presence.
Florida law also provides that a business owner may be found responsible for someone’s injury if they have adopted a method of operation which is unsafe by exposing someone to danger or was carried out in a negligent manner. An example might be stacking heavy items so they easily become dislodged and fall on customers, or having no policy for placing matting at a store entrance despite wet weather conditions.
The Opposing Side Will Argue You Were Entirely or Partially at Fault!
Florida is a comparative fault state. One of the first goals of an adjuster is to look for evidence to argue you were responsible for your own injury. They will raise every argument that you share some or all of the blame. Were you carefully watching where you walked? What type of shoes were you wearing? Were you distracted – or carrying something so you couldn’t see where you stepped? Had you been drinking?
This is a critical issue for them because they know that every percentage of fault they can apply to you, reduces your recovery to them by that percentage. For example, if they feel a jury would find you to be 25% at fault, your recovery against them would be reduced by 25%. Of course, this only applies in those cases where there is a basis to argue, you had some responsibility. However, you should expect in most fall cases the other side is going to be arguing some degree of comparative fault by you.
Second: Injuries Caused by the Unsafe Condition
Your injury must have been caused by the fall on the unsafe condition. Lawyers refer to this as “causation.” Causation may be obvious….when you suffer a broken bone, a herniated disc in your back, or suffer a brain injury by a blow to your head. However, sometimes the evidence of an injury is not as clear cut. For instance, where there is a delay in the onset of your symptoms or where you may have aggravated an injury which already existed to the same part of your body. This raises the issue of whether your injuries were solely from the accident, aggravated by the accident, or unrelated to the accident.
Always be completely honest with your lawyer and your doctor about any preexisting injuries or treatment to the same area of your body injured in the fall.
Third: Financial & Non-Financial Damages
You must prove that as a result of the fall on the unsafe condition, you have suffered financial or other intangible losses. Financial losses may include wages, your ability to earn wages, medical expenses that you have paid or are obligated to pay, as well as, medical expenses you most likely will have to pay in the future. Your lawyer will need the help of your doctor and perhaps other experts in proving your financial losses, such as a vocational expert and an economist.
Intangible losses are those things which you can not precisely calculate. They include what you’ve often heard of as pain and suffering damages. This includes emotional and physical pain, suffering, scarring, disfigurement, inconvenience and loss of the enjoyment of life.
Your financial and “pain and suffering” damages must be large enough for an insurance company to feel economically threatened by your claim. Small damage cases do not motivate an insurance company to take your claim seriously, because they know you will have difficulty finding a lawyer to pursue them.
Fourth: The Ability of the Responsible Party to Pay Your Damages
In evaluating whether to accept your fall injury case, any lawyer must decide if the responsible party actually has some way to pay for your loss. This usually comes down to whether they have insurance coverage. Your lawyer will require the responsible party to provide proof of any liability insurance in effect at the time, which may offer coverage for your losses caused by your injury.
Many large commercial companies such as retail stores, apartment complexes, and big box stores may be self insured. That means they will pay any settlement or jury award from their own funds. Some businesses are partially self insured. For instance, they might be responsible for the first $100,000 for any payments made and would have insurance for any amount over their self insured limit. Dealing with self insured defendants is different than dealing with an insurance company. You should discuss with your lawyer how a self insured defendant might effect the settlement of your case.
Proving the existence of an unsafe condition and who is responsible, as well as the other issues I have identified is extremely dependent upon the specific facts of your case. Any lawyer will tell you a slight change in the facts in any of these areas of proof will result in a big difference in how your case is resolved.
It is human nature to want to discuss and compare your case with someone else who might have had what seems to be a similar injury or occurrence. I would urge you not to do this! You will never understand all of the facts of their case. It becomes a big mistake to compare how your case will turn out as compared to a friend’s case. This is true in any injury claim, but doubly so in an injury caused by a fall.