Learn how insurance companies use shared negligence laws to avoid payment. Here’s how you can prove the slip and fall was not your fault.
Many slip and falls are caused by a business or property owner’s failure to address a hazardous condition on the premises.
When you’re injured because of a property owner’s negligence, you have the right to pursue compensation, usually through their homeowners’ or business liability insurance.
Sometimes, the victim and the property owner share the blame for a slip and fall accident. Often in these cases, the insurance adjuster wrongly tries to shift all of the blame to the victim to avoid paying the full value of their slip and fall claim.
There are ways for injury victims to overcome allegations of shared blame and get the compensation they deserve. Here’s what you need to know to prove the slip and fall accident was not all your fault.
Shared Negligence for Slip and Falls
Negligence means that a party did something wrong or failed to do the right thing. This is important in premises liability claims because you have to prove that the property owner or manager acted negligently, which resulted in your injuries.
Shared negligence can be used by a property owner or insurance adjuster to challenge your injury claim. They will assert that you were either totally at fault for your slip and fall accident or shared some portion of the blame for it.
The injured person has the burden of proving fault. They must prove the business owner knew, or should have known of an unsafe condition but failed to take reasonable steps to fix it. You must further prove that you shared no fault for causing your injury.
For example, let’s say you slipped on a store’s icy sidewalk when wearing a pair of worn shoes with no traction. If you file an injury claim, the adjuster may try to deny your claim because you helped cause your own accident by wearing the worn shoes. You must prove the shoes you were wearing were appropriate for the conditions, and that you would not have fallen but for the store’s negligence in not clearing the walk.
Comparative Negligence Laws
Most states in the U.S. have a system of comparative negligence laws which apply to all types of injury claims. These laws say that even though injury victims may have helped cause an accident, they can still receive compensation from the other at-fault party, depending on the percentage of shared fault.
In the icy sidewalk example, an adjuster might say that you were 10 percent to blame for causing the slip and fall. If your claim is worth $10,000, the adjuster would offer $9,000 in compensation.
But what if the adjuster says you were 60 percent to blame for wearing worn shoes in icy weather? In most states, you have no right to compensation if you’re equally or more at fault than the property owner.
Your potential compensation is at stake, so don’t let the insurance adjuster have the last word. You don’t have to accept their decision on your percentage of fault.
Among the states with comparative negligence laws, there are different rules that affect how much compensation you can expect if a slip and fall accident was partly your fault.
Pure Comparative Fault
There are only ten pure comparative fault states, including California, Florida, and New York. Pure comparative fault laws say that slip and fall victims can receive payments for their losses even if they were mostly to blame, and the property owner was only a little bit negligent.
Example of Pure Comparative Fault
Lisa is in a rush and needs a few groceries. She enters a California grocery store and runs through the produce department. She is wearing flip-flops and shouting on her phone. Lisa soon trips and falls on a few grapes that dropped from a display table. She sprains her right ankle and suffers losses in the total amount of $10,000.
Lisa files an injury claim with the store’s insurer. She agrees with the adjuster that she was 75% to blame for the accident. They agree to settle her claim for $2,500.
Here, Lisa can still receive compensation even though she was mostly to blame for the accident.
Pure Contributory Fault
Four states and the District of Columbia still rely on harsh contributory negligence rules, where your claim can be denied if you contributed any amount of blame.
In pure contributory negligence states, if you’re as little as 1 percent to blame for the circumstances of your slip and fall, you would not receive a dime in compensation for your losses.
Modified Comparative Fault
Most states have modified comparative fault laws. Slip and fall victims are barred from compensation if their share of blame is equal to or more than the property owner’s share, depending on the state.
51 Percent Comparative Fault
States with the 51 percent rule say that victims can only recover payment for losses when they are less than 51 percent responsible for their injuries. The victims can be compensated if they were equally at fault.
50 Percent Comparative Fault
States with the 50 percent rule say that a slip and fall victim is only entitled to compensation if the property owner is more to blame than the victim. If the victim is equally or more to blame, they are barred from receiving compensation from the other at-fault party.
Example of Modified Comparative Fault
John is walking down the stairs of an Illinois department store while looking at his phone. As he gets near the base of the stairs, he trips and falls over a floor mat that somehow worked its way onto the staircase. John lands hard and suffers broken bones in his wrist and arm.
When he files an injury claim with the store’s insurance company, John agrees with the adjuster that he was 50 percent to blame for the accident.
If the claim settles, John can still receive compensation, but he’ll only get half of the claim’s value. John can receive payment because he was less than 51 percent to blame for his injury.
If John were in a 50 percent state like Colorado, then he’d receive no money for his injuries. His equal share of fault would bar his right to any compensation for his damages.
Fighting Back When They Blame You
One common way insurers fight or deny slip and fall claims is to shift the blame onto the injury victim. To counter these allegations, it helps to know the tactics adjusters use to shift blame.
The adjuster might contend that you:
- Didn’t watch where you were going
- Ignored warning signs
- Wore inappropriate footwear
- Entered a section of property that is off-limits to customers or visitors
- Were running or acting in an inappropriate manner
- Ignored an obviously dangerous condition
- Failed to seek appropriate medical attention following a fall
Any one of these positions could lead to a claim denial or a lowball settlement offer.
Countering Comparative Negligence Allegations
Claims adjusters look for ways to deny claims because it saves their employers money and helps the adjuster advance in the company.
If an adjuster states that you weren’t watching where you were going, you’ll have to prove that you were. Likewise, if they say you were wearing inappropriate footwear, you’ll want to demonstrate that your footwear had no bearing on the situation.
If you have to admit some percentage of fault, it comes down to the allocation. Know your state’s comparative negligence laws, and don’t let the adjuster have the last word on your share of blame. It could cost you any chance at compensation.
Mitigating Your Damages
Injured victims have a duty to mitigate their damages. This means they have to take appropriate actions to reduce their injuries or losses.
The duty to mitigate typically means that you sought medical care after your slip and fall, listened to your doctor’s advice, and followed up with recommended treatment (like physical therapy).
Adjusters like to say victims were responsible for their injuries because they didn’t mitigate their damages. You’ll want to prove to the insurer that you took reasonable steps to help minimize your losses.
Document your mitigation efforts with:
- Medical bills and records
- Written statements from medical care providers
- Letters from your employer evidencing any light work duties
- Journal entries detailing missed events or activities during your recovery
If the adjuster asserts that you made your injuries worse, you’ll need to respond. If you followed all of your doctor’s instructions, say so and show your evidence.
If your doctor ordered you to stay off your feet for two weeks, but there’s a video on social media of you dancing at a wedding three days after your slip and fall, it will be hard to prove you’re still entitled to injury compensation.
Cases Involving Open and Obvious Hazards
Many insurance companies like to allege comparative negligence by saying that any dangerous condition on a property was “open and obvious.” The argument here is that since the condition was so obvious, any reasonable person should have recognized it and taken appropriate precautions.
There is an important exception in these circumstances. The exception applies when you were distracted and didn’t see the open and obvious hazard. You’ll need to show that your distraction was something the property owner could have foreseen.
If you can prove you didn’t see the hazard, then the “open and obvious” argument goes away.
Slip and Fall Case Example: Victim Not At Fault on Appeal
In October 2009, Steven Henderson slipped and fell on his condominium building entryway stoop and stairs. It was raining before and at the time of the accident. Henderson suffered severe injuries to his left ankle and knee, which required multiple surgeries.
In the year before Henderson’s fall, the condo’s property manager hired a company to maintain the building’s common areas, including the stairs and stoop. The maintenance company applied a concrete epoxy sealant to the stoop and stairs, which made the stairs slippery when wet. Henderson admitted that he slipped twice on the steps in the prior year, and said that complaints were made to the condo property manager.
Through his attorney, Henderson filed an injury lawsuit against the condo building owner, the property manager, and the maintenance company that applied the epoxy.
Lawyers for the defendants requested that the judge dismiss the case since the stairs presented an “open and obvious risk” that Henderson was well aware of. The defendants argued they had no duty to protect Henderson from an open and obvious risk.
Henderson’s attorney argued that the “open and obvious risk” defense did not apply when a reasonable person might be distracted or forget about the potential hazard. In this case, Henderson was coming home at night in the rain, and wasn’t thinking about the slippery steps as he was heading up the stairs to get to his residence.
The trial judge ruled in favor of the defendants and dismissed the case.
Henderson and his attorney appealed the lower court’s decision to the Illinois Supreme Court.
The appellate court ultimately agreed with Henderson and sided with his distraction claim. The court said that both time and weather conditions worked to cause Henderson to not be thinking about the potentially slippery steps.
The court also stated that the defendants did owe a duty of care and “it was reasonably foreseeable and sufficiently likely that a resident in Henderson’s circumstances would suffer injury from the slippery-when-wet condition…”
The appellate court sent the case back to the trial court for further proceedings.
Evidence the Slip and Fall Wasn’t Your Fault
If an insurance adjuster says you were partly to blame for your injuries, you can’t just sit back and say that you weren’t responsible. You have to back up your assertions with concrete slip and fall evidence that shows you didn’t contribute to your injuries.
If a claims adjuster does say you helped cause your injuries, listen to the basis for their opinion. Then review any evidence relating to that basis.
If you find something that helps limit your fault, then present that evidence to the adjuster. If you find something that increases the property owner’s fault, then highlight that evidence as well. When negotiating a slip and fall claim without a lawyer, you must be your own advocate.
Surveillance Videos
Film footage from security cameras is important because it shows the timing of events leading up to your accident. If there is a long delay between a hazardous condition and your fall, then the video can help show an owner knew, or should have known of the danger but did nothing about it.
Incident Reports
Incident reports are typically created by stores and other businesses when workers or visitors are injured on the property. These reports include specific details of an accident.
If previous slip and fall accident reports are similar to your case, you can use them to show that an owner was aware of an existing dangerous condition yet didn’t correct it.
Evidence of an Unsafe Condition
Evidence of an unsafe condition is usually easier to find than evidence showing that an owner had a duty to protect a customer or visitor.
Common unsafe conditions include:
- Broken stairs, handrails, or decks
- Cluttered common areas
- Tripping hazards
- Wet floors
- Potholes
- Damaged, unlighted, or icy sidewalks and parking lots
Physical evidence, like a broken handrail, can prove that a condition is unsafe. But a fall victim can also show a danger existed by using witness statements, photographs, and videos.
Try to collect evidence immediately after your slip and fall while you’re still at the scene. If you’re not physically able to do this, ask someone with you or a witness to help. If your injuries prevent you from gathering important evidence, return to the accident scene as soon as possible.
If you take photographs, note the date you took them and any differences, regarding the photo’s subject, between your accident date and the date of the picture.
Photograph anything related to the fall, such as:
- Weather conditions
- Your injury
- Your clothes and shoes
- The location of the accident
Use our free Slip and Fall Evidence Checklist to ensure you don’t overlook vital evidence.
Get Help in Cases of Shared Blame
Slip and fall cases get complicated when the property owner or their insurance company tries to pin the blame on you. If they get away with it, the insurance company will minimize or deny your injury claim.
Never apologize or admit fault after a slip and fall. And don’t let an adjuster manipulate you into accepting blame before you talk to an experienced personal injury attorney. Being distracted by a child or wearing certain footwear does not automatically mean you share the blame for your injuries.
A good slip and fall attorney will help you understand if you truly did contribute to your injuries. If it turns out that you are partly to blame, your attorney will make sure your allocation of fault is reasonable, so you can get fair compensation.
An attorney can use subpoenas and other legal tools to get vital evidence that you can’t get on your own, like surveillance camera footage, incident reports, and employee witness statements.
Most law firms provide free consultations to slip and fall victims. Personal injury lawyers typically work on a contingency fee basis, meaning you only pay legal fees when your case settles or you win a court award.
Don’t let an insurance company take away your money because you may have partially contributed to an accident. It costs nothing to ask an attorney how to prove the slip and fall was not your fault.