YOU’VE FALLEN AND YOU CAN’T GET UP!

By–Jack McDermott, Esq.

In the practice of law we call these kinds of accidents “slip and falls.” But that is really a misnomer. You may have slipped. Tripped. Stepped into a pothole. Lost your balance on an uneven walking surface or slippery substance. You may have failed to see a hazard because of poor lighting or an inadequate warning, or because you were distracted by a display of products. Whatever. The point is: you were lawfully on someone else’s property and you were caused to fall and injure yourself due to a negligent condition.

Now you find yourself on the ground, injured and in pain, perhaps disabled. You may require a trip by ambulance to the hospital, visits to a doctor, surgery. You may be facing a period of enforced bedrest, inactivity, unemployment. Your ability to enjoy different activities may be altered or even ended. Your plans for the future may have to change. Your life may never be the same.

This circumstance is upsetting. It feels unfair. You were not at fault. You were not careless.

The actions that you take in the minutes and hours and days after this “slip and fall” accident may be the most important in your life. You deserve compensation. You deserve to be “made whole.” But in order to get this compensation you must gather information; what lawyers call “proofs.” Unfortunately, as an ordinary person with a busy schedule, family commitments, job demands, a rent or mortgage payment, credit card bills, and now an undiagnosed injury, you are ill-equipped to protect yourself at this critical time.

Your first reaction might be: What’s the problem? I fell and I was hurt and it wasn’t my fault. I deserve to be compensated. Yes, but in this situation, you as the injured party are responsible to prove many things in order to receive a fair remedy. In particular, you must convince either an insurance company or a jury of your peers of the rightness and fairness of your claim. We lawyers call this process the “burden of proof.” And it can truly be a burden if the evaluation and preparation of your claim is mishandled by someone who is not experienced.

What are the issues? Well, the easy answer is: proving liability and damages. But these issues can be more nuanced and complicated than you might initially think. Liability means proving that someone else’s negligence caused your accident. Sounds easy, right? Maybe not.

Earlier, when we discussed the many ways a careful person could be caused to fall down, there was a common theme present in all the scenarios: there was a dangerous condition present at the scene of the accident that you failed to fully appreciate despite being careful. In other words, you failed to see this condition before the accident. So the first order of business in evaluating a slip and fall case is to discover what you failed to see. This process may be as simple as finding a banana peel beneath the sole of your shoe or a puddle of floor wax seeping into the seat of your pants. But it can also be so complicated that the scene of the accident must be evaluated by engineers and scientific experts in fields such as construction, human factors, lighting, maintenance and housekeeping.

This issue can also be complicated by the status of the person who caused the condition; i.e. the person who dropped the banana peel or left the puddle of wax on the floor, for example. Was the creator of the condition an employee of the store or a fellow customer? If a fellow customer dropped a banana peel and you slipped on it, how are you going to identify the customer who dropped it? Are there witnesses or CCTV footage?

And how could you be expected to identify, in your injured state, the business entities (corporations, partnerships, LLC’s) who will become the ultimate defendants, the responsible parties? Who owns the property? Who owns the store? Is there a separate company responsible for a critical service; say maintenance, security, lighting or snow removal? None of these identities will be evident without an expert investigation.

Your first thought will be the the need for medical treatment. What is my injury? How serious is it? And that is understandable. But your second thought should be: I’m in danger here. I need expert help. Who can I trust? Who can I call?

The team of attorneys at Maggs McDermott & DiCicco have handled the evaluation, preparation, settlement and trial of hundreds of “slip and fall” cases. We are always just a phone call away.

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