A New Jersey Personal Injury Lawyer

Slip and fall accidents are often dismissed as minor incidents. But while it’s true that many people walk away with little more than bruises, falls also have the potential to cause serious injuries. In fact, according to the Center for Disease Control and Prevention (“CDC”), falls account for over 8 million emergency room visits per year, making it the number one cause of nonfatal hospital trips in the United States. It’s not uncommon for slip and fall victims to end up with significant medical bills and other expenses, as well as lost wages from being unable to work.

If you were injured in a slip and fall accident on someone else’s property, the property owner may be responsible for your losses. This guide will help you better understand your rights and how slip and fall claims work. But keep in mind that your ability to get compensation will depend on the specific facts of your case. For the best chances of recovering full and fair compensation, you should consult a New Jersey personal injury attorney.

Slip and fall accidents overview

Slip and fall accidents can happen for many reasons, such as:

• Wet or slippery floors and stairs (due to spills, leaks, wax, etc.)
• Broken, cracked, or uneven flooring and walkways
• Loose, bulging, worn, or damaged carpets, rugs, or mats
• Ice or snow on walkways and parking lots
• Broken or insufficient lighting
• Broken railings and staircases
• Potholes or cracks in parking lots or garages
• Debris, trash, or other objects creating a hazard

However, simply falling on someone else’s property does not necessarily mean that the owner is responsible for your injuries. To win a slip and fall case, you have to prove four “elements”:

1. The owner owed a “duty of care” to you (in other words, they had a legal obligation to protect you from unreasonable risk of harm on their property);
2. The owner breached their duty of care;
3. That breach caused your injuries; and
4. As a result of your injuries, you experienced losses (or “damages”).

The nature of a property owner’s duty of care in a slip and fall case relies heavily on the relationship between the property owner and the injured individual. The highest duty of care is owed to business visitors (or “invitees”). The duty owed to those on the property with consent, including social guests (called “licensees”), is more limited. And the duty owed to trespassers is minimal.

While the relationship between the parties is important, it’s not the only relevant factor in a slip and fall case. New Jersey courts will also look at the totality of circumstances. For more information about the elements of a successful slip and fall accident case, see Elements of a Slip and Fall Claim.

Falls on public transportation or government-owned property

Many slip and fall accidents occur on public transportation or government-owned property, such as:

• Train or bus station platforms and stairs
• Government buildings
• Public parks and other public spaces

These cases involve special issues and strict procedural requirements, so it’s especially important to consult a lawyer promptly after your accident. For example, if you’re filing a claim against a government entity, you generally have to file a notice of claim within 90 days of the accident. If you were injured on property owned by the Port Authority of New York and New Jersey, you have to file your lawsuit within one year of the accident and also file a notice of claim at least 60 days before filing the lawsuit. If you miss these deadlines, you may not be able to recover compensation, even if your case is otherwise strong.

Slip and falls while at work — workers’ compensation

If you were injured in a slip and fall accident while at work, your injuries will usually be subject to workers’ compensation laws. This means that instead of filing a personal injury lawsuit, you’ll pursue benefits under your employer’s workers’ compensation insurance. If your employer engaged in intentional misconduct, you may also be able to file a lawsuit.

Even if you’re only filing a workers’ compensation claim, consulting an attorney is often still a good idea. If your injuries require extensive medical treatment or long periods off from work, the insurance company may resist paying out benefits. Your attorney can help make sure you get the workers’ compensation benefits that you’re entitled to.

Note that workers’ compensation insurance only covers employees — not “independent contractors.” If you’re issued a W-2, it means the business has classified you as an employee. If you’re issued a 1099, the business has classified you as an independent contractor.

However, sometimes businesses misclassify employees as independent contractors, whether intentionally or unintentionally. An attorney can help you confirm your proper classification and pursue compensation from the appropriate source — either through workers’ compensation or from the property owner and/or their insurer.

If you’re concerned about how your employer might react if you seek workers’ compensation, New Jersey law specifically prohibits retaliation against employees for pursuing, inquiring about, or exercising rights under the workers’ compensation statute. This means your employer may not fire you, harass you, or otherwise discriminate against you for pursuing workers’ compensation. If your employer does retaliate, they may be subject to fines or even jail time. You would also have grounds for a retaliation lawsuit against them. If you experience any problems, you should keep detailed records and consult an attorney.

Finally, even though you may be barred from suing your employer due to workers’ compensation laws, there may still be the potential for a third-party claim. For example, if you tripped at work and fell as the result of defective flooring that was installed by a contractor, you could bring a lawsuit against that contractor because that entity is not your employer. An attorney can investigate the claim and help you determine whether a third party lawsuit is proper.

Common types of injuries

Slip and fall accidents can result in a wide range of injuries. Examples of common slip and fall injuries include:

• Broken or fractured bones (the elderly are especially vulnerable to hip fractures)
• Cuts and abrasions
• Strained, sprained, or torn tendons, ligaments, and muscles
• Back injuries, such as herniated, bulging, or ruptured discs
• Spinal cord injuries, including paralysis
• Head and traumatic brain injuries, such as skull fractures, concussions, and hemorrhaging
• Neck and shoulder injuries

Some of these injuries are minor and heal quickly, but others can have a significant impact on your life, either temporarily or permanently. For example, you may need to undergo surgery, rehabilitation, physical therapy, or other prolonged medical treatment. Injuries may also interfere with your ability to perform ordinary tasks, work, or care for your family.

Calculating all of your economic and non-economic losses resulting from a slip and fall is not easy to do on your own. This is another reason why it’s important to engage an experienced attorney. Your attorney will work with the appropriate medical experts to determine the full extent of your losses and help you pursue the right amount of compensation.

Case Study: $300,001

What makes this case unique:Unusual character, personality, and background of the client, as well as his connection to a saintly rabbi

Read The Case Study

What to do if you’ve had a slip and fall accident

After a slip and fall accident, many people simply try to brush it off and move on. But even if your fall doesn’t seem that serious, it’s important to take the steps below as soon as possible. Waiting too long to act after an accident can severely impact your ability to get compensation.

Finding an Attorney for Your Case

Having an attorney on your side can significantly increase your chances of getting a favorable outcome in your case. When navigating the insurance and legal systems, there are many opportunities to make mistakes that could hurt your ability to get compensation. Insurers may also take advantage of your inexperience and offer you less than you deserve. They may even try to deny your claim completely.

By working with an attorney, you’ll have someone experienced on your side to manage the entire process and advocate for your best interests. In particular, your attorney will:

• help you understand your rights and options;
• investigate your case and identify all legally responsible parties;
• establish the potential value of your claim;
• handle all communications and negotiations with third parties, including the insurance company;
• gather evidence and interview witnesses;
• engage appropriate experts to support your case; and
• navigate complicated court procedures and legal requirements.

While it may be tempting to put off finding an attorney until you’ve recovered, waiting too long to get help can hurt your case. Important evidence may be lost soon after an accident. There are also strict deadlines for filing a claim, and building a case can take more time than you think. By getting the help of an attorney immediately, you’ll be in a much better position to meet all legal deadlines and gather the strongest possible evidence to support your case.

What to bring to a legal consultation

When meeting with a potential attorney, you should bring any evidence you have with you. This may include:

• medical records (bills, diagnoses, MRI/CT/test results, etc.)
• photos or videos of the accident scene and/or your injuries
• any contact information you have for the property owner, their insurer, and any witnesses
• the incident report, if there was one
• your own written account of what happened before, during, and after the accident
• any other relevant information or documents

All of this will help the lawyer better understand what happened. If they believe they can help you and you decide to work together, a more thorough investigation will be conducted on your behalf.

What to look for in an attorney

The quality of your attorney will affect the success of your case, so you should choose one carefully. Here are a few things to look for when hiring a slip and fall accident lawyer:

When choosing a lawyer, you should also be wary of any attorney who claims they can get you money fast. While getting compensation quickly sounds great, especially if you’re facing medical bills or you’re unable to work, this may not be in your best interest.

A lawyer who says they can resolve a case quickly isn’t necessarily a good lawyer. And a case taking several years, like many personal injury cases do, doesn’t mean that the attorney is bad. In fact, the best way to ensure maximum compensation is to thoroughly prepare and negotiate a case.

Unfortunately, there are many law firms who are more interested in quick payouts than getting maximum compensation. Instead of aggressively advocating on your behalf, they quickly resolve cases for smaller amounts. The smaller amounts are acceptable to these law firms because they can make up the fees by taking on a larger volume of cases. But that only benefits them, and not you, as the client. If you come across a law firm that settles a lot of cases quickly, you should consider it a red flag.

Looking for the best slip and fall accident lawyer in New Jersey?

At Rosenblum Law, we understand the pain and stress a slip and fall accident can cause in your life. We’ll thoroughly evaluate your situation and determine the best course of action for your particular circumstances. If we’re able to take on your case, we’ll guide you through the entire process and fight on your behalf for maximum compensation. We also have relationships with medical experts who we can bring on to support your case if needed.

In addition, if we’re not the right law firm for you, we provide guidance in selecting a law firm for your case. We have a large network with dozens of law firms that we have pre-screened to ensure that you will get the best law firm for your specific case.

For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.

Elements of a Slip and Fall Claim

As noted in the introduction, simply falling on someone else’s property doesn’t necessarily mean you’re entitled to compensation. The first step in pursuing a slip and fall claim is identifying the proper defendants. You’ll then have to prove four elements: duty, breach, causation, and damages, each of which are described in more detail below. Insurance companies will also look at these elements when evaluating a claim.

Like many personal injury cases, building a slip and fall case can become complicated quickly. To help ensure you’re presenting your case in the strongest way possible, you should get the help of an experienced slip and fall accident attorney.

Identifying responsible parties

Property owners are usually the defendants in a slip and fall case, as they are often in the best position to keep the property in safe condition. However, sometimes third parties may also be liable if they were responsible for the conditions of the property. Other potential defendants may include:

• property managers or caretakers
• individuals or entities leasing the property from the owner
• repair companies
• maintenance companies
• landscaping companies

Keep in mind that different individuals or entities may be responsible for maintaining different parts of a property. Your attorney will help thoroughly investigate and identify all the responsible parties in your case.

Duty

Once you’ve identified the party or parties responsible for the property, you have to prove they owed a duty to you. The specific nature of a property owner’s duty to an individual on their property often depends on the relationship between the owner and that individual.

Business invitees

A business invitee is someone who’s on the property for business purposes that benefit the owner, such as the purchase of goods or provision of services. Invitees get the most protection under the law. Owners must keep their property in safe condition for invitees by regularly inspecting their property for potentially dangerous conditions, putting up adequate warnings about any dangers, and correcting dangerous conditions in a reasonable time.

In the New Jersey case of Lippincott v. Briel, for example, the plaintiff was a home health aide working at the home of the defendant. After finishing her shift at 8 a.m., she slipped and fell on snow and ice in the driveway. The trial court judge found that the owners didn’t have a duty to shovel their driveway or provide a warning for such an obvious condition prior to the plaintiff leaving, and as a result, ruled in favor of the defendant without a full trial.

On appeal, however, the Appellate Division court reversed that decision. In doing so, the court noted that the defendants had a duty to the plaintiff, as a business invitee, to keep the property safe. That duty required conducting a reasonable inspection to discover and correct dangerous conditions, or at least warning the invitee of the dangerous condition. The court also held that whether the defendants breached that duty was a question for the jury, which should take all relevant circumstances into consideration.

Licensees

Licensees are individuals who enter a property for their own amusement with the consent of the owner, including social guests. In this case, if the owners are aware of a dangerous condition on the property, they have to make it reasonably safe or provide a warning. However, the owners are not required to inspect their property for hidden dangers.

As an example, in Andiorio v. Andiorio, the plaintiff went to the home of her son and daughter-in-law (the defendants) to pick up her grandchildren and take them to the zoo. While at the home, the plaintiff decided to enter the home to fill up the family dog’s water bowl. While doing so, she tripped over a vacuum hose and fell.

The trial court found that because the plaintiff was a social guest, the defendants only had a limited duty to warn of dangerous conditions of which they had actual knowledge and of which the plaintiff was unaware. There was no evidence the defendants knew the vacuum was in that position, or that the plaintiff would be in the house at that particular time. The condition was also open and obvious. The plaintiff didn’t see it because she was looking at the water bowl. As a result, the case was dismissed, which was affirmed on appeal.

Trespassers

Trespassers are individuals who enter a property without the owner’s permission. They get the least amount of protection under the law. Owners generally only have a duty to 1) refrain from intentional acts that cause injury and 2) warn trespassers of artificial conditions that post a risk of death or serious bodily injury if the owner knows or should know that there is or may be a trespasser on the property.

In McNaboe v. Horizon Diner, for example, the plaintiff went to a Houlihan’s restaurant in New Jersey. Because Houlihan’s parking lot was full, he parked in a Pathmark Supermarket parking lot and crossed Horizon Diner’s parking lot to get to Houlihan’s. The plaintiff was aware that the diner parking lot was for customers only, and there were signs indicating this. While crossing the diner’s parking lot after leaving Houlihan’s, he slipped and fell on snow and ice.

The trial court found that the plaintiff was a trespasser and that the diner did not breach its minimal duty of care to him. The appeals court agreed, noting that there was no evidence that the diner had notice of any risks posed by its parking lot or that Houlihan’s customers used its lot as a pedestrian shortcut.

The general duty of care that applies to trespassers is also subject to the attractive nuisance doctrine. Under the attractive nuisance doctrine, owners have a duty to eliminate dangers or provide safeguards if there are artificial conditions on the property that would foreseeably attract a child, such as a pool, a mound of sand, or playground equipment. If they fail to do so, they may be liable for any injuries sustained by a trespassing child.

Totality of circumstances

Although the relationship between the parties is a critical part of any slip and fall case, it’s not the only factor that courts will consider. In New Jersey, courts will also look at all the circumstances, including:

• the nature of the risk;
• the opportunity and ability to exercise care; and
• public interest in the proposed solution.

This is a very fact-specific analysis that’s designed to reach fair conclusions and generate sensible rules for future conduct.

For example, in Hopkins v. Fox & Lazo Realtors, the plaintiff tripped and fell on a camouflaged step while attending an open house hosted by the defendant real estate broker. The court concluded that the plaintiff was most likely a business invitee of the broker due to the economic interest of the broker. Even so, the court looked at the totality of circumstances and limited the duty of the broker. Specifically, the court held that the broker only had a duty to inspect the property for purposes of the sale and to warn of any reasonably discoverable dangerous conditions — but only if that inspection would be consistent with customary responsibilities of a realtor holding an open house.

Breach

As reflected in the cases described above, once you’ve established duty, you then have to show that the defendant breached their duty of care. The key question is if the defendant did something they shouldn’t have — or if they failed to do something they should have. If they behaved unreasonably (or “negligently”), they are legally liable for any injury or harm that resulted.

In a slip and fall case, this generally means you must show:

• a dangerous condition existed;
• the owner knew or reasonably should have known about the dangerous condition;
• the owner failed to eliminate the dangerous condition or at least warn you; and
• the owner had sufficient time to find and eliminate the dangerous condition or warn you of its existence.

Certain building code violations may help you establish a breach of duty, but it’s not required. In many cases, a property owner can be found negligent even if they didn’t violate a law.

In addition, sometimes negligence may be inferred. For example, in Nisivoccia v. Glass Gardens, Inc., a New Jersey grocery store customer slipped on loose grapes on the floor near the checkout area and fell. She sued the store, and the trial court directed a verdict in favor of the defendant, as there was no evidence about how the grapes got on the floor or how long they’d been there. In other words, there was no evidence the store knew or should have known about the grapes. The Appellate Division court affirmed the trial court decision.

On appeal, however, the New Jersey Supreme Court held that the plaintiff was entitled to an inference of negligence under the “mode-of-operation” rule. The mode-of-operation rule generally only applies in settings such as self-service, in which it’s reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees (such as customers handling grapes).

When negligence is inferred under the mode-of-operation rule, the plaintiff doesn’t have to show evidence that the defendant knew or should have known about the dangerous condition that caused the accident. To avoid liability, it’s up to the defendant to show evidence of due care.

The mode-of-operation rule was applied in Nisivoccia because the store should have anticipated that careless handling of the grapes was reasonably likely during checkout and would create a hazardous condition. As a result, negligence was inferred and the burden shifted to the grocery store to provide evidence that they were not negligent.

Causation

Once you’ve established a breach of duty, you’ll also have to show that the breach caused your injuries. In other words, you have to show that if it weren’t for the defendants’ actions (or failure to act), you wouldn’t have been injured. While this may seem straightforward, some defendants may argue that even if they behaved unreasonably, your injuries were actually pre-existing or caused by something else.

For example, in Kozma v. Starbucks Coffee Co., a customer fell after leaving a Starbucks. He had pre-existing knee problems from a previous injury, but claimed that he sustained additional injuries when he fell. The defense presented expert evidence that the plaintiff’s symptoms were consistent with his pre-existing conditions and that the fall did not do any further damage or aggravate his condition. Although the jury found the plaintiff 40% at fault and Starbucks 60% at fault for the fall, they declined to award any damages based on this evidence, which was upheld on appeal.

Damages

The last element of a slip and fall claim is establishing the damages you suffered as a result of the defendant’s breach of duty. The compensation you seek may include economic damages, such as medical bills and lost wages, and non-economic damages, such as pain and suffering. New Jersey also allows punitive damages of up to five times the amount of compensatory damages or $350,000, whichever is greater. However, punitive damages are rare, as they’re intended to punish defendants for especially egregious conduct.

Your attorney will help you determine the amount of compensation to seek and negotiate with the property owner and their insurer to reach a fair settlement. If your case goes to trial, the judge or jury will decide whether or not you’ve sufficiently proved that the defendants were responsible for your injuries, and, if so, the amount of damages. If certain legal requirements are not met during the process, the judge may dismiss the case.

Pursuing Compensation

If there’s support for a slip and fall claim, the first step to getting compensation is trying to negotiate a settlement with the property owner’s insurance company. If that’s not possible, the next step would be to file a personal injury lawsuit.

If a property owner doesn’t have insurance, you may be able to sue them directly. However, this may only make sense if the owner has sufficient assets that you could recover if you win. An attorney can explain your options and help you devise the best course of action for getting maximum compensation. Below is more information about what to expect when pursuing compensation in a slip and fall accident case.

Dealing with insurance companies

Whenever you interact with an insurance company, you should keep in mind that their goal is not to give you the compensation that you deserve. Instead, it’s to protect their financial interests and pay out as little as possible. This means you should not rely on them to explain your rights, give you advice, or offer an appropriate amount of money for your losses.

No matter how friendly or sympathetic the insurance adjuster may be, they’ll be searching for ways to reduce their liability or even deny your claim. They deal with insurance claims on a daily basis, so they’re often skilled at uncovering information they can use against you. Without the right experience or knowing what to look out for, it’s easy to fall into a trap or accidently say something that could damage your claim.

To help make sure you don’t make mistakes that harm your ability to get compensation, you should have your attorney handle all communications on your behalf. Your attorney will know what to look for and have the skills to properly negotiate a claim. You shouldn’t give details, sign any releases or other forms, or accept any offers until you’ve consulted your attorney. If the insurer refuses to provide an appropriate settlement, your lawyer can also file a lawsuit on your behalf.

Statute of limitations

Under New Jersey’s statute of limitations, you generally only have two years from the date of a slip and fall accident to file a personal injury lawsuit. Although this seems like plenty of time, acting quickly is important for a number of reasons.

First, the strongest evidence in a slip and fall case may disappear quickly after the accident. To preserve evidence of the dangerous condition that caused your fall, such as photos and security camera footage, you should act quickly. In addition, the sooner you act, the more likely you’ll be able to find and speak to witnesses that were present at the scene.

Second, investigating the accident, building a case, and conducting negotiations can take longer than you might expect. The property owner’s insurance may even intentionally draw out the process. To make sure you have plenty of time for your attorney to investigate and prepare your case, you should get started long before the statute of limitations lapses.

And third, in some cases there are shorter deadlines. For example, if you’re filing a claim against a government entity, you generally have to file a notice of claim within 90 days of the accident. If you were injured on property of the Port Authority of New York and New Jersey, you only have one year to file your lawsuit and have to file a notice of claim at least 60 days before filing that lawsuit.

If the statute of limitations lapses, you’ll no longer be able to seek compensation in a lawsuit unless a rare exception applies to your case. To make sure you don’t miss any deadlines and are able to build the strongest case possible, you should contact an attorney immediately. However, even if you think you’ve already missed a deadline, it’s worth speaking to a lawyer to confirm whether an exception applies to your case.

Valuing a slip and fall case

The amount of compensation you can receive for a slip and fall accident depends on your particular injuries and their impact on your life — both now and in the future. This means that you’ll usually have to reach “maximum medical improvement” before you can properly value your case. In other words, you’ll have to recover completely, or as fully as you’re likely to. This will allow you to take into account all past and expected future treatment and any other ongoing impact your injuries will have on your life.

An experienced slip and fall attorney, with the help of medical experts, will be able to calculate the appropriate amount to seek in your case. If your case goes to trial, the judge or jury will ultimately decide how much to award based on the evidence. Damages can fall into three categories:

Pursuing a claim against a friend or relative

As noted earlier, as a social guest on someone else’s property you’re considered a “licensee.” This means that if the owners are aware of a dangerous condition on the property, they have to make it reasonably safe or warn you of its existence. However, the owners are not required to inspect their property for hidden dangers.

If a friend or relative breached their duty of care to you while you were visiting their home, you may be concerned about how suing them would affect your relationship. But if you’ve suffered injuries because of someone else’s negligence, you’re likely facing medical bills and other expenses and losses. Getting compensation for your injuries is an important part of being able to move on with your life. And the good news is, in this scenario you likely wouldn’t have to sue your friend or family member directly. Instead, their homeowners insurance company would usually be on the hook for defending the claim and paying out your damages.

If your relative or friend doesn’t have insurance, recovering compensation does become a little more complicated. But either way, before you decide not to sue, it’s worth getting a free consultation with an attorney first. Your attorney can advise you on all the factors to consider and help you identify the best path forward.

Evidence in a slip and fall accident case

When building a slip and fall case, you’ll generally need to gather evidence that shows:

• the existence of the dangerous condition that caused your fall;
• that the owner knew or should have known about the dangerous condition; and
• the extent of your injuries and other losses as a result of the fall.

Such evidence may include:

• Photos and/or video of the property, including security camera footage
• Witness testimony
• Safety, maintenance, and inspection records
• Medical records documenting the extent of your injuries
• Proof of economic losses such as bills, lost wages, other accident-related expenses

Medical expert testimony that links your injuries to the fall and explains the impact of your injuries on your life may also play a major role in your case. When choosing a lawyer, you should look for someone who has access to highly qualified medical experts. The defendants will have their own experts testifying on their behalf, and having the right experts on your side can make a big difference in the outcome of your case. The more qualified the expert, the more likely the judge or jury will believe them at trial.

It’s also important to engage a lawyer right away. Valuable evidence can disappear quickly after an accident, and as more time passes, witnesses may forget key details. There are also strict time limits for filing claims. Your attorney will be able to help you collect the right evidence and build the strongest case possible.

Common defenses

When pursuing a slip and fall case, the property owner and their insurer will likely assert defenses that could help them reduce or avoid liability. Which defenses an owner will raise will depend on the circumstances surrounding your fall, but below are a few common defenses in slip and fall cases.

The “modified comparative negligence” rule

Sometimes, more than one person or entity is responsible for an accident. When this happens, New Jersey applies its “modified comparative negligence” rule. Under this rule, if you’re found partially at fault, your damages will be reduced by the percentage of your fault, up to 50%. If you’re found more than 50% at fault, you won’t be able to recover anything at all.

For example, if you have $100,000 in damages, and you’re found 30% at fault, you would only receive 70% of the damages, or $70,000. If you were found to be 51% at fault for the slip and fall accident, you’d get nothing.

In a slip and fall case, this means the defendant may argue that you were partly or entirely at fault for your fall. Negligent behavior of a plaintiff in a slip and fall case may include:

• Running, skipping, or jumping where such activities aren’t expected or appropriate
• Walking while distracted, such as texting or talking on the phone
• Failing to use available safety features, such as handrails
• Wearing inappropriate footwear under the circumstances

If you go through trial, the judge or jury will decide how to allocate fault. But even during settlement negotiations, insurance companies will use the modified comparative negligence rule when evaluating your case.

Assigning fault in an accident isn’t an exact science. So although you should be aware of the modified comparative negligence rule, you should not make any assumptions about how fault will be assigned in your case. Instead, consult an attorney as soon as possible. Your attorney will be able to analyze all available evidence with the help of experts and make sure fault is properly assigned.

“Open and obvious” conditions

Another common defense is that the dangerous condition was “open and obvious.” When a defendant asserts this defense, they’re arguing that you should have noticed the condition and understood the danger it presented.

For example, in Hackett v. Somerset Executive Square, a technician had to climb a fixed ladder through a small opening in the ceiling to perform HVAC work. He struggled to get through the opening earlier in the day, and the third time he went through, he hit his head, resulting in injuries. He sued the property owner, claiming that the small opening was a dangerous condition. The trial judge found that the condition was open and obvious, and therefore the defendant had no duty to warn him of the condition. The case was therefore dismissed and later affirmed on appeal.

Insufficient notice

Winning a slip and fall case often requires showing that the property owner knew or should have known about the dangerous condition that caused your fall. If the condition didn’t exist long enough for the owner to have notice of the condition, they can avoid liability. As a result, defendants in a slip and fall case may claim that they had no way of knowing about the dangerous condition at the time you fell.

For example, if you slip on a spill on a grocery store floor, the store may argue that they did not have reasonable time to find the spill and clean it up. Evidence such as security footage, witness testimony, and internal business records (such as cleaning policies and schedules) can be helpful in proving that an owner had sufficient notice to address the problem.

Procedural defenses

Other common defenses are procedural in nature. For example, the defendant may argue that the statute of limitations may have lapsed, or in the case of a government entity, that you missed the deadline for filing a notice of claim. See “Statute of Limitations” above.

Another common defense is that you identified the wrong party as the defendant. Identifying the appropriate defendant is sometimes tricky. (See Elements of a Slip and Fall Claim — Identifying responsible parties.) If you sue the wrong party, you can refile a complaint against the right defendant if you still have time under the statute of limitations. In the case of government entities, this may present problems since the notice of claim period is relatively short.

The litigation process

If you and your attorney decide to proceed with a personal injury lawsuit, below is an overview of what you can expect. While this may seem intimidating, your attorney will manage the entire process on your behalf and guide you every step of the way.

The amount of time it takes to go through the litigation process varies from case to case. It will depend on how complicated your case is, how busy the court is, and how willing the parties are to cooperate and negotiate. Many slip and fall cases settle at some point during the process, but if a case goes through a full trial, it can take several years to resolve.

Settlements and mediation

Throughout the entire legal process, your attorney will negotiate with the other side to try to resolve the case out of court. Resolving a case out of court is called a “settlement.”

A settlement may be reached through direct negotiations, or the parties may agree to mediation. Mediation is a proceeding where a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. Mediators are often retired judges, attorneys, or other court personnel.

There are no set rules for mediation. Instead, it’s usually guided by the mediator’s own style and method. The mediator will listen to both sides and make sure everyone gets a chance to tell their story and ask questions. The idea is that this process will help both sides come to an understanding and fair compromise. Of course, sometimes that isn’t possible. If you can’t reach a compromise through mediation, you can still proceed with your case in court.

Both sides to a lawsuit usually prefer to settle, because it helps avoid the lengthy, expensive, and uncertain trial process. But defendants and their insurers also want to pay out as little as possible, and sometimes they may not offer a fair settlement. It’s best not to rush settlement negotiations. In general, the faster you settle, the lower the settlement amount. Settlement offers early in the process are usually for much less than your case is truly worth.

You should also never accept a settlement offer until you’ve consulted with an attorney. Once you accept a settlement, you give up your rights to pursue the claim any further. Your attorney will review all evidence and engage the right experts to confirm a fair value for your case. They’ll also conduct settlement negotiations on your behalf. If your attorney can’t reach a fair settlement, they should be prepared and willing to go to trial.

Frequently Asked Questions

If you or a loved one has been injured in a slip and fall accident, you likely have a lot of questions about your case. Below are answers to some common questions we receive about slip and fall accidents in New Jersey. But keep in mind that every case is different. If you’d like to discuss the specifics of your case, you should contact a New Jersey slip and fall accident attorney.

Other Information