Table of Contents
- Finding an Attorney for Your Case
- Elements of a Slip and Fall Claim
- Pursuing Compensation
- Frequently Asked Questions
Slip and fall accidents overview
As noted by the New York State Department of Health, falls often “occur in predictable patterns, with recognizable risk factors.” Common causes of slip and falls include hazards 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, merely falling on someone’s property does not necessarily mean the property owner is legally responsible for your injuries. To win a slip and fall case, you have to prove four “elements”:
- The defendant owed a “duty of care” to you;
- The defendant breached their duty of care;
- That breach caused your injuries; and
- As a result of your injuries, you experienced losses (or “damages”).
Generally, property owners have a duty to keep their property in a “reasonably safe condition” for those who are foreseeably on their property. Failing to do so is considered a breach of their duty of care. What qualifies as “reasonably safe” is determined on a case-by-case basis. An attorney can help you determine whether you have a viable slip and fall claim, and if so, gather the right evidence to build the strongest case possible. For more information about the elements of a 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
In these cases, it’s especially important to consult a lawyer promptly after the accident. This is because claims involving public transportation agencies or government entities have strict procedural requirements, including much shorter deadlines for filing claims. You’ll often have to file a notice of claim within 90 days of the accident, and the statute of limitations can be as little as one year.
By getting an attorney right away, you’ll be in a much better position to meet all deadlines and other legal requirements. If you miss a deadline, you may no longer be able to pursue a claim for compensation. This is true even if your case is otherwise strong.
Slip and falls while at work — workers’ compensation
If you were injured in a slip and fall at work, your injuries will likely be covered by workers’ compensation laws. This means that instead of pursuing a personal injury lawsuit, you’ll claim benefits under your employer’s workers’ compensation insurance.
Workers’ compensation is a no-fault system, which means you should get benefits regardless of who was at fault — whether you, your employer, or a coworker. In exchange for these benefits, you typically cannot sue your employer for compensation unless they engaged in intentional misconduct. Just like any other slip and fall accident, you should be sure to get medical attention promptly and report the injury as work-related. If you fail to report it and get medical attention, your chances of getting workers’ compensation benefits decrease greatly.
In addition, note that not all workers are covered under the workers’ compensation system. 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.
An attorney can also be helpful even if you’re classified as an employee and know the process for filing a workers’ compensation claim. It’s not uncommon for insurers to resist paying out full benefits, especially if your injuries require extensive medical treatment or long periods off from work. With an attorney advocating on your behalf, you’re much more likely to get the compensation that’s rightfully yours.
If you’re worried about how your employer might react if you seek workers’ compensation, keep in mind that it’s against New York law for an employer to retaliate against an employee for claiming or attempting to claim workers’ compensation benefits. This means your employer may not fire you, demote you, treat you unfairly, or otherwise retaliate against you for pursuing workers’ compensation. If your employer does retaliate, you can file a complaint with the New York State Workers’ Compensation Board. If you experience any problems, you should keep detailed records of all incidents and consult an attorney.
Finally, even though you may be barred from suing your employer due to workers’ compensation laws, it may still be possible to file a claim against a third party. 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 will be able to investigate your accident and identify all the options available to you.
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 (hip fractures are especially common among the elderly)
- 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
While some of these injuries are minor and require little or no medical attention, many 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 work, perform daily tasks, or care for your family.
Calculating all of your economic and non-economic losses resulting from a slip and fall injury 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.
What to do if you’ve had a slip and fall accident
After a slip and fall, it’s common for victims to try to brush it off and quickly move on. But it’s important not to write off your fall as “not that serious” right away. Many falls result in injuries that don’t become obvious until later on. To preserve your chances of receiving compensation for your injuries, you should take the steps below as soon as possible.
Get medical attention
If you were at all injured, get medical attention as soon as possible. As noted above, while some injuries are obvious, others may not show symptoms until days or even weeks later. Seeing a medical professional right away can help make sure these injuries don’t go untreated. It also provides stronger evidence that your injuries resulted from the fall. The longer you wait to get medical help, the easier it will be for the defendant and their insurer to argue that your injuries were not the result of the fall on their property. If you don’t get medical treatment at the scene of the accident, you should go to the doctor, hospital emergency room, or emergency care clinic and report that your injuries were the result of your fall. Be sure to keep records of all medical visits, treatments, tests, and prescriptions related to your accident.
Take photos and/or videos
If you can do so without making your injuries worse, take photos and video to thoroughly document the scene of your accident. This should include close ups of the hazard that caused your fall, as well as the surrounding area. If you’re unable to document the scene, try to get someone to do it for you. Dangerous conditions are often cleaned up or corrected quickly after a fall, so it’s important to preserve this key evidence while it’s still available.
Talk to the property owner or other person in charge
If possible, report your fall to the owner or other person in charge of the property and take down their contact information. Evidence that you reported the fall will be helpful for any claim you may file later on. It’ll also give the owner a chance to correct the condition that caused your fall so that no one else gets hurt.
If you were injured at a business, also ask for a copy of the incident report. This should be completed at the time of the accident. It should include what happened, what caused your fall, witnesses, and any other relevant information such as weather conditions or lighting. During all interactions, be careful not to admit fault, say that you’re “fine,” or speculate about how the accident happened, as this could be used against you later.
Get contact information from witnesses
If any bystanders witnessed your fall, try to get their contact information. If you file a claim, you and your attorney may need to reach out to them again later on. If possible, you can also try to record their statements at the scene. As always, be careful not to admit any responsibility for the fall during your interactions, as this may hurt your case.
Write down your account of events
As soon as possible after your fall, write down your own account of events while it’s still fresh in your memory. This narrative may be helpful later on when you explain what happened to a lawyer and begin building your case. Your account should include what happened before, during, and after the fall, including any statements made by employees or other bystanders. Try to include as many details as possible about what you saw and heard. Some details that seem insignificant can end up having a big impact on your case.
Contact a lawyer
Talking to an attorney is one of the most important steps to take after a slip and fall. There are strict legal deadlines for filing a slip and fall claim, and if you miss these deadlines, you won’t be able to pursue compensation. By promptly consulting an attorney, you’ll have someone experienced to guide you through the entire process and make sure you meet all legal requirements and deadlines. (See Pursuing Compensation — Statute of limitations.)
Consulting a lawyer right away is also important because after a fall, the property owner’s insurance company will likely reach out to you to discuss the accident. You should not talk to them before you talk to an attorney. In fact, it’s best to have an attorney handle all communications regarding the accident on your behalf. This is because insurance companies are focused on protecting their financial interests above all else. When an insurance adjuster speaks to you, it’s their job to try to find information they can use to reduce or deny your claim. Without the right experience negotiating insurance claims, it’s easy to make mistakes that could cost you valuable compensation. By getting an experienced personal injury attorney on your side, you’ll be better able to avoid mistakes and get the proper amount of compensation for your losses. (See Finding an Attorney for Your Case.)
Finding an Attorney for Your Case
Your chances of getting the best possible outcome in your slip and fall case increase significantly when you engage an experienced personal injury lawyer. Navigating the insurance and legal systems on your own is not easy. Even a small mistake could end up hurting your ability to get compensation. The insurance company will also likely try to take advantage of your inexperience dealing with claims and offer you much less than you actually deserve, or even deny your claim completely.
By having an attorney handle the process on your behalf, you’ll have someone experienced on your side to manage all communications 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 trying to find and hire an attorney may seem like it’ll only add to your stress while you’re recovering, it’s critical to act quickly. If you wait too long, important evidence may be lost, and you also risk missing legal deadlines. By getting the help of an attorney immediately, you’ll be in a much better position to build the strongest possible case and meet all deadlines. You’ll also no longer have to deal with calls about the accident from the insurer or anyone else, as your attorney will handle everything on your behalf.
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:
The attorney you choose should have experience with similar cases, including dealing with the insurance system and all relevant laws. During your initial consultation, it’s a good idea to ask about the attorney’s specific experience, including how long they’ve been practicing and how many cases they’ve handled.
You’ll likely have plenty of choices when looking for a personal injury attorney. But even among experienced lawyers, some are able to achieve better results than others. This is why it’s also a good idea to ask for a short list of an attorney’s biggest settlements and verdicts. If an attorney can show a strong record of successful verdicts, that will tell you that they’re not afraid of bringing a case to trial. This is important, because sometimes going to trial is necessary to get fair compensation.
Preparing, negotiating, and litigating a personal injury case is time-consuming and expensive. That’s true even if a case settles, and a settlement is never guaranteed. That’s why the attorney you choose should have the financial resources and support to handle the case all the way through trial, if needed. They should also have connections with high-quality experts. When meeting with an attorney, you can get a sense of their resources by asking about their average expenditures on slip and fall cases. You can also ask about the most they’ve ever spent to bring a case to verdict.
Having an attorney who doesn’t pay attention to your case can make an already-stressful situation even more stressful. An inattentive attorney may also miss crucial details that could affect the outcome of your case. To avoid these kinds of problems, you’ll want to get a sense of how an attorney will respond to you before you hire them. Ask them during the initial consultation how you can communicate with them, as well as how long they’ll typically take to return your messages.
Hiring an attorney for a personal injury case is almost always a worthwhile investment. But you also don’t want to be surprised by unexpected fees. For this reason, don’t be afraid to ask about a lawyer’s fee structure before hiring them. Keep in mind that it’s standard for personal injury attorneys to take cases on contingency. That means you shouldn’t have to pay anything up front. The attorney will only get paid if they win money for you in a settlement or at trial. Their fee will be a percentage of your award.
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 behalf of their clients, 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 York?
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 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 Chapter 1, a slip and fall on someone else’s property does not necessarily mean that the property owner is legally responsible for your injuries. A successful slip and fall claim involves first identifying the proper defendants, then proving four elements: duty, breach, causation, and damages. Each of these elements are described in more detail below. Insurance companies also analyze these elements when evaluating a claim.
Building a strong slip and fall case is complex, and the appropriate strategy depends on the unique facts surrounding your accident. For the best chances of success, you should work with an experienced slip and fall attorney.
Identifying responsible parties
Property owners are often the defendants in a slip and fall case, as they are typically in the best position to keep the property free from dangerous or defective conditions. In New York, however, the responsible party may be the owner, or it may be the individual or entity with occupancy, control, or special use of the property. Identifying the responsible party or parties is not always straightforward.
In Turrisi v. Ponderosa, Inc., for example, a woman slipped and fell in a shopping center parking lot as she was leaving a Ponderosa restaurant. She sued both Ponderosa and the owner of the shopping center. Ponderosa filed a motion for summary judgment dismissing the case against it on the grounds that it did not own, occupy, or control the parking lot area where the plaintiff fell (all parties agreed that “special use” was not applicable). The motion was granted.
On appeal, the dismissal was upheld. The court noted that the lease between Ponderosa and the shopping center owner stated that the owner was responsible for maintaining all common areas of the shopping center, and Ponderosa merely had a right to use such areas. Although the exit area was constructed in accordance with Ponderosa’s specifications, the owner had plenty of time after it took possession and control of the area to discover and correct any defective conditions.
As the Turrisi case shows, it may take some investigation to identify the right defendants in your case. Other potential defendants may include:
- property managers or caretakers
- individuals or entities leasing the property from the owner
- repair companies
- maintenance companies
- landscaping companies
It’s even possible for different individuals or entities to be responsible for maintaining different parts of a property. Your attorney will help thoroughly investigate and identify all the responsible parties in your case.
After identifying the appropriate defendant, you then have to prove they owed a duty to you. In many states, the status of the injured person on the property (business invitee, licensee/social guest, or trespasser) determines the duty of care. In New York, however, a single standard applies: as stated in Basso v. Miller, a person or entity in control of a property has a duty to maintain such property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”
Still, the status of the injured person on the property is a relevant factor in the analysis. For example, defendants often don’t have any duty to trespassers, as injuries to trespassers are usually not foreseeable. This is subject to the following exceptions:
A defendant generally owes a duty of care to a trespasser that the defendant knew or should have known was trespassing on the property. In this case, the property owner will owe the same duty of care to the trespasser that it would to any other legal visitor.
Under the “attractive nuisance” doctrine, property owners owe a duty of care to child trespassers if there’s a condition on the property that’s likely to attract children, such as a pool or playground equipment. If a child trespasser is injured by such condition, the owner may be liable, even if the child trespasser was unknown to the owner.
Once you’ve established that the defendant owed a duty of care to you, you’ll have to prove that the defendant breached their duty of care by failing to take “reasonable care under the circumstances” (in other words, that they acted “negligently”). If the defendant acted negligently, they are legally responsible for any injury or harm that resulted.
In a slip and fall case, proving negligence generally involves showing that:
- a dangerous condition existed on the property;
- the defendant created the condition or knew or should have known about the dangerous condition; and
- the defendant failed to repair it, insufficiently repaired it, or failed to warn of the condition.
A defendant “should have known” about a defect if it’s visible and existed long enough for them to discover and fix it prior to the accident. This is called “constructive” notice. A court may also find that a property owner had constructive notice of a defective condition if they had actual knowledge that such condition was recurring, even if they weren’t aware of the specific reoccurrence that caused the plaintiff’s fall.
In Rivera v. 2160 Realty Co., LLC, for example, the plaintiff slipped and fell on trash left in the stairway of his building by other tenants who often partied in the stairwell. Although there was no evidence the defendant was aware of the specific items the plaintiff slipped on, the defendant was aware of the frequent partying and the recurring issue of trash and spills in the stairwell. The court held that this was sufficient to prove the defendant had constructive notice of the condition and therefore could be held liable for the fall.
Note that certain building code or regulatory 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.
Proving negligent behavior is only the first part of winning a slip and fall case. You’ll also have to show that their negligence 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 breached their duty to keep their property reasonably safe, your fall was caused by something else. Or they may argue that your injuries were actually pre-existing. This is why it’s important to get medical attention right away and get documentation of your injuries and treatment. You should also be careful not to sign any medical releases for the insurer or anyone else without consulting a lawyer. Medical releases allow third parties to get your medical records directly from your healthcare provider. If a medical release provides for unlimited access, the third party will be able to get your entire medical history. This will allow them to dig for information about previous conditions or injuries and use it against you.
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 York also permits punitive damages. 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, then negotiate with the defendant 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.
If you have a viable slip and fall accident case, the first step towards getting compensation is usually filing a claim with the defendant’s insurance company and trying to negotiate a settlement. If that’s not possible, the next step is filing a personal injury lawsuit.
If a defendant 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
When interacting with insurance companies, keep in mind that their top priority is not to provide you with the compensation you deserve, but instead to protect their own financial interests. This means you cannot 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 seem.
As the insurer investigates your claim, they’ll be searching for information that they can use to reduce or deny your claim. Many adjusters deal with insurance claims on a daily basis, so they’re often skilled at getting 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. Insurers also often use high pressure tactics to try to get you to settle for far less than your claim is actually worth.
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
The statute of limitations is a law that sets a deadline for filing a lawsuit. In New York, the deadline for filing a slip and fall accident lawsuit is generally three years from the accident. While three years may seem like plenty of time, it’s important to act quickly for a number of reasons.
First, some types of cases have much shorter deadlines. For example, if you’re suing a public transportation agency or government entity, you usually only have 90 days from the accident to file a notice of claim and may have as little as a year to file a lawsuit.
Second, the strongest evidence in a slip and fall case often disappears quickly after the accident. To get video and/or photo evidence of the dangerous condition that caused your fall, it’s critical to act fast. The sooner you act, the more likely you’ll be able to find and speak to witnesses that were present at the scene as well.
Third, identifying the proper defendant and negotiating with the defendant and their insurer can take much longer than you may think. The insurer may even intentionally draw out the process. The more time you have to prepare for a lawsuit, the better. By getting started promptly after your accident, you and your lawyer will have as much time as possible to build your case, negotiate a settlement, and, if necessary, file a lawsuit.
If you miss the deadline under the statute of limitations, you’ll no longer be able to seek compensation from the defendant unless a rare exception applies to your case. To make sure you meet all deadlines and 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 damages you can receive in a slip and fall case depends on the strength of your case as well as 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 medical treatment and any other ongoing consequences of your injuries.
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:
Economic damages include compensation for monetary losses relating to your claim. Such losses may include past and future medical expenses, lost wages because you’re unable to work (or limited in the type of work you can do), and other out-of-pocket expenses.
Non-economic damages include compensation for things like pain and suffering, diminished quality of life, disfigurement, disability, and impairment. Spouses, children, and parents of injured patients may also be able to recover damages for loss of companionship and other benefits of a family relationship that were lost due to slip and fall injuries.
These types of damages are more subjective and more difficult to calculate. But generally, when deciding how much to award in non-economic damages, the judge or jury will consider the nature of the injury, its severity, and the impact on one’s life.
Punitive damages are not intended to compensate a victim, but rather to punish the defendant for their conduct. While New York allows punitive damages, they’re only awarded in extreme cases involving egregiously negligent, reckless, or willful conduct.
Pursuing a claim against a friend or relative
Property owners have a duty to keep their property reasonably safe for all guests — including friends and relatives. If a friend or relative breached their duty of care to you while you were visiting their home, you may be understandably concerned about how suing them would affect your relationship. But injuries often come with medical bills, lost wages, and other expenses, and getting compensation for those losses is an important part of being able to move on with your life.
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. 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 defendant created or 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
Experts are another important part of a slip and fall case. If issues in your case involve special skill, training, or experience, you may need an expert to express an opinion. For example, medical expert testimony can help link your injuries to the fall and explain the impact of your injuries on your life. Or if your case involves a structural defect, you may need to engage a structural engineer to provide testimony about such defect.
When choosing a lawyer, you should look for someone who has access to highly qualified 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. Your attorney will be able to help you collect the right evidence and build the strongest case possible.
When pursuing a slip and fall case, the defendant 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. Getting the help of an experienced slip and fall lawyer can go a long way in effectively countering these defenses.
The “comparative negligence” rule
In many slip and fall cases, the defendant or their insurer will argue that the plaintiff was at least partially responsible for their fall. This is because if more than one person or entity is responsible for an accident, in New York the comparative negligence rule applies. Under this rule, if you share fault in an accident, your damages will be reduced in proportion to your percentage of fault.
As an example, if you had $100,000 in damages, and you’re found 60% at fault, you would only recover $40,000, or 40% of the total damages. 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 comparative negligence rule when evaluating your case.
Examples of behavior that could potentially lead to a finding of shared fault 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
Assigning fault in an accident isn’t an exact science. So although you should be aware of the 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.” Whether a condition is “open and obvious” depends on the circumstances, but when a defendant asserts this defense, they’re arguing that you should have noticed the condition and understood the danger it presented.
In New York, property owners generally don’t have any legal obligation to warn people of open and obvious dangers. However, as stated in MacDonald v. Schenectady, even when a dangerous condition is open and obvious, a property owner may still be liable for failing to maintain their property in a reasonably safe condition.
In MacDonald, the plaintiff tripped on a crack in the sidewalk. The crack was readily observable, and the plaintiff had also encountered it many times prior to her fall. The lower court dismissed the complaint on the grounds that the defect was open and obvious, but on appeal, the dismissal was reversed. The Appellate Division court held that even if the defect was open and obvious and the defendants had no duty to warn, they still had a duty to maintain their property in a reasonably safe condition.
When determining the liability of the defendant, the open and obvious nature of the condition is taken into account in the overall analysis, including the foreseeability of the accident and whether the plaintiff shared fault in the accident.
In New York, property owners are not liable for injuries caused by “trivial defects.” What is “trivial” is not specifically defined by law, and size itself is not the determining factor. Instead, triviality is determined in light of all the circumstances. If the defect is not objectively dangerous in light of all the circumstances, the defendant won’t be liable. The case may even be dismissed before going to trial.
In Trincere v. County of Suffolk, for example, the plaintiff tripped and fell on a cement slab that was elevated about half an inch. In that case, the New York Court of Appeals concluded that the lower court properly dismissed the plaintiff’s claim. In doing so, the New York Court of Appeals held that while there’s no “minimal dimension test” a defect must pass before a lawsuit can proceed, a claim may be properly dismissed after looking at all the facts and circumstances presented, including the “width, depth, elevation, irregularity and appearance of the defect” as well as the “time, place and circumstance” of the accident.
Winning a slip and fall case generally requires showing that the defendant knew or should have known about the dangerous condition that caused your fall. If the condition didn’t exist long enough for the defendant to have notice of the condition at the time you fell, they may avoid liability.
In Gordon v. Am. Museum of Natural History, for example, the plaintiff fell on the steps of the museum on a piece of white wax paper from a concession stand. There was no evidence that any of the defendant’s employees actually saw the paper, so they did not have actual notice of the dangerous condition. The plaintiff also didn’t describe the paper as dirty or worn, which would have indicated that it was on the steps for a while, so there was also no evidence of constructive notice. As a result, the complaint was dismissed. In reaching this decision, the court noted that the paper could have only been on the steps for seconds or minutes before the accident, and any other conclusion would only be speculation.
Other common defenses are procedural in nature. For example, the defendant may argue that the statute of limitations has 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 so long as 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. If you miss a deadline because you sued the wrong party, you may not be able to recover any compensation at all.
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.
Filing and serving a Complaint
The Complaint is a document that lays out the facts supporting each element of your claim, including how your fall happened, the defendant’s negligent behavior, your injuries, and the compensation that you’re seeking. Your attorney will prepare and file the Complaint on your behalf, which will officially begin your lawsuit. A copy of the Complaint must also be delivered (or “served”) to the defendant, along with an official notice of the lawsuit called a “Summons.”
Once the defendant receives the Complaint, they’ll have to file an official response called an “Answer.” In their Answer, they’ll admit or deny the allegations in the Complaint. The Answer will also include any defenses and counterclaims.
After the Complaint and Answer are both filed, the discovery process will begin. During discovery, both sides will gather documents, information, and other evidence to build their cases and arguments. They’ll also engage expert witnesses and schedule “depositions” with various parties. Depositions are sworn, out-of-court testimonies in the form of question-and-answer sessions with the attorneys. If requested by the defendant, you may have to undergo an Independent Medical Examination (“IME”) as well. The IME is conducted by a doctor chosen and paid for by the defendant. The purpose is not to provide treatment or care, but to gather information about your injuries and condition that can be used in the lawsuit.
Throughout the process, attorneys may make various requests to the court called “motions.” Examples include motions to dismiss (throw out the case because of a legal deficiency), compel discovery (order the other side to respond to a discovery request), or change venue (move the case to a court in another location).
If the parties don’t reach a settlement agreement, after discovery the case will proceed to trial. However, a settlement can still be reached any time before the judge or jury makes a decision. During the trial, both attorneys will give opening statements, present all evidence, call witnesses (including experts), and conclude their cases with closing arguments. The judge or jury will then decide who wins the case and the amount of damages, if any (called the “verdict”).
Once the trial is over, the losing side may decide to “appeal” to a higher court. An appeal is basically asking the higher court to review the actions of the trial court and make sure the law was properly applied. If you win an appeal, it’s possible to reverse the decision of the trial court.
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.” 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. This is especially true early in the process, so it’s best not to rush settlement negotiations. In general, the faster you settle, the lower the settlement amount — sometimes for much less than your case is 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.
Note that 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.
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 York. 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 York slip and fall accident attorney.
Every slip and fall accident is different, and whether you have a viable claim will depend on the specific facts of your case. This is usually difficult to determine without consulting an attorney. First, the attorney will have to determine whether the deadline under the statute of limitations has passed. If not, they’ll then review any available evidence to figure out whether the facts seem to support a claim.
If it appears you have a claim and you both decide to move forward, your attorney will conduct further investigations and begin negotiations. During this process, additional evidence may come out that affects the strength of your claim. If this happens, your attorney will be able to advise you on the best course of action. See Elements of a Slip and Fall Claim for more information about the requirements for a successful slip and fall claim.
Valuing a case is a complex process. There is no “standard” amount of compensation for a slip and fall accident, or any type of injury. Instead, your attorney will work with medical experts to determine how much to seek based on the circumstances of the accident and your particular injuries. Possible damages may include:
-economic damages, such as medical bills, lost wages, and other expenses;
-non-economic damages, such as compensation for pain and suffering, impairment, or disability; and
-punitive damages if the defendant’s conduct was especially egregious.
See Pursuing Compensation — Valuing a slip and fall case for more information.
It’s standard for personal injury attorneys to offer an initial consultation free of charge and take cases on a contingency basis. This means that you won’t have to pay them up front. Instead, their attorneys’ fees will come out of any money they win for you in a verdict or settlement.
Personal injury attorneys usually advance litigation expenses as well, such as fees for depositions, copying records, and engaging experts. These expenses will also be reimbursed from any verdict or settlement.
To avoid any unpleasant surprises, when consulting with a lawyer you should ask about their fee structure. You should also carefully read your engagement letter, which will outline how all fees and expenses will be handled.
In New York, the statute of limitations generally only gives you three years from the date of accident to file a lawsuit. This deadline may only be extended in very limited circumstances. Note that this is the deadline for starting a lawsuit. It maybe resolved much later.
Some types of lawsuits also have much shorter deadlines. For example, if you’re suing the Metropolitan Transit Authority, you’ll generally have to file a notice of claim within 90 days of the accident and file a claim within one year. Lawsuits involving other public transportation or government agencies have similarly short deadlines.
If you miss any deadlines, your lawsuit will likely be barred and you won’t be able to recover compensation from the defendant. But even if you think you already missed a deadline, it’s worth consulting with an attorney. The attorney will confirm whether any exceptions apply to your case.
It’s possible. Both sides in a lawsuit usually prefer to settle, as going through the trial process can involve a lot of time, money, and uncertainty. However, if the property owner or their insurance company refuses to pay a fair settlement, it may be necessary to go to trial.
If that happens, you’ll have to appear in court. Throughout the litigation process, you’ll also have to attend other proceedings, such as negotiations, depositions, and medical examinations. If you do have to go to court and make other appearances, your attorney will guide you through the entire process.
It’s difficult to predict how long it will take to resolve any lawsuit. If a case is particularly strong, it may settle in a matter of months. Other cases can take years, especially if they go all the way through trial.
The first step is consulting with an attorney. Your attorney will review all available evidence and decide whether they can take on your case. If you both decide to proceed, your attorney will then investigate further and start to prepare your case. They’ll also begin negotiations with the defendant and their insurer.
If the defendant won’t agree to a fair settlement, your attorney may proceed with a lawsuit. The attorneys will continue to negotiate, and there will be a period of discovery and motions. If the parties still don’t reach a settlement during this time, the case will ultimately go to trial.
The above process can take a lot of time. How long your case takes will depend on the complexity of the case, the strength of the evidence, and how busy the court is. The cooperation of the defendant, their insurer, and other parties involved in the case will also affect the timeline.
While not every case will be picked up by the media, it is possible. Lawsuit records will generally become part of the public record. That includes your court filings and the rulings in the case.
If you settle out of court, you may be able to keep many sensitive details and the settlement amount out of the public record. Your attorneys can also draft the settlement agreement in a way that obligates the parties to keep the details confidential.
If your loved one died as the result of a slip and fall accident, you should contact an experienced slip and fall accident attorney right away to evaluate your case. You may be able to bring a wrongful death action and pursue damages for funeral expenses, loss of companionship, and other losses. While money can’t truly compensate for the loss of a loved one, it can provide a sense of justice and help provide financial stability for those left behind.
The sooner you contact a lawyer, the better. As more time passes, the more difficult it becomes to gather the right evidence. Preparing a case will also require a thorough investigation, and like other types of cases, there are strict legal deadlines for filing a wrongful death lawsuit.
If you have other questions about a potential slip and fall accident case, you should contact a lawyer right away. As noted above, there are time limits for filing a claim, and the strongest evidence may disappear soon after an accident. If you wait too long, it may be too late to pursue compensation.
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 insurance and legal processes, engage the right experts, and fight on your behalf for maximum compensation.
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.