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In childhood, falling is a natural part of life. Slipping on the playground or falling in the backyard is nothing more than an inconvenience. But as we age, falling can evolve into something more serious. Instead of quick healing cuts and bruises, an older person may face broken bones, lingering physical pain, unwanted trips to the doctor, expensive medical bills, and time off work.
If you’ve slipped and fallen on a New York sidewalk, there’s no need to grin and bear the unfortunate consequences. Someone may be to blame for your accident, and if so, they can be held financially responsible for your injuries. With the help of an experienced personal injury attorney, you can take the necessary legal action and recover the compensation you are justly owed.
What Is a Slip and Fall Accident?
A “slip and fall accident” is when someone slips or trips because of a dangerous condition, causing them to fall and become injured. The classic image is found on a wet floor sign showing a person slipping on a wet surface and falling to the ground. Slip and fall accidents can happen in a lot of different ways and in a lot of different places. In this article, we are focused on slips and falls that occur on a sidewalk.
People can slip and fall on a sidewalk for many reasons. Some more common examples include:
- Slipping and falling on wet or icy ground because of inclement weather
- Slipping on a foreign substance
- Tripping over a foreign object
- Tripping over uneven concrete
Slip and fall accidents that happen on a sidewalk are quite dangerous. This is because the victim is falling on a hard surface, making them more likely to suffer a serious injury. These serious injuries include things like:
- Traumatic Brain Injury
- Spinal Cord Injury
- Back Injury
- Shoulder or Neck Injury
- Broken Bones/Fractures
- Severe Sprains
Who Can Be Held Responsible?
The first step in filing a lawsuit is figuring out who you are suing. To recover compensation for your injuries, you have to be able to hold someone legally responsible for your accident. Luckily, there are a lot of potential suspects, depending on the circumstances of your fall. Parties who could be responsible for such accidents include:
- Commercial property owners
- Homeowners
- Adjacent businesses
- Third-party maintenance companies
- Public entities
The key question here is, “Who is responsible for keeping the property where you fell safe?” The answer is not always so straightforward. For example, imagine you slip and fall on a slippery patch of sidewalk outside a donut shop. To figure out who you could hold liable, you’d have to figure out who is responsible for keeping that patch of sidewalk safe. There are many possibilities. Perhaps it is the donut shop. After all, the sidewalk is right outside its building. Or, maybe the donut shop is just leasing the building, and the responsible party is actually whoever they are leasing the building from. On the other hand, the sidewalk might not be private at all. It could be that a public entity is responsible, like the city or municipality where you fell. As you can see, there are many possibilities.
Another great example is the real-life case Nuesi v. City of New York. When Mrs. Nuesi slipped and fell on a New York City sidewalk, she sued both the City of New York and the owner of the property abutting the sidewalk, Hilmark Realty Co. Hilmark asked the court to release them from the lawsuit because they were not responsible for maintaining the safety of the sidewalk. The court stated that Hilmark could not be held liable unless a statute or ordinance made them responsible for the safety of the sidewalk, they created the dangerous condition that caused Mrs. Nuesi’s accident, or they used the sidewalk for a special purpose. After examining the facts, the court concluded none of these things applied to Hilmark, so they could not be held liable.
Clearly, the rules get quite complicated. The bottom line is that while there are probably many parties who could be responsible for your accident, figuring out who to sue is complex. You will need an attorney to evaluate New York’s laws and do some sleuthing.
A Landowner’s Duty: Premises Liability
Once you’ve figured out who can be held liable for your injuries, you need to consider whether they are to blame in the eyes of the law. To figure out whether whoever you sue is actually responsible for your accident, courts apply a rule known as “premises liability.” Premises liability tells us when a landowner can be held responsible if someone is injured on their property. We use the term “landowner” loosely. Remember that we are really concerned with who is responsible for the safety of the property where you fell. The rule is as follows:
“A landowner is liable when they fail to address a dangerous condition on their property that they had notice of, and that condition causes someone lawfully on their property to be injured.”
Let’s break that down. For a landowner to be liable for your injuries, four things must be true:
- You were lawfully (not trespassing) on the landowner’s property.
- You were injured by a dangerous condition on the landowner’s property.
- The landowner had notice of the dangerous condition.
- The landowner failed to address the dangerous condition.
The last two require more explanation. Let’s take a closer look.
Notice
A landowner can have “notice” of a dangerous condition in one of two ways: either they knew of the dangerous condition, called “actual notice,” or they should have known of the dangerous condition, called “constructive notice.” A good example of actual notice is when someone reports a dangerous condition. If someone tells a landowner that there is a foreign substance spilled on their sidewalk, the landowner is given actual notice of that condition. A landowner has constructive notice when a dangerous condition is so open and obvious that they should have discovered it. If a section of the sidewalk has a puddle of oil on it for two weeks, for example, it’s safe to assume that the responsible landowner should have discovered it, meaning they had constructive notice.
Failure to Address a Dangerous Condition
“Addressing” a dangerous condition does not mean providing a perfect solution to fix it. The landowner is only required to take “reasonable” action. This could mean eliminating the condition altogether, but it could also mean taking an action like simply warning people of the condition. They don’t need to be perfect to avoid liability; they just need to be “reasonable.” For example, if a carton of milk spills in a grocery store, the manager is not required to close the store for the rest of the day, though this would almost certainly prevent any accidents altogether. A reasonable action, like mopping up the milk and putting down a wet floor sign, would be enough, even if it doesn’t guarantee that no one will have an accident where the spill occurred.
A Landowner’s Duty During Inclement Weather: The Storm in Progress Doctrine
We’ve established that whoever is responsible for the safety of a given property has a duty to address dangerous conditions on the property that they have notice of. But what about when there is a storm? During a snowstorm or a rainstorm, the sidewalks can become icy or wet, which is an obviously dangerous slipping hazard. And premises liability tells us landowners have to address hazards on their property when they know about them.
So, does the law require landowners to keep the sidewalk safe during a storm? Not quite. The problem is that it is unreasonable to expect landowners to address wet, snowy, or icy conditions in the middle of an ongoing storm. Imagine you worked at a coffee shop, and your boss sent you out during a snowstorm to shovel the snow. Whatever progress you made would be immediately cancelled out by the still falling snow. It would make no sense to have you out there. The law’s solution to this scenario is the “storm in progress doctrine.” It states:
“Those responsible for a property are not required to clear up during an ongoing storm, nor during a break or lull in the storm, nor for a reasonable time following a storm.”
This means that if you slipped and fell because of inclement weather, your attorney will need to consider when the storm occurred to figure out whether the responsible landowner had a duty to address the dangerous condition that caused your accident.
Sharing the Blame: Comparative Fault
So far, we have focused on determining someone else’s fault for your accident. But what about your fault? This may strike you as an odd question, but take a moment to think about it. Fault is rarely absolute. Typically, when there is an accident, more than one person can carry some of the blame, even if it isn’t 50/50. Take, for example, a car accident. Maybe a texting driver who barrels into a pedestrian should have been looking where they were going and shouldn’t have been looking down at a cell phone. But, it’s also okay to acknowledge that the pedestrian could be somewhat to blame if, say, he or she was trying to cross the road against the light.
When the law accounts for both parties’ fault in a personal injury case, it is known as “comparative fault.” Here’s how it will work in your case. First, the court will determine whether whoever you are suing is liable. If they are liable, the court can then determine whether you were at all to blame for causing the accident. Whoever you sued will have to prove to the court that you were at least somewhat to blame. If you were somewhat to blame, the court will assign you a percentage of blame, say, 25%. The amount of compensation you are awarded will then be reduced by this percentage. For example, if you win your case and are awarded $100,000, you would receive $75,000.
The Challenges of Suing a Public Entity
When you slip and fall on a sidewalk, there is a chance that you will be falling on public property, which means you may need to sue a public entity. Suing a public entity can be a big challenge. It’s not that the law shields public entities from being sued; you have a very real chance of recovering compensation if you fall on public property. The problem is that public entities are responsible for so much public property that the law needs a way to limit how often they can be sued; otherwise, public entities would be in court all the time and would be essentially bankrupted by personal injury lawsuits.
There are two main ways the law limits a public entity’s liability for slip and fall accidents on public property: strict procedural requirements and the written notice requirement.
Strict Procedural Requirements
The law weeds out weak or frivolous claims by setting strict procedural requirements. To successfully sue a public entity, you have just 90 days from the date of your accident to file a legal form known as a “notice of claim.” This lets the public entity know that you intend to sue them, giving them a chance to investigate your claim. You then must wait 30 days after you file your notice of claim before you can continue with your lawsuit. Overall, you have one year and 90 days from the date of your accident to begin your lawsuit, or else, your claim expires. This is much stricter than the time limit for personal injury cases not involving a public entity, which is two years.
Written Notice Requirement
Many municipalities, such as New York City, have adopted a written notice requirement, which is perhaps one of the law’s most powerful tools for limiting a public entity’s liability. The requirement says that a municipality is not liable for accidents on public property unless the municipality
- Received written notice of the dangerous condition that caused the accident at least 15 days before the accident, or
- Acknowledged the condition in writing at least 15 days before the accident.
So, the ordinary premises liability rules are still in effect. The public entity has to have proper notice of the dangerous condition to be held responsible for the accident. The written notice requirement just puts into place a much stricter version of the ordinary notice requirement. There are two exceptions to the written notice requirement.
- When the municipality created the dangerous condition, and
- When a ‘special use’ confers a special benefit upon the municipality.
Under either of these circumstances, the municipality can be held liable even if they didn’t have prior written notice. This is what happened in the case, Gray v. Fane. Mr. Gray sued the City of Ithaca after he slipped and fell on accumulated ice and snow on a sidewalk there. The City asked the court to dismiss the case because it had not received prior written notice of the condition as a local law required. The court agreed that the City hadn’t received prior written notice but refused to find them not liable because there was evidence suggesting the City might have created the dangerous condition. Apparently, there was evidence showing that the ice and snow had accumulated, at least in part, because of the City’s snow plowing operations. So, even though the City did not receive prior written notice of a dangerous condition, they could still be held liable because of evidence that they created the dangerous condition.
What This Means for Your Case
If you are suing a public entity, you will need to consult an attorney soon after your accident. Given the written notice requirement, your attorney will need to do some digging to figure out whether you have a valid claim. And they will need to do this quickly because of the strict procedural requirements. In limiting public entities’ liability, the law has made it harder for you to hold a public entity responsible. You can push back against this by acting quickly and hiring a good attorney.
How to Prove Fault
To win your slip and fall lawsuit and recover the compensation you are justly owed, you will need to prove the elements of your legal claim in a court of law. As a reminder, your legal claim is called “premises liability.”
For our slip and fall clients, our strategy is to focus significant resources on a thorough investigation. To prove the elements of a premises liability claim, we must first gather convincing evidence. A comprehensive investigation involves things like:
- Researching public records
- Consulting video surveillance footage
- Hiring expert witnesses
- Interviewing eyewitnesses and other relevant parties
- Photographing the scene of the accident
- Reconstructing the accident
- Obtaining maintenance records
Once you have gathered enough good evidence, you must prove your claim in a court of law. Our attorneys expertly connect the facts and evidence to the legal rules, helping the judge or jury understand why the other parties should be held responsible for our clients’ slip and fall accidents.
Recovering Compensation Without a Lawsuit: Making an Insurance Claim
To this point, this article has focused on recovering compensation by filing a lawsuit. While a lawsuit is the most common way to initiate your claim, it certainly isn’t your only option. You may also recover compensation by making an insurance claim. This will most likely apply to you if a commercial landowner is to blame, since they usually carry some sort of property insurance with liability coverage. When you make an insurance claim, you are notifying an insurance company that its policyholder is to blame for your accident, so the insurance company should compensate you for your losses.
Once you make a claim, the insurance company will assign a “claims adjuster” to your case. A claims adjuster is an employee of the insurance company who will be responsible for investigating your claim and determining whether the policyholder is at fault for your accident. If the policyholder is at fault, the insurance company will be responsible for compensating you. If the insurance company determines that their policyholder is not at fault, your claim will fail.
Compensation by Agreement: Reaching a Settlement
Whether you initiate your case by filing a lawsuit or by making an insurance claim, the odds are that your case will be resolved by a settlement. A settlement is when the parties to a dispute agree to end the case early, without a court or insurance adjuster deciding the claim. Usually, the party accused of being at fault will agree to compensate the injured claimant. In return, the injured claimant agrees to forever drop the claim.
The vast majority of personal injury cases end with a settlement. This is because the incentives to settle are strong on both sides. For the injured claimant, being guaranteed compensation without having to wait for the judgment of a court or insurance adjuster is a great deal. And for the party accused of being at fault, settling seems a much cheaper option when they think they are likely to lose anyway. This is because fighting a lawsuit can get expensive, and it only gets more expensive the longer the case is dragged out. And in the case of an insurance claim, the insurance company often thinks they will get a pay out less if they can settle the case early on. So, as long as you have a strong claim, settling can make sense for everyone involved.
Keep in mind that you are neither guaranteed nor entitled to a settlement. Both parties must be willing for a case to be settled. For you, the claimant, the most important thing is to hire an effective attorney who can build a strong claim, so that for the party you are accusing, the incentive to settle is strong.
Will You Need An Attorney?
If you want to recover compensation for a slip and fall accident, you will undoubtedly need the assistance of a qualified personal injury attorney. In fact, there are so many important reasons why you need to hire a personal injury attorney that it would be unreasonable to try and list them all in this section. The law is complicated, and by extension, lawsuits and insurance claims are complicated. Standing between you, an injured claimant, and building a successful claim for compensation are numerous obstacles that a non-lawyer simply isn’t prepared to overcome. Making a single mistake can derail your entire case. An attorney can offer you the legal expertise, resources, and experience to build a robust claim for compensation and smoothly guide it through the claims process so you are paid what you are owed.
Slip and Fall Accident Statistics
While there aren’t too many reliable statistics for slip and fall accidents on sidewalks specifically, statistics on slip and fall accidents more broadly demonstrate how frequent and dangerous these accidents really are. According to the National Safety Council, “in 2019, 39,443 people died in falls at home and at work.” Furthermore, the National Fall Safety Institute reports that each year, American hospital emergency rooms see over eight million fall victims, making falls the leading cause of emergency room visits. Of these eight million fall victims, over one million were hurt in slip and fall accidents.
Frequently Asked Questions
What compensation can you recover?
In a personal injury case, you can recover compensation for your losses related to your accident. This includes specific monetary losses, such as medical bills and lost wages. It also includes more abstract losses that are harder to put an exact number on, like pain and suffering.
What if your fall was not an accident?
Sometimes a slip and fall accident is no accident at all. Maybe you were pushed by a rude pedestrian. Or perhaps you got into an argument and fell because someone tried to take a swing at you. In these cases, your slip and fall accident is not caused by someone else’s carelessness; it’s a result of an intentional act. You can still recover compensation, but the legal rules applicable to your case will be different. Instead of suing for “negligence,” you will probably be suing for an “intentional tort,” such as “battery” or “assault.” You will need an attorney to examine the facts of your case and figure out what you need to prove to recover compensation.
What if you slip and fall on a sidewalk while working?
If you suffer a slip and fall accident while you are working, you may be eligible for worker’s compensation benefits. Worker’s compensation is when your employer’s insurance company compensates you for injuries you suffer while on the job. These cases can get tricky, so you should consult an attorney. In some cases, it might be possible to recover worker’s compensation and pursue legal action against the at-fault party. An attorney can assess the facts and determine your best option.
What happens if a loved one died in a slip and fall accident on a sidewalk?
When a loved one dies in an accident, you can still recover compensation by taking legal action. Instead of filing a personal injury lawsuit, however, your loved one’s estate will file what is called a “wrongful death lawsuit.” A wrongful death case shares many similarities with a personal injury case. But there are also significant differences. Most importantly, if the case is successful, the recovered compensation will be divided among certain surviving family members according to complicated legal rules.
Can you still recover compensation if you are more to blame for your slip and fall accident than anyone else?
Yes. New York’s version of comparative fault is called a “pure comparative fault model.” Under this formulation, any party can recover compensation in a personal injury case as long as they are not 100% to blame.
Is it better to file a lawsuit or to make an insurance claim?
It depends. Lawsuits and insurance claims each have distinct advantages and disadvantages. The upside to a lawsuit is that the process is much more fair than the insurance claims process, as a lawsuit is decided by an impartial judge or jury rather than an entangled insurance claims adjuster. The potential downside is that they tend to be complicated and time-consuming, though your attorney will take care of almost everything for you. The upside to an insurance claim is that the adjuster investigates your claim for you, meaning there is less work on your end. The downside is that the insurance adjuster is an employee of the insurance company, who will be responsible for paying you if the adjuster finds in your favor, meaning there is a chance the adjuster has some bias. Which one is better for you will depend on your circumstances and which upsides and downsides you are willing to live with.
What should you do after a slip and fall accident?
After a slip and fall accident, you should first make sure you are safe and well. Falls can be incredibly dangerous, so you should seek medical attention promptly. Once you are sure that you are okay, you should contact a personal injury attorney as soon as possible. Slip and fall cases can have tight legal deadlines, especially if a public entity is to blame for your accident. Plus, the sooner your attorney can investigate your case, the better.
How are slip and fall settlements calculated?
Slip and fall settlements are not calculated according to a strict formula. Rather, they are guided by what the injured claimant would be likely to recover if the case was decided in a court of law. This is because by settling, the claimant is basically saying they will forever drop their claim because they will be compensated fairly without having to go to court. Another important factor, however, is what the parties fight for. Neither side is required to agree to a “fair” amount. For this reason, it’s important to have a knowledgeable personal injury attorney representing you in settlement negotiations to ensure you aren’t shortchanged.
Who Should You Contact?
Slipping and falling on a New York sidewalk will almost certainly bring physical pain and unwelcome financial consequences. If your accident has been caused by another’s carelessness, contact Rosenblum Law. We earned our reputation as a premier personal injury firm by passionately and aggressively advocating for our clients, refusing to stop until they receive the compensation they deserve. When you hire a Rosenblum Law attorney, you gain virtually limitless resources and decades of legal expertise and courtroom experience. E-mail or call 888-815-3649 for a free consultation.
Additional Resources
Why You Should See a Doctor After a Fall
Last updated: May 11, 2022
