Contributory Negligence and Slip and Fall Cases: Why Your Fall May be Your Fault
Jun 25, 2018 | Shari C. Boscolo
According to the National Safety Council, falls are one of the leading causes of unintentional injuries in the United States, resulting in approximately 8.9 visits to the hospital every year. Oftentimes, these injuries occur because a landowner did not warn of a dangerous condition on his/her property or created a dangerous hazard on his/her property. Under Maryland, D.C. and Virginia law, anyone who owns or maintains any type of property is legally responsible for ensuring that the property is safe for the public. If they fail to do that, they may be responsible for any injuries that occur as the result of a fall on their property.
Although landowners bear responsibility for keeping their properties safe, our three jurisdictions still adhere to an archaic defense called contributory negligence. If an injured person is found to have contributed to the incident in any way, they cannot recover compensation for their injuries. The law does not allow an apportionment of fault; any contribution, no matter how slight, can completely bar an injured person’s right to recover damages.
How Contributory Negligence is Used in Slip and Fall Cases
Contributory negligence is argued in many ways. For instance, if an injured person is not looking where they are going, or if they have on some clothing that might impede their mobility, or if they are distracted in any way, this could form the basis for arguing that they contributed to their own injures and so are not allowed to recover compensation. Ignoring a warning sign or walking through an area which is not open to the public can also provide the basis for this defense.
Slip and fall injuries often occur in grocery stores. It is not unusual for produce and liquids to be left on the floors after being spilled or dropped by other patrons at the store. These spills, which are oftentimes left on the floor for long periods of time, create dangerous conditions for customers who could slip on this debris and become seriously injured. If a claim is made, the insurance company will argue that the customer was contributorily negligent by not watching where he or she was walking. Or, if there is a warning sign present, and the customer slips near that sign, the insurance company will again argue that the customer is wholly at fault. Once again, under our law, any fault at all on the part of the injured party precludes any recovery.
Oftentimes, when an injured person falls, the insurance company will put blame on the injured person by arguing that their choice of clothing made them contributorily negligent. For instance, they will argue a person contributed to their own injuries by wearing high-heeled shoes or that their floppy hat impeded their eyesight. Or, the insurance company may argue that the injured person was carrying lots of packages and that their decision to do this, while walking at the same time, caused the injury. Texting while walking or using the phone in any manner while in a public place subjects the injured person to an argument by the insurance company that they are responsible for their own injuries.
Any consumption of alcohol could bar recovery of a claim. It is very common for falls to occur at social gatherings. A person or an entity hosting a social event has a duty to all of the guests to ensure that the property is safe and free from any defects. If the host knows of a problem that you do not know about, the host has the obligation to warn you of the problem. For instance, if there is a staircase in the home that is missing a railing or has a loose step, the host must warn you of that problem so that you are not hurt. However, if you had been drinking at the party, and you fall down this dangerous staircase, your claim could be barred by your own negligence. It doesn’t matter how dangerous this staircase is; your decision to consume alcohol may become an issue in resolving your claim.
Many injuries occur on private property, perhaps in a neighbor’s yard, in their pool or around the house. Common sense suggests that if your neighbor creates a hazard, such as leaving a hose strewn across the lawn or allowing ice to accumulate on the sidewalk, that your neighbor would be responsible for the injuries that their carelessness creates. However, you too are responsible for your own choices when you visit your neighbor’s home. When you fail to “see what there is to be seen,” or when you choose to cross over the icy part of the sidewalk, the insurance company may decide that your conduct gives them the ability to withhold any settlement of your case.
How You Can Help Change the Law
For many years, lawyers who represent injured people have been lobbying their state legislatures and bringing cases before our states’ highest courts in an attempt to nullify the defense of contributory negligence. Our jurisdictions make up three of the five states that continue to completely bar recovery to injured people if they are at fault at all. Maryland’s highest court has recently ruled that any change in Maryland’s contributory negligence law must be enacted solely through the legislature, which has the ability to pass a bill to preclude this defense. For Marylanders, this means lobbying your elected officials in Annapolis is an effective way to change this dated and harmful defense.
A vast majority of the states adhere to a doctrine called “comparative fault.” This generally means that if the injured person is partially at fault, the jury may reduce the amount of damages by the percentage of the injured person’s own fault. For instance, if a jury finds that the injured person is 10% at fault, the verdict would be reduced by that amount. This system apportions fault among the parties and generally results in fairer verdicts.
Unfortunately, slip and fall incidents are likely to occur. Parking lots are slippery, stores are not maintained and repairs are not made in a timely manner. It is difficult in everyday life to fully insulate yourself from the poor choices made by others. Protection against injury and against a claim of contributory negligence requires some diligence and a constant awareness of your surroundings.
What should I do if I’m injured in a slip and fall?
If you are injured in a store, or a home, or a parking lot or any premises, it is important to take pictures of the area where you fell, to document the clothing you were wearing, to write down the names and addresses of all witnesses and to obtain a copy of any incident report that is made. It is also important to write down the exact details of how you fell and what caused you to fall. For more information about what kinds of information and evidence you should collect after being hurt in a slip and fall, take a look at my colleague Patrick Stewart’s blog post.
Do not speak to the insurance company about your case. It is prudent to retain an attorney early on in these types of cases so that you and your attorney can review your own actions. When you retain an attorney, make sure to disclose every detail of your fall; particularly what you saw, what you heard and how you acted.
Slip and fall accidents can result in serious and permanent injuries. Remember, if you fall, the insurance company and their lawyers are always looking for ways to make your fall your fault.