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Proving Liability In Slip and Fall Cases

In every personal injury case, there are certain elements that the plaintiff must prove – and this is no different in slip and fall cases.  The plaintiff must prove that the accident was the defendant’s fault; specifically, the plaintiff in a slip and fall case must show that a dangerous condition on the property caused the injury; and that the dangerous condition was the defendant’s fault. The law says a dangerous condition is the defendant’s fault if he had notice of the condition and failed to take steps to remove it or provide adequate warning to the plaintiff.

If hiring a San Diego slip and fall lawyer is on your to-do list, here are seven ways to help prove liability in a slip and fall case:

1. Dangerous Condition

The plaintiff must show that a dangerous condition existed on the premises, and that said condition created an unreasonable risk of harm to the plaintiff.  This condition is usually a physical feature which can be specifically identified or measured.  Whatever the nature of the dangerous condition, the plaintiff must also show that the defendant knew or should have known about it, and failed to adequately warn the plaintiff of the hazard.

2. Duty

Every owner or occupier of property is required to use the level of care of an ordinarily prudent adult to prevent an unreasonable risk of harm to persons who may come onto the property.  Determining what constitutes an unreasonable risk of harm is the battleground here.  In determining whether a risk of harm is unreasonable, the Courts observe practical limits.  A defect may present a certain level of risk, but the cost and practicality of removal are unwarranted based on an economic and risk/benefit analysis.  For example, three-quarters of an inch variation or less in the height of a walkway are usually considered a trivial defect not subject to repair, even though variations of this height may constitute a real hazard to pedestrians.  As with any personal injury case, every slip and fall case is unique and must be evaluated on its own merits.

3. Notice

Notice is the most important issue in a premises liability case. Notice is either actual or constructive.

Actual Notice

If the defendant knew of the dangerous condition and failed to remove it or use reasonable safeguards to protect persons coming onto the property, then the defendant is negligent.  Since most people will correct hazards of which they are aware, cases with actual notice are rare.

Constructive Notice

Constructive notice occurs where the defendant would have discovered the dangerous condition had he used ordinary care.  The owner or occupier has a duty to inspect the property to discover any conditions which create a risk of harm to persons who may come on the property.  The type of premises will determine the scope and frequency of these inspections required to meet the standard of ordinary care.

4. Breach

When the defendant fails to discover a hazard (that would have been discovered using ordinary care) or fails to correct a known hazard, the duty has been breached.  If the breach is due to a failure to use ordinary care, the defendant is negligent.  Where the defendant is negligent, he is responsible for the accident and resulting injuries to plaintiff.  In those rare cases where the breach is intentional, the defendant may be required to pay punitive damages in addition to general and special damages.

5. Causation

The plaintiff must show the connection between the breach of duty and the injury which results.  While the plaintiff may show the existence of numerous hazards on the property, the plaintiff will not prevail unless he shows that the particular hazard complained of caused the particular injury which the plaintiff suffered.

6. Injury Consistent with Hazard

The plaintiff’s version of events must be logical and make sense.  The dangerous condition alleged by the plaintiff must be the kind that could cause the injury suffered by the plaintiff.

7. Damages

The plaintiff in a slip and fall case is entitled to damages (compensation).  There are three types of damages: special damages, general damages, and punitive damages.

Special Damages

A plaintiff who prevails is always entitled to recover special or actual damages incurred as a result of the accident.  Special damages also called “out-of-pocket damages,” include medical bills, loss of income and compensation for other expenses which would not have been necessary had the accident not occurred.  Although the amount of medical bills incurred is seldom in dispute, defendants will usually dispute the reasonableness and necessity of these bills, and the law only requires the defendant to pay those bills determined to be reasonable and necessary.

General Damages

General damages – compensation for pain and suffering – is usually the largest part of any personal injury settlement or award.  Injuries from slip and falls are often very serious and debilitating.  The quality of life can be greatly lowered.  A trial lawyer who specializes in slip and fall cases is familiar with the most effective techniques for presenting evidence to obtain the maximum settlement or judgment for pain and suffering.

Punitive Damages

California permits plaintiffs to recover punitive damages where the defendant’s disregard of the dangerous condition amounts to a willful disregard of the safety of the plaintiff.  In order to recover punitive damages, the plaintiff must prove that the defendant had actual notice of the dangerous condition, had an opportunity to remove the dangerous condition, and willfully failed to take action.

How Howard Kitay Can Help

While most cases eventually settle before trial, preparation for trial is the key to obtaining the maximum settlement.  At the Law Offices of Howard Alan Kitay, every case is prepared for trial; as a result, most of Mr. Kitay’s clients obtain the best possible settlement without ever going to trial.

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