One of the most happening personal injury claims is undoubtedly slip and fall accidents, where in most cases, the property owners employ strong legal defenses to avoid liability. Knowing these varied circumstances and how to oppose them can greatly influence the outcome of a slip-and-fall lawsuit.
Whether you are a legal professional or an injured plaintiff, understanding the common tactics used by defendants will help make your claim stronger. Having said that, this guide shall dive into the five major defense strategies that property owners leverage in slip and fall accident lawsuits.
1. Comparative negligence and the 50% rule
The comparative negligence rule is the most commonly preferred defense tactic of property owners. Here, they argue that the plaintiff is partially or fully at fault for the fall. Many states also mandate the modified comparative negligence rule, especially the 50% rule, wherein if an injured victim is determined to be 50% or more at fault, they cannot recover any losses.
Case law example:
In Cater v. City of Cleveland, 83 Ohio St.3d 24 (1998), the Ohio Supreme Court ruled that, according to comparative negligence, if the state’s 50% threshold is met, a plaintiff’s partial liability could lower or even prohibit compensation.
Plaintiff strategy:
To counter this defense, the plaintiff should:
- Gather and present valid evidence of reasonable caution (witness statements, photographs of the scene, clothing or footwear worn at the time of the accident, medical records of the injury treatment).
- Expert testimony on proper property maintenance.
- Proof of an inadequate warning sign being not visible or too small.
2. Lack of notice
The next common slip and fall case’s valid defense is the ‘lack of notice’ argument. Property owners may argue that they had no actual or constructive idea of the hazardous condition that caused the fall accident. Here, ‘actual notice’ implies that they were aware of the hazard, and ‘constructive notice’ indicates the existence of the hazard for a long enough time for them to be reasonably aware of it.
Case law example:
In Piotrowski v. Menard, Inc., 842 F.3d 1035 (7th Cir. 2016), the plaintiff supposedly slipped on a spill in a store aisle. The court ruled for the defendant because there was no direct evidence showing how long the liquid spill existed.
Plaintiff strategy:
To oppose such a defense, plaintiffs can strengthen their case by:
- Evidence that the property owner failed to conduct routine inspections (no cleaning logs).
- Proof of how long the hazard existed (witness statements, security footage).
- Argument of a foreseeable hazard (anticipate dangers in high-risk areas).
3. The open and obvious doctrine and its exceptions
According to the open and obvious doctrine, property owners argue that they are not responsible, as the hazard was so apparent that a reasonable individual would have avoided it. While courts rule that owners hold no liability to warn of clear dangers, exceptions exist.
Case law example:
In Simmers v. Bentley Construction Co., 64 Ohio St.3d 642 (1992), the court held that a road’s obvious, uncovered pothole was an open and apparent danger, ruling the owner not responsible.
Plaintiff’s strategy and exceptions:
- Demonstrate that hazards were foreseeable.
- Show that the hazardous condition was hidden (such as water blending into a shiny floor).
- Counter that the owner could have taken additional safety measures despite the obviousness of the danger.
4. Recreational use stature immunity
Many states follow recreational use statutes, protecting property owners who open their land for public recreational use at no cost. This defense is primarily applicable in hiking trails, parks, or similar settings. Owners will be held liable only if injuries arise from intentional harm or gross negligence.
Case law example:
In Miller v. United States, 597 F.2d 614 (7th Cir. 1979), the court granted the government immunity under the Illinois recreational use statute when a plaintiff sustained injuries using a public trail.
How to counter this defense:
- Prove the owner’s conduct surpasses the gross negligence threshold.
- Argue that the injury sustained from a known yet hidden hazard, the owner failed to fix (a corrupted bridge).
- Prove that the area was non-recreational or commercial (a parking lot).
5. Trespasser liability limitations
Property owners owe minimal obligations to trespassers, not to intentionally harm them. If someone was injured while trespassing on a property, the owners, technically, do not breach any duty. In Attractive Nuisance Doctrine cases, courts often hold owners liable for injuries to child trespassers, subject to an artificial condition that attracts them and poses a hazard.
Cass law example:
In Kellermann v. McDonough, the court ruled a contractor liable after a child sustained injuries because of inadequate fencing and warnings.
Counter strategy:
- Prove that the trench was an attractive nuisance that drew children.
- Show that the owner knew of the frequent trespassers but failed to secure the area.
- Argue wanton or willful misconduct (ignoring repeated warnings).
Special considerations – Government property
Slip and fall lawsuits against government entities undergo special procedural complexities and immunity rules. Under the Federal Tort Claims Act (FTCA), strict deadlines and capped damages apply.
- Filing claims within 60-90 days.
- Sovereign immunity, unless waived by statute.
Plaintiff strategy:
- Take prompt action within the deadlines.
- Prove that the injury occurred due to routine maintenance failure rather than protected discretionary decisions.
How to strengthen the plaintiff’s case?
Slip and fall accident lawsuits may fail or succeed, depending on the timing and evidence. Here are a few practical tactics to counter common defenses:
- Document everything that would impact the outcome (images of the scene, clothing, injuries).
- Find witnesses, anyone who knew of the danger or saw the accident can help prove constructive notice.
- Secure expert testimony of the property that the hazard breached industry safety standards.
- Collect evidence immediately and file a claim within the statutory timeframe, especially when against government property.
Wrap up
A strong slip-and-fall claim involves anticipating the defendant’s defenses and opposing them with solid evidence. By being aware of these five typical defense strategies and how to contradict them, plaintiffs can heighten their chances of securing a fair settlement. If you sustained injuries in a slip and fall accident, never fall prey to the unfair blame shifted by property owners. Equip yourself with the necessary knowledge and fight for your legal rights.
