In a slip and fall claim or premises liability case, proving that an owner is responsible for injuries on his or her property can be very challenging. It helps to know some of the common defenses used to refute this type of claim, which your injury attorney in Colorado can help you address.
Negligence of the Injured Party
One possible defense that may be used in a slip and fall claim is the injured person’s actions contributed to the incident and resultant injuries. Keep in mind that in order to prove the property owner was liable, you must show that the hazardous condition was either created by the owner or that the owner knew of it but failed to correct it.
With that, if you partially or wholly contributed to the resulting injuries, it may impact your ability to recover damages in the slip and fall claim. An example would be someone walking through a mall. The floor has just been waxed but no one has put up warning signs or barricades. A patron walks onto the floor, slips and falls.
Although there was negligence on behalf of the mall, it could be diminished if it was found the patron had been texting and walking at the same time. The argument could be that if he or she hadn’t been distracted, there was a chance the individual would have noticed the wet floor.
In Colorado, the modified comparative fault 50 percent rule applies. This means if you are found to be 50 percent or more at fault for the circumstances surrounding your injury, damages cannot be recovered. If the person is less than 50 percent at fault, recovery of damages may be reduced by percentage of fault.
Assumption of Risk
Another possible defense in a slip and fall claim or premises liability case is what’s known as assumption of risk. This means the injured party knew of the potential to suffer harm, yet took a chance.
Using the aforementioned example, let’s say the mall had warning signs posted about the floors being newly waxed. The patron sees them but doesn’t want to take a detour, so he or she goes across the floor anyway. If the person slips and falls, the argument would be that a risk was taken by crossing through the slippery area.
If someone is injured on another person’s property but they had no legal right to be there, this could be a defense as well. This is more typical in cases involving injuries on private property. However, it could also apply if a business is illegally entered. With private property, even if there are dangerous conditions (such as a broken railing) owners are not obligated to warn trespassers.
Someone Else Is Liable
Liability may not rest with the owner. A situation where this could apply is when someone is injured on public property. This could mean that a government entity is liable.
A common scenario is when someone falls on a sidewalk. Even if it was adjacent to a business, it would likely be considered government property. This may mean filing a claim against the government instead of the owner.
Cases of premises liability can become very complex, especially when there is question as far as whether the property owner is even liable for the injuries. D.J. Banovitz is an injury attorney in Colorado who can help those pursuing a slip and fall claim sort out liability and present a case.