When one individual sustains injuries as the result of an accident that occurs on someone else’s property, the injured person may sometimes seek compensation from the property owner to cover damages associated with the accident, such as medical treatment for injuries and wages lost if they have to miss work during the recovery period. In some cases, the property owner’s insurance may cover these claims; in others, insurance is unavailable or the insurer denies the claim. When compensation for damages is not directly forthcoming, accident victims will sometimes enlist the services of a personal injury attorney to assist them, either by negotiating a slip and fall settlement with the property owner’s insurance company or by filing a premises liability lawsuit in the civil courts. If you have been injured in a slip and fall accident, you may find it helpful to consult with a seasoned attorney in your jurisdiction as you consider your next steps. Call Friedman & Bresaw, PLLC today at (603) 707-4800 to schedule a free case evaluation with one of our experienced New Hampshire premises liability lawyers.
Slip and Fall: Premises Liability
“Slip and fall” lawsuits are typically filed on the basis of a legal principle known as “premises liability,” which holds that property owners (and sometimes other parties responsible for maintenance, such as building managers) have a legal “duty of care” toward legitimate visitors who enter their premises (property). While some circumstances can cause responsibility for an accident to tilt back toward the injured party (in some jurisdictions, for instance, people who are injured while on another party’s property in the pursuit of illegal activities are prohibited from recovering compensation for any damages they suffer in the process), in general United States jurisprudence embraces the general concept that inviting individuals or the general public, implicitly or explicitly, onto one’s premises comes with a basic responsibility to take reasonable measures to ensure those premises are safe to visit.
Premises Liability: Civil Torts
Like other personal injury claims, premises liability lawsuits belong to the broad category of civil torts. According to Cornell Law School’s Legal Information Institute, a tort is a harm one party does to another, intentionally or unintentionally, through commission or omission, for which courts can impose legal responsibility (liability), and torts can be divided into three main categories:
- Intentional torts: Torts in this category, as the name would suggest, are enacted deliberately; intentionality means that the tort is a conscious choice, but it can be an act of omission as well as commission.
- Negligent torts: Negligence need not mean absolute recklessness; can be as simple as a property owner failing to take the care a reasonable person should take to prevent foreseeable harm to others from conditions on their property.
- Strict liability: Some kinds of harm should just never happen. Strict liability is often applied in defective product cases, on the principle that, under certain circumstances, being careful is not enough to absolve a defendant from legal responsibility when their actions or failures to act have resulted in actual harm.
Most slip and fall cases are tried on the basis of alleged negligence; cases in which a property owner can be shown to have deliberately created the conditions for a slip and fall accident are relatively uncommon. For similar reasons, the principle of strict liability is also not often applied in premises liability lawsuits. However, every case is different, so you may wish to consider speaking with an experienced personal injury attorney with Friedman & Bresaw, PLLC to discuss the unique circumstances of your own slip and fall injury.
Elements To Prove in a Slip and Fall Case
Because most premises liability cases allege negligence, rather than intentional wrongdoing or absolute responsibility, on the part of the defendant, proving a slip and fall case typically requires the plaintiff to demonstrate the defendant’s negligence to the court. However, simply showing that the defendant took somewhat less care for visitor safety than they perhaps should have done will not, in and of itself, guarantee an award of compensation sufficient to cover the accident victim’s damages.
To secure a positive outcome in their case, the plaintiff in a premises liability lawsuit must typically prove each of the following elements:
Element # 1: Duty of Care
A premises liability lawsuit must prove that the defendant owed the plaintiff a duty of care. Usually this means establishing that the defendant owned or was responsible for operating and maintaining the premises, and that the plaintiff had a legitimate reason for being on the property. Whether responsibility for the property’s safe maintenance is a contentious question or, on the other hand, readily documented can sometimes depend upon the property management structure for the premises in question; the apportionment of property maintenance responsibilities in a commercial lease can sometimes be especially tricky to navigate. Naming as defendant the party actually responsible for conditions on the property where the accident occurred is crucial to succeeding at trial, so a seasoned premises liability attorney will often seek to secure this point early in the pretrial process by requesting any relevant leasing documents and reviewing the terms outlined regarding general upkeep, regular vs. exceptional maintenance, and other considerations that may affect the party responsible for the conditions that led to the accident.
Once responsibility for the condition of the property is clear, the legitimacy of the plaintiff’s purpose for being on the property will typically require showing either that the premises were open to the public (as is implicitly the case with many business locations) or that the defendant otherwise invited the plaintiff onto the premises (this scenario is more common when the slip and fall accident occurs on an individual’s private residential property). Commercial vs. residential premises tend to be subject to somewhat different insurance policies and visitor expectations, so the arguments involved in showing the plaintiff’s lawful purpose may differ accordingly.
Element #2: Breach of Duty
In order for the plaintiff in a premises liability case to show that the property owner was to blame for their slip and fall accident, they will need to show not only that the defendant owed them a duty of care but that the defendant breached this duty of care. Generally speaking, proving this breach will require showing that the defendant knew about the hazard on the property, or that they should have known about the hazard on the property, and that they failed to take appropriate action to prevent foreseeable harm.
Demonstrating the foreseeability of harm is often an important lynchpin in a slip and fall personal injury case. Property owners are expected to take reasonable measures to ensure their premises are safe for legitimate visitors; they are not expected to be fortune-tellers. An experienced personal injury attorney handling a slip and fall case will often go to considerable lengths to establish either that the defendant was aware of the conditions on the property that precipitated the plaintiff’s accident and should have recognized that these conditions posed a risk – or, in cases where the defendant contests their knowledge of the hazardous conditions, a personal injury lawyer may collect and present evidence to show that the defendant should have been in a position to be aware of the conditions and that a reasonable person could have expected those conditions to increase the chances of an accident similar to the one suffered by the plaintiff.
Element #3: Causation
A property manager may be aware of any number of potentially hazardous conditions on the premises for which they are responsible. They may even neglect to take appropriate action in light of the risks posed to visitors. For the plaintiff in a slip and fall case to prevail in court, however, they will need to show that a specific breach of the defendant’s duty of care led directly to the accident in which the plaintiff sustained their injuries. If a shopper slips on an uneven floor in a store they are visiting, it may be the case that the store owner was aware the floor was uneven and could or should reasonably have predicted that this unevenness might increase the chances that visitors might trip – but if the shopper takes their slip and fall case to court, they will need to prove that the poorly maintained flooring, rather than personal clumsiness or momentary distraction, caused their fall or contributed to the severity of their injuries.
Element #4: Damages
Personal injury lawsuits are generally pursued in order to recover compensation for “damages” – the costs, both economic and non-economic, allegedly incurred by the plaintiff as a result of the tort. In lawsuits over personal injuries due to slip and fall accidents, the “damages” element will typically require careful calculations regarding the total costs of medical care resulting from the injuries sustained in the accident; some of these costs may be projections, if there is reason to expect that the accident victim’s injuries will require further medical intervention or management in the future. Damages may also include calculations for wages lost due to time missed from work while recovering or while seeking medical treatment. If the injuries are expected to limit the individual’s earning capacity, estimates for the total cost of that estimated reduction may be included as well.
Because not all of the harms an individual suffers from an injury are economic, the jurisprudence informing personal injury law makes room for accident victims to pursue compensation for some types of non-economic damages. The criteria for proving these damages, as well as the amounts that may be awarded if a plaintiff wins their case, vary by state; in New Hampshire, § 508:4-d N.H. Rev. Stat. (2023) makes explicit provision for the award of non-economic damages due to “pain and suffering,” but caps the total amount that may be awarded for non-economic damages in any personal injury case at $875,000.
Seek Help Recovering Compensation for Your Slip and Fall Injuries
If you have suffered injuries as the result of a slip and fall accident that occurred on someone else’s property, you may be able to recover compensation to help cover the costs of your medical treatment, lost wages, and pain and suffering. Individuals who incur personal injuries due to slip and fall accidents can easily find themselves at a loss as they seek to navigate the settlements offered by insurance companies and evaluate the strength of their case, should they go before a judge. Speaking with an experienced premises liability attorney in your jurisdiction may help to put your mind at ease. The personal injury team at Friedman & Bresaw, PLLC offers free case evaluations, so call (603) 707-4800 to schedule a meeting to discuss your situation.
