What Are the Elements of a Successful Slip and Fall Claim?
In order to be successful in any slip and fall or trip and fall accident case, you need to prove negligence. To that end, the most important question that you will be asked is “What caused you to fall?” Your answer to this is the beginning (and quite possibly the end) of any inquiry into a potential fall-down matter.
As a baseline, you must be able to identify the cause of your fall. This is the only way to show that a person or company was negligent for permitting that condition to exist.
A successful slip and fall or trip and fall accident case will be able to demonstrate:
- That a dangerous condition existed and was the cause of your fall;
- That they party responsible for the hazardous situation created it; or
- That they had “notice” of the condition (an awareness that it existed) and an opportunity to make it safe, yet did not do so;
Providing proof that the responsible party either created the condition or knew it existed can be complicated. This does not mean that it is impossible. The moments following an incident are the most important. Grab some photographs of the condition and the surrounding area. Think about what a manager or employee said to you immediately following the accident. It is during these times that people are most genuine, as they haven’t had the chance to consult with an insurance company or attorney.
It is very unlikely that the responsible folks will come out and admit that they created a dangerous condition or that they were aware of it, but it can happen. Regardless a skilled attorney will know the right questions to ask and may be able to elicit an admission during a statement or deposition.
Every slip and fall or trip and fall incident is different, but preserving important pieces of evidence can make or break your case. Some of the most critical pieces of evidence that you can preserve are:
- Photos of the dangerous condition and the area around it; document the scene;
- Audio recordings of a manager or other person who responded to the scene; sometimes
- they will apologize or admit that they created the condition;
- Photos showing your injuries; black and blue marks, lacerations and scrapes can help prove which injuries were caused by this fall;
- Your clothing and shoes; if you fell on a slippery substance like soap or oil, it can be preserved in your clothes to help prove that it existed there;
Some pieces of evidence will not be made available to you. An experienced slip and fall lawyer can help obtain these things through investigation and litigation. Some examples include:
- Surveillance video;
- Witness statements;
- Accident or Incident Reports;
While it is beneficial to have some or all of these types of evidence, the absence of some or all of these examples of evidence does not mean you don’t have a case. It is always worth having a discussion with a top Brooklyn Slip and Fall Lawyer. You may have something worth pursuing.
How Long Should I Expect My Slip and Fall Case to Take?
Every case is different and there is no standard time frame within which a slip and fall case will be resolved. A case will be impacted by the extent of your injuries and how quickly you recover (or don’t recover) from them, the identity of the defendants and their insurance carriers or lawyers, and the Court’s calendar. Even cases that seem straightforward can be dragged out by the insurance company, and sometimes more complicated matters will settle quickly. It depends, but here are some things that a top slip and fall injury attorney will do to move your case:
First comes an investigation. Who are the parties? Can we obtain and preserve important evidence? Are there any witnesses who will help our cause? During the first few months, these items will be investigated by your slip and fall lawyer. Letters will be sent to the property owners, management team, and other relevant parties demanding that they preserve evidence such as video surveillance. Insurance coverage is investigated and sometimes a professional investigator is hired to gather evidence.
All the while, you should focus on getting better. No matter how strong the liability portion of your case is (i.e. can we prove that they are responsible), the value of your case is directly tied to what we call “damages.” Damages measure the nature and extent of your injuries, the type of medical care needed to resolve them, the out-of-pocket/lost earnings components of your case, and your potential need for future medical care. Evidence of damages usually will come in the form of medical records created by your doctor. This is why it is so important to receive appropriate care.
Depending on the extent of your treatment and injuries, it could be 6-12 months before you have a clear picture of the diagnosis and prognosis for recovery. If your treatment is wrapping up and you’ve recovered, we may have an opportunity to resolve your case quickly and reasonably. However, if after this time you are still having issues, contemplating surgery, and remain out of work, we will need to march forward into litigation to maximize your recovery.
In some cases we will immediately file a lawsuit. In others we need to develop our theory of liability through investigation and allow your treatment to evolve. Either way we always have our eyes on pushing the case and obtaining a solid result for you
What Factors Determine How Much My Slip and Fall Case Is Worth?
If you have never been involved in a slip and fall case before, you may expect that your personal injury lawyer will give a potential settlement range at your initial free consultation. This is simply not possible at that time, however, as a true picture of the value of your case is not available until the case is fully developed. A multitude of factors impact the value of your case, but the three most important things that an attorney will consider are (1) liability; (2) damages; and (3) insurance coverage.
Liability is the concept of proving that a person or company is legally responsible for your slip and fall accident. Some say that this is the most important factor related to a slip and fall claim because without liability there is no case. As you might imagine, not every fall will be the responsibility of another. But an experienced slip and fall lawyer will be able to quickly identify potential liability. Generally speaking, in order to prove legal responsibility you would have to show that: (1) a dangerous or defective condition existed and caused your fall; and (2) that the person or company responsible for that property either created the condition or should have known about the dangerous condition and made it safe. Different variables exist but this is the basic framework.
Damages measure what you have lost as a result of this slip and fall injury. There are many factors that go into measuring your loss, but 3 main categories exist: (1) past and future medical expenses; (2) past and future lost earnings; and (3) pain and suffering. Slip and fall accidents can lead to serious injuries, but it goes without saying that not all accidents will lead to a permanent disability from your job or a need for round-the-clock medical care. In fact, most cases involve people whose lives are interrupted and altered but not to that level of seriousness. And the mere fact that you have returned to work after your injury does not mean that you can’t recover for what you’ve lost.
3. Insurance Coverage
Insurance coverage is a little-known (but equally important) factor in this evaluation. Available coverage limits, the quality of the insurance carrier, and something as simple as the adjuster’s attitude toward the case can have an impact on the settlement value. An insurance carrier and their employees will always try to take advantage of an unrepresented individual, which means that you need to have an experienced slip and fall lawyer on your side.
Do I Need to File an Accident Report After My Slip and Fall Accident?
Whenever possible you should report a slip and fall accident so that there is some type of record of the incident. This does not mean that you are prevented from bringing a claim just because you did not report it. In fact, many accidents do go unreported. As long as you have some other proof that it happened, like photographs, a witness, or immediate medical care, you can still bring a claim.
There are certainly advantages to filing a report however. Once reported, the accident may trigger an internal investigation by the defendant. Some companies may have their own incident claim process where they will perform an investigation, take statements, photos, etc and this may ultimately help your case.
As described, filling an immediate report is sometimes not an option. So what should you do if you fell on a broken public sidewalk or in an ice-filled parking lot but didn’t’ get the chance to immediately report it? Within New York City, you should call 311, even if it is the next day. Calling 311 will create a document that is on record with the New York City Department of Transportation. In the case of a broken sidewalk, the Department of Transportation will often assign an inspector to go out and take a look and if there is a code violation, the owner of the property will be issued a violation.
Where Do Slip and Fall Accidents Frequently Occur in NYC?
A slip and fall accident can happen anywhere and everywhere. The possibilities are infinite. That said, here is a breakdown of the most common locations that we see in our day to day practice:
The most common location for a slip and fall (or trip and fall) accident is the sidewalk. Some local governments, including New York City, have statutes in place that require building owners to maintain the sidewalks next to their building. Whether the hazard is a raised or broken up sidewalk, a trap or snare caused by a metal cover or basement door, or improperly cleared snow and ice, the owner of the adjacent property is generally responsible to make these areas safe. But that doesn’t mean the owners keep up with their obligations, and so dangerous sidewalks remain a common cause of a fall down injury.
Apartment buildings are another common location for a slip and fall injury. Landlords often fail to live up to their obligations to keep a building and property safe. A dangerous fall can happen as a result of a broken step, a pothole in a parking lot, a leaking ceiling, or a freshly mopped floor are some common dangerous conditions that will give rise to a case.
Grocery and Retail Stores
Supermarkets, local grocery stores and big-box stores also head up the list of common locations where a slip and fall injury can occur. A leaking freezer unit, an improperly stacked display or a wet aisle floor due to vegetable sprayers may all form the basis of a valid slip and fall claim. These stores see a lot of foot traffic which may also lead to a dangerous condition created by another customer.
Construction sites are filled with hazards and safety risks that can affect pedestrians and construction workers alike. Workers on these sites often encounter debris and other dangerous conditions that can lead to a fall. Where the work extends across the sidewalk, other dangers such as improperly built or maintained temporary ramps or walkways, or hoses stretched across the sidewalk can present dangers for unsuspecting pedestrians.
What Types of Negligence Frequently Cause Slip and Fall Injuries?
Negligence generally is where the failure to use reasonable care causes someone else an injury or loss. There are countless ways that people can fail to live up to their obligations. Some common scenarios follow:
- Uneven or raised sidewalks;
- Freshly mopped floors;
- A leaking refrigerator or freezer unit;
- A leaking sink or water fountain;
- Snow or ice;
- Potholes or cracked sidewalks or asphalt parking lots;
- Temporary sidewalk ramps;
- Broken/missing handrails and damaged steps,
- Leaking and collapsed ceilings;
- Uneven riser heights on staircases; and
- Poor lighting.
Regardless of the dangerous condition that caused your fall, make sure to protect your rights by contacting a Brooklyn slip and fall attorney today.
How Serious Do My Slip and Fall Injuries Have to Be to Have a Viable Case?
There is no injury threshold to determine whether you have a viable slip and fall case. Even seemingly minor injuries can have value depending on the diagnosis and type of treatment required.
The significance of your case is directly related to the injury diagnosis and course of treatment you receive. If you’ve sustained a herniated disc in your spine that requires 3 months of conservative therapy, the value is significantly less than where the same herniated disc required 6 months of conservative care followed by a series of epidural injections and a minimally invasive discectomy procedure.
Another aspect that affects case value is how your injury affects your everyday life. That same herniated disc may prevent you from lifting heavy things, or make it difficult to put on your shoes or standing for long periods. The torn rotator cuff in your shoulder may prevent you from reaching for a heavy pot, or cause pain when getting dressed. These are relatable activities and bring credibility to your case.
What Should I Do If My Slip and Fall Occurred at Work?
Work-related falls are very common. You likely spend a large part of your day working, and even the most risk-averse people will sometimes encounter a dangerous condition. There is an even greater possibility of a fall at work when you work in a hazardous field or perform a dangerous job such as construction work, factory work, or warehouse work.
Workers are entitled to Workers’ Compensation benefits when a fall happens at their workplace. These benefits cover your medical bills, a portion of your lost wages, and a potential lump-sum settlement amount at the conclusion of your case. Workers’ compensation benefits are automatic assuming you can prove that you were injured in the course of your duties. Nevertheless, coverage is not absolute, as there are exceptions for specific situations, such as being under the influence of drugs or alcohol.
Workers’ Compensation benefits do not provide compensation for pain and suffering. While you are not allowed to sue your employer for negligence, you may have a case against an at-fault third party. You could potentially recover money damages for pain and suffering in that case depending on whether you can prove liability.
Some common examples of these claims are where a field technician for the phone or cable company falls on someone’s property during an install; or where a home health aid gets injured at their patient’s building.
How Much Time Do I Have to File a Lawsuit After Suffering a Slip and Fall Injury?
Your deadline to sue after a slip and fall accident depends on who you are suing. An experienced New York slip and fall lawyer will protect the statute and make sure no deadlines are missed.
If you are suing a private person or private commercial business, you likely have up to three years to bring a lawsuit. This deadline would apply if you were suing a privately owned apartment building, a grocery or big box store, a restaurant, a homeowner, etc.
Where your claim is against a municipal entity the deadline is much shorter. Some municipalities require the filing of a Notice of Claim within 90 days of your slip and fall injury. Then you must satisfy some conditions precedent to filing a lawsuit. Once all of that is satisfied, a summons and complaint must be filed within one year and 90 days of the slip and fall accident.
Shorter deadlines exist for other public authorities, such as the Port Authority of New York and New Jersey or the NYC School Construction Authority. In addition to the requirements of a Notice of Claim, a summons and complaint must be filed within one year of the slip and fall.
Finally, suing the State of New York is governed by the Court of Claims Act. Under this law, you have two options. (1) You can serve and file a Verified Claim within 90 days of your slip and fall; or (2) You can file a Notice of Intention to make a claim within 90 days of your injury. Then If you properly serve and file the claim, you will have two years from the injury to serve and file a Verified Claim.