Should I Sue for a Slip and Fall Accident? Five Key Considerations

Understand what you'll have to prove, deadlines, and more

By Canaan Suitt, J.D. | Last updated on November 1, 2023 Featuring practical insights from contributing attorney Michael J. Epstein

Use these links to jump to different sections:

A slip and fall case is a type of premises liability claim. In fact, “[Most] premises liability claims are a slip and fall or trip and fall, says Michael J. Epstein, a personal injury lawyer in Rochelle Park, New Jersey. Slip and fall accidents are common and can occur in many different settings, including parking lots, walkways, grocery stores, and public property 

Falls are often due to steep or uneven surfaces or wet floors. While many slip and fall injuries are relatively minor, they can result in serious injuries and even a trip to the emergency room. Injuries include: 

Depending on your injuries, you may need significant medical attention and face long-term medical bills and time away from work. If you or a loved one has suffered a fall, you may be wondering if you should take legal action. Is it worth it? And when should you file a lawsuit?  

If successful, a lawsuit can result in compensation that covers both your economic and non-economic losses. However, proving liability for a slip and fall can be difficult. Litigation can also be expensive and a significant time commitment. This article will explain five key factors to consider before pursuing a lawsuit.

What you can get in a premises liability case is what is reasonable and fair compensation for the injured party’s harms and losses. It’s not an award; it’s compensation to make the injured person whole… [An injured person should contact a lawyer as soon as possible] so the lawyer can protect and preserve the injured person’s rights, including putting the defendant on notice that there may be a claim and that the evidence should be preserved.

Michael J. Epstein

1. Understand What You Have to Prove in a Slip and Fall Claim 

Premises liability claims “arise out of a situation where a person is injured on someone else’s property as a result of the property owner’s negligence,” says Epstein. Negligence generally means there’s a “dangerous condition on the owner’s property that is not fixed or discovered when it should have been, and it leads to a person falling and getting injured.” 

There are four elements to a negligence claim. 

Element 1: The Duty of Care 

“Any negligence case starts with the question: Did the defendant have a duty to take action or not to take action with respect to the other party?” says Epstein. In premises liability cases, owners are responsible for taking reasonable steps to eliminate dangerous or hazardous conditions on their property.

But what are “reasonable steps”?  

The answer varies depending on the type of property or business involved and the state laws where you live. Typically, what is reasonable is determined based on the type of property and property owner. For example, Epstein notes that in New Jersey, if you’re a “single-family homeowner, and someone is injured on your sidewalk, but you never put the sidewalk in or repaired it, there’s generally no liability.”  

However, “if you’re walking at a strip mall and… there’s a raised slab of sidewalk that catches your foot, [causing you to fall and be injured], the property owner of the strip mall… would be liable for allowing a dangerous condition to exist for their [customers],” he says.  

Element 2: Breach 

Breach means the owner failed in their duty of care toward the injured person. Depending on your state law and situation, you’ll generally have to prove one of the following:

  • The owner should have known about the dangerous condition;
  • The owner did know about the dangerous condition but didn’t fix it; or
  • The owner caused the dangerous condition. 

Element 3: Causation 

The owner’s omission or commission of an act is what caused your injuries, as opposed to some other factor that the owner had nothing to do with. 

Element 4: Damages 

The owner’s breach of duty actually harmed you. If there was a raised sidewalk that tripped you, but you weren’t injured, there are no damages involved. “What you can get in a premises liability case is what is reasonable and fair compensation for the injured party’s harms and losses,” says Epstein. “It’s not an award; it’s compensation to make the injured person whole.”

2. Be Aware of How Your State Apportions Liability for Personal Injuries

Personal injury laws vary from state to state in how they assign liability. For example:

  • What if your injuries aren’t entirely the property owner’s fault?
  • What if your injury was partly your fault?
  • If you’re partly at fault, can you still get damages in a lawsuit, or will you be barred from recovery? 

States differ in how they address these questions. Some completely bar recovery if you are partly to blame for your injuries. Others allow a modified or reduced form of recovery. For example, if the court concludes that you were 25 percent responsible for your injuries, you can only recover 75 percent from the defendant in the lawsuit.

Knowing the negligence laws in your state is important for estimating the compensation you might be entitled to through a lawsuit.

3. Know the Deadlines for Filing a Lawsuit 

It’s best to pursue legal action sooner rather than later. However, some plaintiffs don’t realize they need to take legal action until months or years after an accident. Some injuries from a fall, such as brain injuries, aren’t apparent until much later. Regardless of your situation, it’s essential to be aware of the deadlines for bringing a lawsuit in your state.  

Every state has a law called the statute of limitations that sets the time limit for plaintiffs to bring a lawsuit after their injuries. Statutes of limitations vary depending on the state and type of case but generally range from 2 to 6 years.  

If you bring a lawsuit, it’s imperative to file it before the statute of limitations is up. If you miss the deadline, you are barred from filing a case in the future and cannot recover damages. In most premises liability cases, including slip and falls, the property owner’s insurance company will compensate you for your injuries. You may have to balance negotiations with the insurance company with the timeframe of filing a lawsuit.  

If the insurance company delays or does not pay out, it is a good reason to pursue legal action. Make sure you are within the legal timeframe.  

4. After Seeking Medical Attention, Report, and Gather Evidence

“If a person’s injured, first and foremost, they need to get medical treatment,” says Epstein. Once you have obtained medical attention, you

“In a premises liability case, any lawyer is going to need evidence of the dangerous condition [that caused the injury],” Epstein says. He adds that you should try to get evidence as soon as possible since the dangerous conditions that caused your injuries could “be changed after the fact.” This would make proving a case very difficult.

For example, say someone is injured because of a raised sidewalk. No one notifies the defendant that there’s going to be a lawsuit. Meanwhile, the defendant already had plans to fix the sidewalk the week after the accident.

In this sort of situation, Epstein says, “the dangerous condition could be altered [so that] you can’t evaluate it. That’s a problem.” Epstein recommends reporting the incident as soon as possible. 

“If you’re injured, have someone… take some pictures of the dangerous condition as soon as you can. Try to preserve the evidence,” he says.  

5. Consult with an Experienced Premises Liability Attorney

Injured individuals should get legal help as quickly as possible “so the lawyer can protect and preserve the injured person’s rights, including putting the defendant on notice that there may be a claim and that the evidence should be preserved,” says Epstein.  

Many slip and fall attorneys provide free consultations to learn about your case. These free case evaluations let you get helpful legal advice and decide if the attorney or law firm meets your needs.  

Visit the Super Lawyers directory to find an experienced premises liability attorney in your area. For additional information about this legal area, see our overview of premises liability and related content.

What do I do next?

Enter your location below to get connected with a qualified attorney today.
Popular attorney searches: Personal Injury Real Estate

Find top lawyers with confidence

The Super Lawyers patented selection process is peer influenced and research driven, selecting the top 5% of attorneys to the Super Lawyers lists each year. We know lawyers and make it easy to connect with them.

Find a lawyer near you