When Should You File a Slip and Fall Lawsuit?
Understand the timeline and factors for filing a slip and fall lawsuitBy Canaan Suitt, J.D. | Last updated on May 2, 2023
Use these links to jump to different sections:
- How To Prove a Slip and Fall Claim
- When to File Your Lawsuit
- How To Prepare for a Slip and Fall Case
- Questions for a Premises Liability Attorney
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
- Grocery and department stores
- 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:
- Broken bones
- Concussions and traumatic brain injuries
- Spinal cord injuries
Depending on your injuries, you may need significant medical attention, 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 bring a lawsuit. Is it worth it? 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 the factors to consider before pursuing a lawsuit. Beyond the general factors presented here, it’s best to speak with a personal injury lawyer about your particular case for the best outcome.
How To Prove 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.”
The Elements of Negligence
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.”
Note that State Laws Vary
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.
When to File Your Lawsuit
Generally, it’s best to pursue legal action sooner rather than later. Of course, some plaintiffs don’t realize they need to take legal action until a while after the 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.
How To Prepare for a Slip and Fall Case
If you’re considering legal action, it’s essential to take steps that will help ensure your success. Epstein recommends the following steps.
Get Medical Attention
“If a person’s injured, first and foremost they need to get medical treatment,” says Epstein.
Report the Accident and Try to Gather Evidence
“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.
Retain a Lawyer Sooner Rather Than Later
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.
Questions for a Premises Liability Attorney
An experienced premises liability attorney can make a big difference in your slip and fall lawsuit.
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.
To get the most out of a consultation, ask informed questions such as:
- What are your attorneys’ fees?
- What are your billing options?
- What legal fees will be involved in bringing a claim?
- What is the statute of limitations in filing a lawsuit?
- What are the chances of settling before going to trial?
Once you have met with a premises liability lawyer and gotten your questions answered, you can begin an attorney-client relationship.
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