How to recover damages in a West Virginia slip-and-fall accident
When you fall and can't pay up
on October 19, 2017
Updated on March 22, 2022
Slip-and-fall accidents belong to a larger group of personal injury claims called “premises liability.” According to a 2013 decision by the West Virginia Supreme Court of Appeals, if a premises owner invites members of the public onto its property where there is a known hazard, it must “take reasonable steps to ameliorate the risk” posed by said hazard “where it is foreseeable that harm is likely to result.”
Put another way, while an owner is not liable for every accident that occurs on their property, they are responsible for failing to take reasonable steps to correct a known problem that results in a slip-and-fall injury.
Proving a Slip-and-Fall Case
Just because you slip on a puddle of water at the grocery store, fall, and break your leg, that is not enough to recover damages from the store owner. First, you must prove the owner had “actual or constructive knowledge” of the hazard and failed to do anything about it. “Constructive” knowledge means the owner should have known about the hazard through the exercise of due diligence.
“The first thing is, you need to make a claim right then and there, even if you don’t necessarily feel hurt. That sore spot might develop into something, or it might go away,” says Guy Bucci, a personaly injury lawyer at Bucci Law Firm in Charleston. ”If you put the store management on notice of the claim, it will trigger the requirement to preserve the video. A video is much more helpful, and it immediately gives you something strong to work with. And, if you’ve got a smart phone, you should be taking pictures while you’re there.”
Second, in slip-and-fall cases, a property owner only has a legal duty of care to people actually invited onto the property. This means you generally cannot recover damages if you were trespassing at the time of your accident. Even if you were in a building that is usually open to the public, if your accident occurred in an area that was clearly marked “restricted” or “no trespassing,” a West Virginia court may decide you were trespassing.
What If the Victim Knew About the Hazard?
Prior to 2013, West Virginia law often barred recovery in slip-and-fall cases on the grounds that a hazard was “open and obvious.” In 2013, the Supreme Court of Appeals abolished this rule. The case involved a man who fell down a set of wooden stairs at a shopping center. The stairs lacked handrails, in violation of local building codes.
The store owner argued that under then-existing law, it was not liable for the man's injuries since the lack of handrails was “open and obvious” to him. The Supreme Court of Appeals determined this was no longer an appropriate legal standard. Instead, the Court said that “a jury may consider the obviousness of the hazard in determining the comparative negligence of the plaintiff.” So today, a West Virginia court will not automatically reject a slip-and-fall claim based on the nature of the hazard, but it will consider the plaintiff's relative knowledge in deciding how much to award in damages.
Bucci estimates that half of slip-and-fall calls he receives lead to an interview, and approximately half of those lead to a case. If you think you've got a case, reach out to a reputable West Virginia personal injury attorney.