Every year, slip-and-fall incidents send over eight million Americans to hospital emergency rooms, making these incidents the leading cause of ER visits in New York. Almost all these victims are treated and released. That could be a good sign or a bad sign.
In general, coming home from the hospital is almost always a good sign. However, that’s assuming doctors have properly diagnosed and treated the patient’s illness or injury. In many slip-and-fall claims, proper treatment is a bit iffy.
These victims often sustain head injuries. Despite clear medical evidence to the contrary, many doctors believe after head injury victims receive fluids and rest, they’ll be fine. But these “treatments” do nothing to address the brain’s trauma injury. When people fall, even if they don’t hit their heads, their brains hit the insides of their skulls. Initial symptoms, like disorientation and soreness, are only the beginning. These victims eventually experience severe injuries which, in many cases, are fatal.
We spoke with New York personal injury attorney Maurice Pianko about the legal issues involved in these cases. He had a lot more to say about a lot of other things, and we’ll try to include those things in another article. But for this post, we wanted to keep it specific.
No one else saw me fall. Will the insurance company take my word for it?
Before I answer this question, let me say one thing, which should be obvious. Insurance companies make money when they collect premiums. They lose money when they pay claims. And, like most other businesses, these companies will do almost anything to avoid losing money. That includes disputing slip-and-fall claims.
Legally, victims have the burden of proof in these cases. They must establish negligence, or a lack of care, by a preponderance of the evidence, or more likely than not. This burden of proof is pretty low, so normally it’s not a problem, especially in a situation like a car wreck, where there’s a police report and whatever.
But in a slip-and-fall claim, there’s usually no police report or other investigation, which means the victim’s testimony often makes or breaks the case. If the victim was seriously injured, that testimony may be suspect. So no, the insurance company won’t take your word for it.
However, that may not matter. I admit my mind wandered a bit during some law school lectures, but I do know about res ipsa loquitur. Jurors may presume that negligence caused an injury if negligence usually causes such incidents and the defendant had exclusive control over the premises. If you fell while you were a guest at someone else’s house, at work, or in a public place, like a grocery store, RIL usually applies.
Moreover, there’s usually some additional evidence. The fall might have been caught on tape, we may be able to find a witness, or the doctor might have chalked up the injury to an “accidental” slip-and-fall.
There was a “Caution Wet Floor” sign near the spill. Do I still have a case?
Maybe so. A warning sign isn’t a get-out-of-jail-free card. Spongebob Squarepants might be able to explain this better than I can.
In this clip, the property owner put a “Danger Cliff” warning sign on the edge of the cliff. It probably would’ve made more sense to put the sign further back, but no one asked me. Anyway, Patrick runs through the sign and falls off the cliff, because he’s so dumb he can’t read the sign.
This issue comes up in the real world as well, but not because the victim isn’t smart. Many people, usually because of age or limited English skills, can’t see warning signs, can’t read them, and/or can’t understand what they mean. Normally, the victim has the burden of proof. But since assumption of the risk, the official name of this doctrine, is an affirmative defense, the insurance company has the burden of proof on each point.
This defense is even harder to prove if the sign only had a text warning. If the sign also had a picture of a person slipping and falling, the insurance company basically only has to prove the victim could see the sign. That’s hard to show if the victim had a vision problem, like age-related macular degeneration.
If I have a pre-existing condition, will the insurance company use that against me?
The insurance company will certainly try to use that against you. These companies do this a lot. Your foundation cracked because you didn’t water it during a drought, you developed lung cancer because you smoked, and so on.
These efforts break a fundamental rule of life which your mother probably taught you: don’t take advantage of people because they’re weak or different. This principle is embedded in New York law, in the form of the eggshell skull rule. If Alice has an eggshell skull, she falls, and she hurts her head, she’s still entitled to full compensation. The insurance company can’t use that against her.
A couple of caveats. First, the comparative fault defense allows insurance companies to use victims’ conduct against them. Second, a New York personal injury attorney must usually prove that the injury aggravated the pre-existing condition, instead of vice versa. That’s especially true in job injury falls. Workers’ compensation has special rules in this area.
You mentioned comparative fault. Can you break that down for us?
Contributory negligence is the go-to defense for most insurance companies in most injury cases, probably because it might be the most effective defense in these matters.
The eggshell skull rule involves previous conditions unrelated to the injury. Comparative fault involves conduct at the time of the fall. Basically, comparative fault shifts blame for a fall onto the victim. Usually, insurance company lawyers argue the victim didn’t watch where s/he was going.
This defense is far from bulletproof. We mentioned AMD above. Some people can’t see hazards, like wet spots or big holes, especially if the room is dark. Furthermore, some people have gait disorders. When they slip, they cannot regain their balance. Instead, they fall.
The law is on your side as well. New York is a pure comparative fault state. Even if the insurance company proves the victim was 99 percent responsible for the fall, the defendant is responsible for a proportionate share of damages.
To learn more about your case, or if you have insomnia, to read all the things we cut from this interview, contact the experienced New York personal injury attorneys at the Pianko Law Group, PLLC. You have a limited amount of time to act.