Pianko Law Group

What You Should Know About Nursing Home Falls

Pianko Law
Pianko Law Group 
September 16, 2021

Coronavirus risks, and the response to the COVID-19 pandemic, have dominated the nursing home safety headlines in recent months. But infectious disease is not the only nursing home safety hazard. It's not even the most common one. Approximately two-thirds of nursing home residents fall every year. Most of these victims are repeat fallers, since these injuries are the most common reason for nursing home admission. As a result, many of these victims never fully recover from their physical and emotional injuries.

These victims, and their families, need and deserve compensation for these injuries. A New York personal injury attorney can obtain compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additionally, and perhaps more importantly, legal actions bring falls out of the shadows and into the light, forcing nursing home owners to change the way they do business and put resident safety first.

Common Fall Injuries

Broken bones are among the most common physical fall injuries. Since many nursing home residents are physically frail, these injuries are often quite serious. Frequently, doctors must use metal parts, like pins, screws, and rods, to reconstruct these shattered bones. Again due to their physical frailty, many of these victims cannot complete the rigorous physical therapy required to regain full function in affected limbs.

Normally, insurance companies cannot use physical frailty or another pre-existing condition as an excuse to reduce or deny compensation in an injury claim. The eggshell skull rule states that defendants take victims as they find them. The nursing home company cannot cash in on a victim's shortcomings.

Fear is the most common emotional fall injury. Frequently, fall victims are so afraid of a repeat fall that they essentially immobilize themselves in their rooms. Unfortunately, this reaction causes their muscles and reflexes to deteriorate, which increases the risk of a subsequent fall.

Duty of Care

Compensation is available if the nursing home owner had a duty of care, the owner knew about the hazard, and a compelling defense is unavailable.

In terms of legal duty, most nursing home residents are invitees in New York. Generally, these individuals have indirect or direct permission to be at the facility and their presence benefits owners. Nursing home residents have explicit permission to be on the property and they, or their insurance companies, reimburse the owner.

Since the relationship is so close, the duty of care is high. Owners usually have a duty of reasonable care in these situations. They must ensure that resident rooms, hallways, exterior walkways, and all other areas of the nursing home are reasonably safe. Furthermore, they must frequently inspect the property and immediately rectify any safety hazards.

The other two categories are licensee and trespasser. Licensees have permission to be on the property, but there is no owner benefit. A nursing home visitor is usually a licensee. Trespassers have no permission, and there is no benefit. A burglar is usually a trespasser. Since the owner-victim relationship is more distant or nonexistent, the duty of care is lower.

Establishing Knowledge

Theoretical responsibility is not enough. Victim/plaintiffs must also establish practical responsibility. And, victim/plaintiffs must establish practical responsibility by a preponderance of the evidence (more likely than not). This low burden of proof often comes into play in circumstantial evidence claims.

Frequently, direct evidence of actual knowledge is available. Examples include prior reports of similar injuries and cleaning reports which mention wet spots or other hazards. Frequently, attorneys find these and other "smoking guns" during discovery. Since this lawsuit phase comes relatively late in the process, it's important not to settle claims too early. The best evidence, and thus maximum compensation, might not be available at this point.

Circumstantial evidence of constructive knowledge (should have known) usually involves the time-notice rule. This doctrine comes from a classic 1911 case, Anjou v. Boston Elevated Railway Company.

Ms. Anjou slipped and fell on a banana peel in a busy train station. Yes, these falls actually happen in real life. Witnesses stated that the peel "felt dry and gritty as if there were dirt upon it." Because of this testimony, the court concluded that the peel "had been upon the platform for a considerable period of time and had been left there negligently by employees of the defendant in violation of the defendant's duty to keep its station reasonably safe for its passengers."

If the peel had been yellow, as if it had just fallen, constructive knowledge probably would not have attached, unless the victim/plaintiff could prove that an employee had seen the hazard.

Insurance Company Defenses

The average injury-related medical bill is over $50,000. Since so much money is at stake, insurance company lawyers usually do whatever it takes to reduce the nursing home's liability exposure. Common defenses in fall claims include comparative fault and assumption of the risk.

In this context, comparative fault is basically a failure to mind your surroundings. Owners are not the only people with a duty of care. Victims also have a duty to watch out for banana peels, wet spots, uneven walkways, and other fall hazards.

However, many nursing home fall victims suffer from Age-Related Macular Degeneration. AMD obscures vision. So, many victims simply cannot see these hazards, especially in a poorly lit room. As mentioned above, insurance companies cannot use this weakness in court, because of the eggshell skull rule.

In these situations, jurors must listen to the evidence and divide fault proportionally between the parties. New York is a pure comparative fault state. Even if the victim was 99 percent responsible for the injury, the defendant is liable for a proportionate share of damages.

Basically these same principles apply in assumption of the risk. This defense usually involves a warning sign, like "Caution Wet Floor" or "Danger Cliff."A sign, by itself, does not immunize property owners. The insurance company must still prove that the victim saw the sign, could read the sign, and could understand what the sign meant. Patrick ran off the cliff despite the sign because he was so stupid he couldn't read the sign. Moreover, a "Danger Cliff" sign on the precipice of a cliff doesn't provide much warning to anyone.

Nursing home fall victims are usually entitled to significant compensation. For a free consultation with an experienced personal injury attorney in New York, contact the Pianko Law Group, PLLC. We do not charge upfront legal fees in these matters.

Related Posts

Does Workers’ Comp Always Cover Job Injuries?

November 26, 2022  •  Maurice Pianko

Let Us Help

If you need legal representation for you personal injury we are here to help. Call us today or click the button below to schedule a free consultation.
Call: (646) 801-9675Schedule consultation
Attorney Advertising; No Attorney Client Relationship or Confidentiality /// This Site is intended to enable readers to learn about Pianko Law Group. The information provided in this Site should not be considered an offer to represent you. This Site may be considered attorney advertising under the rules of certain jurisdictions. Prior results do not guarantee a similar outcome. Use of this Site or of the e-mail links on this Site to communicate with Pianko Law Group or its lawyers does not create an attorney-client relationship between you and Pianko Law Group; no such communication will be treated as confidential and no such communication is guaranteed to be secure. This Site contains general information and may not reflect current legal developments. The Site Content should not be construed as legal advice. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. No aspect of this advertisement has been approved by the Supreme Court of New York or New Jersey.
Copyright © 2024 Pianko Law Group. All rights reserved.
phone-handsetcalendar-fullbubblecrossmenuchevron-up linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram