What can a lawyer use against you in a Slip and Fall Accident?


A story of spilled milk…

In 2001, Richard Ortega went to Kmart for groceries. He slipped on a puddle of milk and went home with an injured knee.

During his court case, a Kmart manager took the stand and testified that it is Kmart policy that an employee should walk down that aisle every fifteen to twenty minutes – specifically to look for spills.  That branch did not keep a record of when the aisle was inspected for spills, and therefore, the jury found in favor of Ortega.

Kmart appealed, saying that this was not ‘constructive notice.’ They noted a plaintiff should not just be able to demonstrate that the site had not been inspected – it was not enough!  

The Appeals court affirmed the jury’s decision. It was Kmart’s policy to look for spills, and the existence of the system was enough: in this case, to rule in favor of Ortega. 

Richard Ortega was lucky. He was able to prove that his injury was because of the negligence of Kmart management. This is not always an easy thing to do. Kmart knew, so they tried to get the ruling overthrown in Appeals court.  

Court cases can get ugly. 

The defense will always argue against your claim and will try to minimize it.   They will try to find other reasons for your injury.  

That is why it is so vital in a personal injury case that your lawyer (and you) can prove that your injuries came from the accident and that the damages you seek are relevant to the accident itself.

So, what common tactics will lawyers use against you in a slip and fall accident?

Let’s look at four possible routes that they might go. 

Common resistances in slip and fall accidents used by defense attorneys

1. Assumption of Risk: You knew what you were doing’

According to this defense, the other party’s lawyers will argue that the plaintiff knew his actions were risky, but that he kept on doing what he was doing.  

The essence of the argument is, yes, there was conduct by the defendant that could be seen as negligent, but the plaintiff knowingly proceeded with what he was doing.

Paintball is risky’

Christine McCune went to play paintball at the Myrtle Beach Indoor Shooting Range.  

She signed a waiver before playing where she absolved the range from all liability – unless the shooting range were grossly negligent, of course. Christine received a mask before playing, but it was loose and did not fit well. She complained, and an employee tried to fix it, but it did not work. She kept on playing.  

Unfortunately, the mask was caught on a branch of a tree, raised off Christine’s head, and a paintball pellet hit her in the eye. It caused her to be legally blind.  

She sued the shooting range, saying that they were negligent and liable for her accident. The shooting range retorted, saying that Christine signed the release, barring her from making any claims. 

The trial court agreed, but the plaintiff appealed. The Appeal Court affirmed what the trial court said.  

Christine knew playing paintball was risky.  She signed the waiver. There was no ‘gross’ negligence, although the mask was faulty.  Christine kept on playing even though the employee could not fix the mask.   Under these circumstances, she could not claim anything from the shooting range. 

The key question

The critical question under the ‘Assumption of Risk’ defense is whether the perceived danger was obvious. It is not always easy to determine!

In this case, the shooting range argued that the risk of playing paintball was obvious. The defendant even signed a waiver that she understood.   Furthermore, she chose to play on even when she knew that the mask was loose and did not fit well. 

2. The ‘Comparative Negligence’ –defense

‘You should have known.’

In this defense to your claim, the other party’s lawyer will argue that you are responsible for what happened to you. They can also try to put some of the blame on you.

An obstacle course

The Ramada Hotel build an obstacle course on their grounds. (The case brief does not tell us for what reason.)   Peggy Coleman was up for the challenge! 

She had to climb a playground slide backward – up the shute, then down the stairs. The slide was in good repair and presented no danger as far as anyone could see.  

Peggy started successfully but slipped and fell from the stairs even though she was holding on carefully to the handrails. She broke her ankle and subsequently sued the hotel for failure to warn her of the dangers and for the negligent operation of the obstacle course.

She lost.

The defense lawyers argued that Peggy chose to participate in the obstacle course. She watched as the person in front of her climbed the slide.  The fact that she was careful in descending the stairs showed that she was aware that she could fall.   She knew what she was doing.

3. ‘You are trying to trick us.’

In another scenario, a defense lawyer may tell the court that you are claiming for injuries that were not caused by your slip and fall. It happens!

· In a recent case, a woman was given a suspended sentence when she claimed she fell into a pothole and sustained an ankle injury. In reality, she was trying to catch her neighbor’s dog while she was drunk, and that is why she fell.   

· In another case, a cyclist claimed that he fell into a maintenance hole while cycling and that he hurt his elbow.  Evidence revealed later that he fell off his bike, trying to mount a curb.  The man had to pay back all costs incurred to defend the bogus claim.

This is a valid defense in lots of cases. There are schemers out there that will try anything for a payout. However, the opposite side may try this defense even if your claim is valid. 

4. The ‘I am not responsible’ defense

The last defense a lawyer can use against you is this one where they argue that the other party (such as the property owner) knew nothing, and there is no way that he could have known.

To hold anyone responsible, your legal defense team must be able to show that the person knew about the dangerous condition and that he failed to do anything about it.

If a reasonable time had gone by, though, and the property owner did not do anything, they can be sued for damages.

Macaroni Salad, anyone?

Flora Gonzalez was shopping with her family at Wal-Mart. She slipped and fell on some cooked macaroni salad near the cafeteria and injured her back, shoulder and knee. She sought damages from Wal-Mart.

Flora and her lawyers were able to prove that the macaroni salad on the floor was already dirty with shopping cart marks and footprints on it. It was clearly on the floor for a while. Flora was awarded $100, 000 in damages.

On the second appeal, however, the Supreme Court found that the opposite can also be true. 

It is not to say the macaroni was on the floor for a long time.  It might just have been that that aisle got heavy traffic and that the dirt got on the macaroni within minutes. 

The Court found that there was no constructive evidence that Wal-Mart could have known about the spill for a reasonable time to clean it up quickly.

WalMart won the case, and the ‘I am not responsible’ defense was successfully implemented.


Why should you know about these legal defenses?

If someone else played a role in your slip and fall accident or the causing of your injury, the person or the business should be held liable for your loss.

However, even if someone else was at fault, they will often try to avoid liability.  It is good to know what these parties and their lawyers would do to lessen the burden of responsibility so that you and your legal team can prepare.

Some lawyers will argue anything, regardless of the evidence.

  • It is, therefore, a good policy to take pictures of where your slip and fall accident happened and get the contact details of eyewitnesses.
  • Write down precisely what happened as soon as you can– or get the witnesses to do so!
  • Also, keep a copy of every piece of paper concerning your diagnosis.

If you do this, you will have an easier time proving your case.

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Court cases:

  • Ortega v. Kmart Corp. Supreme Court of California. 36 P.3d 11 (Cal. 2001)
  • McCune v. Myrtle Beach Indoor Shooting Range, Inc. South Carolina Court of Appeals. 612 S.E.2d 462 (2005.)
  • Coleman v. Ramada Hotel Operating Co. United States Court of Appeals for the Seventh Circuit. 933 F.2d 470 (1991)
  • WalMart Stores, Inc. v. Gonzalez. Supreme Court of Texas. 968 S.W.2d 934 (1998)