If you are an old movie and classic TV buff, you likely enjoy the vintage comedies. The ne’er-do-well hero invariably trips over something and splatters himself all over the floor or sidewalk in an elaborately choreographed fall in front of a horrified, but secretly amused, group of spectators. You probably add your own snickers to their scripted ones. In real life, however, slip-and-falls are no laughing matter.
As the Mayo Clinic notes, falls are the leading cause of traumatic brain injuries. When your head hits the floor, sidewalk, etc., the force of the blow causes your brain to “slosh around” inside your skull, thereby injuring its delicate cells, tissues and nerves. Depending on which part(s) of your brain you injure and the severity of those injuries, you could be disabled for life.
Your children and parents are at especially high risk of sustaining a TBI when they fall. Per the American Speech-Language-Hearing Association, TBIs are the leading cause of disability and death in children under the age of four and adolescents between the ages of 15 and 19. Over half a million kids receive emergency room treatment for these injuries each year, many of whom must be hospitalized. Seniors are likewise at high risk. In a recent five-year period, 142,000 of them received emergency room TBI treatment, 81,500 of whom had to be hospitalized and 14,300 of whom ultimately died from their injuries.
New York law requires property owners and operators to use “reasonable care“ to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable.” Since there is no one-size-fits-all definition of reasonable care, judges and juries in personal injury lawsuits based on premises liability focus on whether or not the property owner or operator knew or should have known about the hazardous condition and what steps, if any, (s)he took to remove, repair or warn of it.
Proof and Damages
In a premises liability case, you must be able to prove the following three things:
- You were on the premises lawfully or, if you were trespassing, the owner knew it.
- The owner and/or operator negligently allowed an unsafe condition to exist on the property.
- The owner and/or operator’s negligence caused your injury.
Assuming you can prove these things, you can receive the following damages:
- General damages – the non-economic damages resulting from your injury
- Special damages – the actual costs resulting from your injury
- Punitive damages – additional damages to punish the premises owner and/or operator if they acted egregiously, such as by willfully, wantonly, or recklessly failing to repair or warn of the hazard that caused you to slip and fall
New York is a comparative fault state, meaning that you must use common sense in assuring your own safety. Consequently, the jury will consider such factors as the following:
- Were you on a part of the property where visitors weren’t allowed?
- Were you paying attention to where you were going?
- Were you wearing inappropriate footwear?
- Did you ignore barriers around the hazard?
- Should the hazard have been obvious to you?
If the jury determines that you were partly to blame for your injury, it will reduce your damage award by the percentage of your own “fault.”
If you or your child or parent suffers a slip-and-fall on someone else’s property, please call Richard A. Dubi toll-free at 833-FOR-DUBI (833-367-3824).