It happens during every wintry mix. Someone slips and falls on the snow, ice, slush or freezing rain, they get hurt and expect to be compensated for their injuries. However, not all slip and fall injuries are compensable. In fact, when injuries are incurred due to some level of negligence on the part of the injured person, there may be partial or no recovery at all! When is it that you may not be compensated for your injuries? When your fall is the result of one of two legal theories. First, there is the theory of “assumption of the risk”. Second, there is the theory of “contributory negligence”. A third theory provides for partial recovery and is known as comparative negligence.
Following a claim for any such injury and before any insurance company, or jury, gets to the actual value of the case, fault must first be determined. There are two primary ways to look at fault and each State is different. Most States determine whether or not you may recover, in a slip and fall action, based upon this level of fault.
First, there is “assumption of the risk”. The elements that make up this theory are 1. knowledge of the risk of the danger; 2. appreciation of the risk and 3. voluntary exposure to the risk of danger. Click on and look closely at the top half of the accompanying photo, you will notice a woman walking to the right of her vehicle. You will also notice that, by making that choice, she will be forced to walk over a mound of snow to get to the clearly shoveled sidewalk. You will also notice, however, that had she chosen to walk behind her vehicle, and to the left (past the passenger side), she would have, available to her, a totally cleared path leading to the equally cleared sidewalk. Hence, should she subsequently slip and fall, as a result of her choice to climb over the snow mound, she will likely not recover for her injuries. Here, assumption of the risk, occurs when the woman, by choice, voluntarily exposes herself to a foreseen risk, with a full knowledge, appreciation and understanding of an obvious danger. Note that, in this case, there would generally be no one else responsible for her injuries, but herself. Thus, her potential inability to recover, will be based upon the theory that she gave up her right to file any claim once she chose to assume the obvious risk.
“Contributory negligence “, however, bars recovery when the injured party is at fault, for his/her own injuries, in addition to the initial negligent party. In Maryland and the District of Columbia, this means that if the initial negligent party can place just 1% of the blame on the injured party, for their injuries, there will be no compensation – at all! That’s right, the negligent party can be 99% responsible for the injury, but if the injured party played any part, there will be no recovery. Example. Looking at the lower portion of the accompanying photo, you will note that the walkway, to the left and right of the green stair rails to the building, have not been shoveled, thus totally blocking the entryway. Certainly a clear and present danger. However, should the injured person not see that it has not been shoveled, due to walking, texting and not paying attention, and suffer any injury due to his arguably small part in the matter, then there will be no recovery.
This, however, is unlike some States who work under a shared liability theory known as “comparative negligence”, where compensation is provided, less the percentage of the part played by the injured party. In the same example, If it is determined that failing to pay attention was 25% responsible for the injury incurred, then the recovery will be capped at 75% of the total value of the claim.
On the other hand (also looking at the bottom photo), we see what appears to be a negligently snow plowed and covered curb, leaving any pedestrian with no option to gain access to the sidewalk, other than to climb over the mound of snow. In this instance, depending upon how long it’s been since the last snow fall (in this photo – 3 days); depending upon where one is going; depending upon their right to be present upon the land and given the circumstances, it may be found that there was no choice in the matter and the theory of assumption of the risk and/or contributory negligence, may not apply at all. Thus, full recovery, for any injuries sustained, is more likely to be fully compensable. This may also be true in instances of any deliberate, willful or malicious act, on the part of the negligent party.
One last note: Homeowners and independent business owners also beware. Read your city ordinances and/or your HOA or Condo By-laws and rules and regulations. In most places, you are responsible for shoveling the walkway in front of your home. Thus, if someone is injured in front of your home or business, and you have not shoveled, you may be liable for their injuries.
So Who will be at fault, when you slip and fall? As you can see the facts will tell, but in any event, keep in mind that all cases are fact specific and will require careful evaluation by an attorney. In the meantime, however, follow these tips to avoid a slip and fall in the first place: Wear proper shoes; don’t take short cuts and look for safe alternate routes. Pay attention and look where you are going, particularly in this day and age of smart phones and texting. Be mindful of walking upon slippery surfaces while under the influence of alcohol or legal or illegal drugs and allow for a reasonable amount of time for snow removal. Finally, don’t think that a good defense attorney won’t find out if you have a history of making insurance claims or had been drinking, taking a prescription drug or texting during the time of your injury….. Trust me, If I were them, I would!
Thanks for reading. Please note that I am licensed to practice law in Maryland and the District of Columbia. This topic was based off of general laws in and around the State of Maryland and the District of Columbia. Please note that every case is different and nothing herein is intended as specific legal advice. Please feel free to learn more about my practice at www.kelseylaw.net and to seek legal advice when you feel it necessary.
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