The Most Common Defenses in Slip, Trip and Fall Cases

If you are pursuing a slip and fall claim, it’s important to understand what defenses you may come up against in your case.



If you are pursuing a slip and fall claim, it’s important to understand what defenses you may come up against in your case. Property owners who are being sued in a premises liability case will do anything they can to either reduce liability for the incident or avoid it completely. Since most businesses, cruise lines, and property owners will have legal teams on their side, it is important that you, too, have the best case possible prepared to receive compensation for your injuries and damages.


Statute of Limitations


A premises liability case may be dismissed from the very start if you filed it outside of the statute of limitations. These statutes are strictly followed by courts with very few exceptions allowed. All states have laws on the books which put a limit on when you can pursue a certain type of legal case, otherwise known as a statute of limitations. If you wait too long and fall outside of that period, you will be barred from pursuing a legal claim. In Florida, any person who is injured in a slip and fall must file a lawsuit against the property owner within four years from the date of the fall. This does not mean your case needs to be finalized within four years, but you should at least have filed a legal claim within that time to initiate the process.


Comparative Negligence


One of the more common defenses raised in a slip and fall case is the defense of comparative negligence.This defense involves arguing that the injured party is partly or completely at fault for causing the accident. The reason the injured party could be at fault could involve several issues. In situations where the hazard or danger that caused the injury was “open and obvious,” but you were distracted by something else, causing you to fail to notice it, you may be held partially liable for your injuries. Therefore, under the principle of comparative negligence, your award in an injury case would be reduced by the portion for which you were at fault.


Florida happens to operate under the principle of pure comparative negligence. What this means is that your award will be reduced by the percentage of blame you held in the accident, and you will always receive the remaining percentage back. You will receive some amount of your award, even if you are found to be more than 50 percent to blame for your accident. Even if you are 95 percent to blame for your accident, you can still receive five percent of the total award that would have been issued to you.


Lack of Notice of Hazard


Another commonly used defense in slip, trip, and fall cases involves the defendant claiming that they lacked sufficient knowledge of the hazard or danger on their property. One of the required elements for a negligence claim against a property owner in a slip and fall case is that the owner had actual or constructive notice, meaning the owner either knew about the hazard or should have known about the hazard. If it is unclear how long the danger was there and whether enough time passed where a reasonable property owner would have been made aware of it, the defense of lack of notice may be raised.


You may think the issue of notice should be pretty straightforward, but like so many things in the legal world, it is not always so black and white.  Sometimes unforeseen circumstances can be to blame for a hazard, or something can cause a hazard and quickly lead to a fall before any reasonable property owner would have had a chance to be made aware of it. In these types of cases, courts will look at what types of protocols a business or property owner has in reporting and dealing with hazards, as well as periodically monitoring the property to look for hazards. The court will want to look at evidence, including photographs and surveillance videos to see how long the hazard existed and whether the property owner was or should have been made aware of the danger. If they were made aware of the danger, did they fix it or warn people of the hazard in a timely manner?


If your original claim does not provide a sufficient basis to show that the property owner had or should have had knowledge of this danger, the property owner may be able to file for summary judgment or get your case dismissed for failing to state a claim, which is why it is important you provide enough evidence to support all elements of your legal claim. Dismissal and/or summary judgment will end your case before it even has a chance to get before a jury. 


Reasonable Steps Taken Defense


Another defense often raised in slip and fall cases is the reasonable steps taken defense. If the property owner maintains that they did everything they could have done to prevent accidents and injuries, the burden of proof then shifts to the injured party to prove that whatever efforts the property owner made did not meet accepted standards of reasonable care. In these cases, the property owner will be asked how long dangerous conditions were allowed to exist on their property and what measures could have been taken to address them. If the court does not believe that the measures taken by the store were reasonable, this defense will likely fail.


Determining what constitutes a “reasonable step” is a very fact-sensitive determination. If you have been injured in a slip and fall, it is up to you to show that the property owners knew or should have known about the hazard and that they failed to take the reasonable steps to prevent the accident. For example, if a spill occurs at a grocery store, an immediate reasonable step may be to place a sign next to the spill warning customers of the hazard. However, it may not be reasonable for the property owner to simply leave the sign and the hazard there and think that is enough to be a reasonable step to fix the issue. Similarly, if a store has a broken piece of sidewalk leading up to their store, putting a sign next to that spot, warning customers of the issue, may be good for the time being, but eventually, the store is going to need to actually fix the broken sidewalk and eliminate the hazard. They cannot leave it broken forever, claiming that the sign is enough to constitute a “reasonable step” in the event a customer trips and falls on the broken pavement.

Open and Obvious Defense

The property owner may also use a tactic to deflect the claim known as the open and obvious defense. This defense can be raised when the property owners can show that the accident and injuries occurred due to hazards that would have been open and obvious to any reasonable person. Anyone visiting another person’s property has a duty of care of their own to avoid any dangers that are obvious and to protect themselves from harm. However, this defense can fail if the knowledge of the open and obvious dangers is not enough to protect visitors from injury when coming onto their property. Additionally, if the open and obvious danger is something that was created by some type of negligence or malfeasance of the property owner, such as a clear building code violation, this defense will likely fail.

Choice of Ways Defense

If the property owner can show that the slip and fall could have been avoided by you acting differently or by you taking an alternative path, they may be able to successfully raise the “choice of ways” defense. The choice of ways defense assumes that you had at least one other option when coming onto the property and approaching the danger. One of these options would be to encounter the hazard and be injured, and the other option is to avoid the hazard safely and not be injured. If you chose the former, the property owner may try to place some or all of the blame on you for your slip and fall injury. However, if you had no way of knowing which alternative was safer, the court may not allow this defense.

Volenti Non Fit Injuria


Volenti non fit injuria is Latin for “to a willing person, it is not a wrong.” This legal doctrine holds that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury, also commonly referred to as the assumption of the riskprinciple. This defense is very similar to the open and obvious defense. However, this defense is used when visitors to a property are undeterred by dangers, they either knew or should have known about. Translated, volenti non fit injuria means “no injury can be done to a willing person.” This legal doctrine prevents you from recovering damages when you were injured after knowingly putting yourself in a dangerous situation.  This does not mean the property owner is not required to do whatever is reasonable to prevent a danger from occurring, but it does prevent someone from willingly walking into a dangerous situation only to sue the property owner later.


Procedural Defenses


Several other procedural defenses may be raised by the property owner to defeat your claim. For one, you need to name the correct party as the defendant in your action. If you are suing a business, make sure you get the correct entity listed before filing your lawsuit. Proper venue is also important. Make sure you are suing the correct defendant in the correct court. Otherwise, your lawsuit will be dismissed. These types of procedural mistakes can be easily made, which is why we always recommend you work with an experienced personal injury attorney when preparing your claim.


Hiring Experience Matters in Florida Slip and Fall Cases

If you were injured in a slip and fall accidentthat was caused by the negligence or carelessness of a business, contact us today at (877) 372-0817. It is important that you hire an attorney experienced in handling Florida slip and fall cases in order to successfully recover damages.

At Delgado Trial Attorneys, we provide free legal consultations, giving you a comprehensive overview when it comes to recovering damages in your case. Counseling clients through their most challenging times is at the core of our legal practice. We make sure our clients understand the process to eliminate unnecessary stress and anxiety. This is especially true for first time accident victims unfamiliar with the adversarial nature of filing a claim. We believe in ensuring our clients understand exactly what lies ahead, providing them the peace of mind they need for recovery and treatment while we fight for their rights. Call us today at (305) 596-7911 and speak with an experienced Miami slip and fall accident attorney for a free consultation. Virtual sign-ups available.





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