Monday, March 29, 2010

Personal Injury Lawsuits - Slip and Fall Actions

By John DiMotto
A second type of personal injury lawsuit that finds it way into a courtroom is the "slip and fall" lawsuit. These cases may involve a situation where a person is in a grocery store and falls on a wet spot on the floor or trips over some items left on a pallet on the floor It may involve a situation where a person falls on ice on private property. It may involve a situation where a person falls in a pot hole while crossing the street.
In these cases, the jury is usually asked to determine six things:
1) if there was negligence on the part of the property owner.
2) if there was negligence on the part of the injured person.
3) if there was negligence on the part of the property owner, was it a cause of the accident.
4) if there was negligence on the part of the injured party, was it a cause of the accident.
5) if both parties were causally negligent, the jury must compare the causal negligence of the parties.
6) regardless of the liability issues, as a result of the accident, what monetary damages has the injured party suffered.
In Wisconsin, the concept of negligence has four elements:
1) Duty of Care
2) Breach of the Duty of Care
3) Cause
4) Damages
In Wisconsin, we follow the minority view on negligence. This view comes from the Palsgraf case. Everyone has a duty of care to everyone in every circumstance. However, foreseeability is necessary component in the equation. If a result is not foreseeable, then a person is not held responsible for the result. Furthermore, even if a result is foreseeable, a party might not be held responsible based on public policy considerations. This may involve a situation where society is just not ready to allow a certain scenario to impose liability because to do so would open up "Pandora's box" -- that is, to allow "A" would mean there is no stopping point and everything would be fair game.
In Slip and Fall cases, the jury usually has to determine if the defendant property owner was negligent in the maintenance of his/her property and if the injured party was contributorily negligent with respect to his/her own safety. Usually the case comes down to the comparison of negligence between the parties. Rarely, is just one party found at fault. Slip and Fall cases are tough cases for plaintiffs because of the aspect of contributory negligence.
In my next blog, I will look at a subspecies of the slip and fall case involving Wisconsin's SafePlace statute.

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