Slip and Fall and Comparative Negligence - Mazow

Robert Hartigan of the Law Office of Mazow McCullough talks with John Maher about comparative negligence. This is when the victim is proven to be partially responsible for the accident. He explains how it can affect the outcome of their case

John Maher: Hi, I’m John Maher and I’m here today with Robert Hartigan of the Law Office of Mazow McCullough. Today we’re talking about slip and fall and comparative negligence. Welcome, Robert.

Robert Hartigan: Hi, John. Happy to be here.

What Is Comparative Negligence?

John: Great. So Robert, what does comparative negligence mean? And specifically in a slip and fall case.

Robert: So comparative negligence is looking at the fault of the plaintiff, the person who was injured and comparing that with the percentage of fault of the defendant, the person who allegedly caused the incident.

What Should You Consider in a Slip and Fall Case?

John: Okay. And so what are some things to consider when attempting to collect for injuries from a slip and fall accident?

Robert: So there’s a number of things you need to look at. One, what warning signs the defendant put out to let the plaintiff know that there was a dangerous condition, what steps the defendant took to make sure that the area was safe. Oftentimes you’re going to want to look for video surveillance to help capture what the premises look like at the time of the fall. And witness statements are often critical. So there’s a lot of evidence that you’re going to want to gather the right way to make sure you can build your case.

Examples of Comparative Negligence

John: Can you give me an example of a case where the person who was injured might be found to be at least partially responsible or negligent for the accident?

Robert: Yeah. So let’s say somebody is walking outside, it’s wintertime and they’re in front of somebody’s store and they happen to be wearing flip flops and they slip on the ice and they fall. Arguably, they were negligent for not wearing the proper footwear and that was a cause of them falling.

John: Right.

Robert: Or if somebody was walking in a driveway on someone else’s property and they were in a rush, they were texting on their phone, not paying attention and they slipped on some ice. Again, the argument is that they should have been paying attention and that’s why they fell.

John: Right. And sometimes you’re in a grocery store or something like that and you see those signs on the floor that says “caution wet surface” or something because maybe somebody spilled something and they just cleaned it up. You know, if somebody decides to ignore those warning signs and walk across that wet surface anyway, and then falls, is that a case where they might be found to be partially negligent?

Robert: Yeah, because the defense is going to say, well, you were on notice that there was a slippery surface, you could have gone a different way. You could have walked more carefully. The placement of the wet floor sign itself doesn’t cure the defect. The store still has to take reasonable steps to make sure it’s safe. But again, the plaintiff can still be held negligent for either not paying attention or just disregarding that warning sign.

How Does Comparative Negligence Affect Compensation?

John: And how does comparative negligence affect the amount that land owners are liable for victims’ injuries? And is it a case where they might be found to be equally at fault and so then the victim might only get half of the compensation that they’re looking for or something? How does that work?

Robert: Yeah. So in Massachusetts, let’s say that a slip and fall case went to trial, goes to the jury and on the verdict slip, there would be an instruction as to a percentage of fault and what percentage the defendant was for the accident and what percentage the plaintiff was negligent for causing the accident. And the jury can decide whatever percentage that is for both parties.

So a jury could come back and say it’s 50/50 and how that would impact the recovery for the plaintiff at the end of the trial, the jury came back with $100,000 as the award, the plaintiff would only get half of that which is $50,000.

The Percentage of Fault Assigned to the Victim Reduces Their Compensation

John: Okay. So actually the percentage that you’re at fault becomes the percentage of the award at the end that you get compensated for?

Robert: Yeah. And where it really can become an issue is if the jury finds that the plaintiff was more negligent, whether that percentage was higher than the defendant’s percentage of negligence, and then the plaintiff will recover nothing.

What Happens If the Victim Carries Most of the Blame?

John: Okay. So if you’re more at fault, then that’s just going to cancel the whole thing out?

Robert: Right.

John: You’re not going to get any compensation.

Robert: Correct.

How Can Victims Reduce Their Risk of Facing Comparative Negligence Claims?

John: Okay. What can a slip and fall victim do to try to make their case that the property owner was at fault or more at fault?

Robert: So let’s say you’re involved in a typical slip and fall at a store. You report the incident right away and get witness statements. Often the store says they don’t have a video, but if you can get video, great, if you had somebody that was with you, who can give a witness statement, as far as what happened, that’s very helpful. If the police were called to the scene and you were taken by an ambulance, getting those contemporaneous records are helpful to building the case.

Also once you enter litigation, any sort of sweep logs, mop logs can help, anything to show that the property was supposed to be inspected at certain times, or there were certain steps and actions that the owner was supposed to take at certain times, certain intervals to make sure that the property was safe.

John: Okay. All right. Well, that’s really great information, Robert. Thanks again for speaking with me today.

Robert: Yeah. Thank you.