After 30 years of helping injured people get back on their feet, Shaw Law has noticed two recurring defenses used by landowners in litigation over and over again:
Notice and Notice.
Wait, you say, what looks like only one defense, right? How can that be two separate defenses?
Well, the answer is simple.
1. “You Should Have Noticed the Problem, Not Us!”
A landowner will typically blame the injured person for falling for not “noticing” the unreasonably dangerous condition of the land.
2. “We Didn’t Have Time to Notice the Problem !”
A landowner/business will argue that the unreasonably dangerous condition of the land did not exist for a significant period of time preventing it from “noticing” it and correcting the condition itself.
In Indiana, all negligence cases involve fault. That means that an injured person must establish the landowner did something that a reasonably careful business or person would not do — or that the business or person failed to do something that a reasonably careful business or person would do to be safe.
A jury must decide whose fault the “accident” or “slip and fall” truly was — and it can divide fault into any percentage it likes, similar to cutting a pizza into various pieces.
An injured person’s recovery can then be diminished or reduced by the amount of fault the jury places upon him or her !
Furthermore, Indiana law on slip and falls considers the law of the Restatement, 2d., Sec. 343 (a law book written by scholars and others nearly 50 years ago) to be important. And that section of the law says that a landowner is not liable if the injured person should have noticed the unsafe condition of the land himself or herself.
1. Defense Trick No. 1 = “You Should Have Noticed the Problem, Not Us” — Injured Person Failed to Notice Dangerous Condition of Land
This means that many landowners will argue in court that the injured person should have been more careful and many cases have been lost with a simple trick line of questioning by defense attorneys:
Q. Did you notice the snow and ice, sir?
A. Yes, I did.
Q. And you know that snow and ice is slippery?
A. Yes, of course.
Q. Then why did you take that risk and step on it? You asked for this to happen, didn’t you?
A. I don’t know what to say…..
This type of questioning by a defense lawyer has been around for ages. And it is very typical. The truly disheartening thing is that many jurors believe this to be an effective defense to a slip and fall injury case. And the Indiana law seems to support this conclusion. Even worse, an injured person can be blamed equally by the defense for the opposite answer, too !
Q. Did you notice the snow and ice, sir?
A. No, I did not.
Q. Well, you knew the weather was cold enough for snow and ice to be present, didn’t you?
A. Yes, of course it was cold.
Q. Then why did you not be more careful and look where you were stepping? You asked for this to happen, didn’t you?
A. I don’t know what to say…..
It appears as though a slip and fall injured person loses either way, right?
WRONG.
Most people do not walk while looking directly down at their feet. In fact, that can be the most unsafe thing to do at times (not looking around at your surroundings). A person should have the right to believe that a landowner will properly maintain its property to prevent a customer or patron from having to stare down at his feet.
2. Defense Trick No. 2 = “We Didn’t Have Enought Time to Notice Ourselves” – Landowner Didn’t Have Time to Discover Dangerous Condition of Land
This type of defense is common in slip and fall cases, too.
Landowners will typically use this defense if the slip and fall happened outside during a storm or snowy conditions. They will argue that it was impossible for them to maintain their property safely while it was snowing or raining and that there was nothing it could do. (Of course, they fail to mention that closing down during inclement weather was possible — after all, schools close down during bad weather because we value the safety of our children more than landowners and businesses value the safety of customers and the pursuit of money).
This defense is also commonly used for fall on water or liquid substances in the aisles of stores. The law in Indiana protects landowners in that it requires a sufficient amount of time to pass so that the landowner could or should have discovered the spill and had time to clean it up.
Either way, “notice” is a big issue in slip and fall cases.
Don’t let an inexperienced attorney ruin your chances of recovery by failing to be prepared for these common defenses.
Hire Shaw Laws Office from the comfort of your home.
We Get You Back on Your Feet.
