The Two Defenses
After 30 years of helping injured people get back on their feet, McKibben Shaw Law has noticed two recurring defenses used by landowners in litigation over and over again:
Notice and Notice.
Wait, you say, that looks like only one defense, right? How can that be two separate defenses?
Well, the answer is simple. A landowner will typically blame the injured person for falling for not noticing the unreasonably dangerous condition of the land himself or herself and/or the landowner will argue that the unreasonably dangerous condition did not exist for a significant period of time preventing it from noticing 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!
The Law of the Restatement
Furthermore, Indiana law on slip and falls consider the law of the Restatement, 2d., Sec. 343 (a law book written by scholars and others nearly 50 years ago) to be important. 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.
Injured Person Failed to Notice the Dangerous Condition
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 trick line of questioning by defense attorneys.
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.
The Landowner Didn’t Have Time to Discover the Dangerous Condition
This type of defense is also common in slip and fall cases.
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 McKibben Shaw Law from the comfort of your home.
We Get You Back on Your Feet.