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Some Insurance Company Defenses in Elderly Slip and Fall Claims

brainerd-injury-attorneys.jpgWhen people over 65 fall, their physical and emotional injuries are usually overwhelming. In fact, roughly half of these fall victims can never live independently again.

Many older people have pre-existing conditions. When falls aggravate these physical conditions, the victims usually receive full compensation for their economic losses. Furthermore, falls scare many older people. A number of them become virtual prisoners in their own rooms. They are so afraid of falling again that they no longer engage in enjoyable activities.

Since the injuries are so severe, compensation is usually very high. As a result, the insurance company pulls out all the stops to reduce or deny compensation in these cases.

Contributory Negligence

The Texas Supreme Court recently revived the old "open and obvious" defense. Tortfeasors (negligent landowners) are not liable for fall damages if the victim tripped over an open and obvious hazard, like a colored wet spot on the floor or a wayward soup can in a grocery store aisle.

But what is open and obvious to a 35-year-old may not be open and obvious to a 65-year-old. At that point, AMD (Age-related Macular Degeneration) has probably set in. As people get older, their irises let in less light, and their vision becomes blurry. Often, the symptoms are so mild that many people do not know they have this condition.

Additionally, it's harder for older people to avoid open and obvious hazards, especially if they do not see them until the last second. Suddenly interrupting their gait may cause them to fall.

Lack of Knowledge

People who own grocery stores, nursing homes, hospitals, and other large high-traffic facilities usually have no idea that there is a wet spot on the floor or another fall hazard. Therefore, insurance company lawyers often try to get these claims thrown out of court.

But victim/plaintiffs can also use the time-notice rule to establish knowledge. Think about a banana peel on the floor. If the peel is yellow, it probably just fell, so no liability attaches. But if the peel is black, it had been on the floor for a while, and an employee should have picked it up.

Assumption of the Risk

One of the go-to insurance company defenses in slip and falls, swimming pool injuries, dog bites, and other premises liability claims has two basic prongs:

  • Voluntary assumption of

  • A known risk.

Neither prong usually applies in elderly fall claims. Voluntary assumption is an affirmative act. People do not assume the risk of a fall injury by walking through a door at a place where they might possibly fall. Secondly, no one expects to fall at a nursing home, grocery store, or anyplace else. These falls occur because of the landowner's negligence.

Despite what insurance company lawyers may claim, a serious fall is usually not your fault. For a free consultation with an experienced personal injury attorney in Fort Worth, contact Herreth Law. Attorneys can connect victims with doctors, even if they have no money or insurance. 

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