As a slip, trip and fall case proceeds towards litigation the defendant or their insurance company is likely to raise several defenses. These defenses are an attempt to prove that they are not at fault for the injuries. Three of the most common defenses are: 1) that the danger or issue was open and obvious; 2) that the defendant did not know about the issue or was not put on notice of the danger; and 3) that the injured party was either completely or partially at fault for their injury.
Please continue to read below for a short description of each of these defenses and look back next week for an article detailing ways around these defenses.
Open and Obvious
The open and obvious defense is asserted by the defendant or their insurance in almost every slip and fall case in Minnesota. The logic behind this defense is that the injured party should have observed or known of the dangerous condition. The defendant then will argue that because of this knowledge, the plaintiff should have avoided the danger or taken precautions in navigating around it.
An example of this would be someone slipping on a patch of ice in the middle of a sidewalk after they had first observed the ice patch from a distance. This is especially relevant in Minnesota because of the icy/slippery nature of Minnesota winters.
It is also worth noting that the standard for an open and obvious defense is whether the condition which caused the personal injury was objectively open and obvious as opposed to subjectively open and obvious. This means that an average person in the injured party’s shoes would have known of the condition, not whether the actual injured party knew of the condition.
Under Minnesota law, the at-fault party must have known of the dangerous condition in order for them to owe a duty to the injured party. However, if they failed to “reasonably inspect” the property for these dangerous conditions than the notice requirements are irrelevant. There are two types of notice:
- Actual Notice – this occurs when a party knows about a condition because of an action or an observance. An example of this would be an at-fault party observing an ice buildup on the stairs out of an apartment complex. They would be considered to be on actual notice because they actually knew about the condition.
- Constructive Notice – this can be established by showing that the dangerous condition had been around for such a period of time or so regularly that the defendant should have known about it. An example of this would be a parking lot that froze every winter for the last thirty years. The defendant would be considered to be on constructive notice of the dangerous condition.
Owners of a premise have a duty to “reasonably inspect” the premise to identify dangerous conditions such as ice accumulation or spills involving slippery substances. If the at-fault party has not inspected the property than the other notice requirements are irrelevant.
Basically, the defense of comparative fault is the defendant or insurance company’ attempt to place the blame on the plaintiff for the slip or trip and fall. They are asserting that despite some negligence by the defendant, it was ultimately the injured party’s actions that caused the injury.
An example of this would is the claim that an injured party did not wear the correct shoes (heels as opposed to snow boots) or that an injured party did not navigate in a safe way (running on ice when there was a clear sidewalk next to the ice). This defense is notable because even if it does not completely defeat the claim it can reduce the amount the injured party can obtain by the percentage of fault attributed to the injured party.
How We Can Help You
The skilled personal injury lawyers at Sand Law are experienced in handling slip and fall cases in Minneapolis, St. Paul, and throughout the greater twin cities area. Please feel free to contact us by phone, online, or stop into either one of our St. Paul or White Bear Lake offices for a free consultation.