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Common Defenses in Slip and Fall Cases
Getting hurt on someone else’s property, such as a slip and fall accident in front of a Boystown store, typically requires filing a premises liability claim with the insurance company. The property owner and their insurer will likely use these common defenses in slip and fall cases to prevent you from getting fair compensation.
Our personal injury law offices are highly familiar with how to win a slip and fall case, making us essential allies for your claim. Contact us today for a free consultation about these defenses and your legal rights.
Comparative Negligence
Illinois uses modified comparative negligence in personal injury claims (735 ILCS 5/2-1116). Comparative negligence means that everyone involved in the suit is considered partially responsible, and if the injured person is more than 50% responsible, they cannot recover damages.
To defeat this comparative negligence defense in slip and fall cases, you must show that you took reasonable precautions to prevent injury.
Open and Obvious Hazard
In a premises liability lawsuit, the defendant may invoke the open-and-obvious doctrine. This defense argues that the typical person would identify the risk and take care to avoid it, even if the property owner did not warn them.
The obvious danger defense was used in the landmark Illinois Supreme Court case Cope v. Doe, which found that the owner of an apartment complex owed no duty after a child drowned in a retention pond because the danger of open water is obvious and children are expected to appreciate it. The court held that no duty existed as a matter of law because the pond was an ordinary body of water presenting an obvious risk.
We can counter open-and-obvious defenses in slip and fall cases by asserting that the property owner must fix issues, even if they are obvious. We can also state that the obvious danger defense does not apply because the risk was not as clear as the property owner claims.
Assumption of Risk
The assumption of risk defense states that the injury victim tacitly assumed the risk of a slip and fall accident by entering the premises. However, the average person does not expect to suffer severe injuries from a fall on another person’s property while performing normal activities, such as walking down the street or leaning on a guardrail. We answer this by showing that an ordinary visitor would not expect to be injured doing something routine on the property, so no meaningful risk was assumed.
Lack of or Inadequate Notice
Another legal defense is that the responsible party lacked sufficient knowledge of the dangerous condition, either because no one informed them or because it was not readily apparent. Witness testimony, such as that of other guests, can help prove that the property owner was given notice.
If the hazard existed long before the accident, we can use constructive notice. This means that a reasonable person would have noticed the problem, like a termite-infested stairway, even without being told.
Foreseeability and Reasonable Care
The Illinois Premises Liability Act states that property owners must take reasonable care to prevent or fix dangerous conditions on their premises, and that this duty applies to foreseeable dangers, not unforeseeable ones (740 ILCS 130/2).
The reasonable care defense argues that your slip and fall case was not foreseeable and that the property owner maintained the premises as any responsible owner would.
We can use maintenance records and other evidence to demonstrate that your accident was foreseeable and would not have occurred if the premises had been in good repair.
Trivial Defects
Even if the property owner knew of problems, they may be able to win a slip and fall lawsuit by raising the trivial defect defense, arguing the defects were not serious enough to cause an accident. We’ll work with expert witnesses, like engineers, to show that these defects directly contributed to your accident and were not trivial.
We can also use the Chicago Municipal Code to prove the defects were unlawful, such as not having securely fastened railings (13-196-570).
Pre-Existing Conditions
In a personal injury case, your medical records will be scrutinized to determine if another condition, like high blood pressure, could have caused you to slip and fall. This can be disproven through a doctor’s testimony, statements from friends and family, and your medical records.
Procedural Defenses
Defenses in slip and fall cases may focus on the legal process rather than disputing whether the slip and fall occurred.
Defendants will use Illinois slip and fall laws to refute your claim, such as arguing that you have sued the wrong individual or that your claim is time-barred by the statute of limitations.
Suing the Wrong Party
Even if you fall on someone’s property, the property owner is not always the one responsible for the accident. You must demonstrate the defendant’s liability, such as having prior knowledge of the issue but failing to act. Other parties, such as manufacturers or property maintenance companies, may also share responsibility under comparative negligence.
Slip and Fall Claims Against Government Entities
The Illinois Tort Immunity Act protects government agencies from lawsuits (745 ILCS 10/). This was seen in Bruns v. City of Centralia, when the city was not held liable for a cracked pavement. In most cases, these cases also have a shorter statute of limitations, typically one year (745 ILCS 10/8-101).
Experienced representation matters here, because a claim under the Tort Immunity Act turns on narrow exceptions such as willful and wanton conduct by a public employee.
Statute of Limitations
The statute of limitations for slip and fall cases in Illinois is just two years (735 ILCS 5/13-202). If you file after this timeline, your case could be dismissed. Contact our lawyers immediately so that we can begin work on your premises liability claim and meet this deadline.
No Dangerous Condition Was Present on the Property
Like the reasonable care defense, the defendant may argue that no hazardous conditions existed or that the conditions didn’t violate any statutes. Our attorneys can use the Chicago Municipal Code and Illinois building standards to argue that the property owner violated codes, such as failing to remove ice and snow in front of their Lower Wacker office building (4-4-310 & 10-8-180).
Liability Waiver
This common defense is used if you were hurt while engaging in a sport, class, or activity. For example, you may fall down a flight of stairs after a dance class at the University of Chicago. We must demonstrate that your injury was not directly connected to the activity and that the liability waiver does not apply to your specific circumstances.
The Plaintiff Failed to Mitigate Damages After the Fall
It is crucial to get medical treatment after a slip and fall accident, as this will counter another tactic by defense attorneys. They may argue failure to mitigate damages, claiming the injury victim did not seek medical attention. Our legal team will use medical records, police reports, and communications to show you sought help after the fall.
The Importance of Evidence
Evidence is essential to recovering a settlement from the insurance company. Our attorneys will carefully gather documents to show liability, document your damages, and verify the facts of the slip and fall case. Some evidence we can use includes:
- Medical reports
- Lost wages, proven by pay stubs
- Medical bills and out-of-pocket expenses
- Photos of the accident scene
- Photos of the property before and after the accident
- Expert witnesses, like doctors and building inspectors
- Testimony from friends, family, and doctors
- Maintenance records and property inspections
The Importance of Hiring a Slip and Fall Accident Attorney
Legal representation can make a significant difference in whether you secure compensation after a slip and fall accident.
You should hire a slip and fall attorney who is familiar with the local statutes and has the resources to gather thorough evidence. Additionally, experienced premises liability lawyers in Chicago can aggressively negotiate with the insurance company and press for a settlement that reflects the full extent of your losses.
We can help file paperwork, gather evidence, evaluate your damages, write demand letters, and represent you in negotiations. As a member of the Illinois Trial Lawyers Association, we can also represent you at the Circuit Court of Cook County if your case is tried.
Let Us Help You Recover Compensation After Falling on Someone Else’s Property
If an insurer has raised one of these defenses against your claim, we will tell you honestly how strong it is and what answering it involves. Free consultation, no fee unless we win. Call 312-800-1534.
To understand common defenses in slip and fall cases hire our lawyers!
Legally Reviewed By
Attorney Jonathan Rosenfeld
The information on this page has been legally reviewed by Attorney Jonathan Rosenfeld, founder and managing partner of Rosenfeld Injury Lawyers LLC, a Chicago-based personal injury law firm. With decades of experience representing individuals injured in slip and fall accidents and other premises liability cases throughout Chicago, Mr. Rosenfeld is dedicated to protecting the rights of injury victims and helping them pursue the maximum compensation available under the law. His extensive legal knowledge and commitment to client advocacy ensure that the information provided is accurate, reliable, and aligned with current legal standards.