It’s Winter.
For personal injury lawyers like Brian Goldfinger, that means it’s slip and fall season.
In a cold weather climate like Ontario, our personal injury lawyers get calls from a lot of prospective slip and fall clients.
While every case is different, there are certainly common threads in many winter time slip and fall cases which we would like to share with the readership of the Toronto Injury Lawyer Blog.
Brian Goldfinger and the team at Goldfinger Injury Lawyers will hope this knowledge will better prepare you for handling your slip and fall case, along with the barriers to recovery.
1. Injuries are almost secondary to liability in a slip and fall case. In every personal injury case, the Plaintiff needs to establish three elements: liability, causation and damages. In car accident cases, establishing liability can be relatively easy, especially if the police are involved and have charged/convicted the at fault Defendant driver.
In a slip and fall case, there are no independent authorities to assess blame. The police cannot charge a property owner for failing to salt their walkway. Nor can the police charge a grocery store for failing to plow their parking lot or failing to clear the entrance to the store.
For argument sake, we will assume that your injuries are catastrophic. They are the worst in the world, and preventing you from functioning as you did before the slip and fall. We will also assume that your catastrophic injuries are a direct result of the slip and fall. But, in order to have a case, we have to establish liability against the Defendant property owner. Meaning, we have to show that they were liable, or at fault for your slip and fall. Remember: just because you slipped and fell doesn’t mean that somebody has wronged you. We have to establish liability in the form of negligence. No liability = no case; even if you fractured your ankle in the fall.
2. Take photos and get witness names. We have illustrated the importance of establishing liability in your slip and fall case. Part of establishing liability is showing the Court the hazard upon which you fell. It’s not enough to say that the lot was icy, or slippery. We need evidence to prove it! That evidence can come in the form of photos, videos, or independent witness; all of which will corroborate that there was ice on the ground which caused you to fall. Having that corroborating evidence of the hazard which caused you to fall will go a long way towards establishing liability in your case. It can spell the difference between a successful, and an unsuccessful slip and fall claim.
3. Assume video the video cameras don’t work. Brian Goldfinger agrees that we live in a day and age where Big Brother is watching us. Many of our steps can be recorded. But just because we live in such an age, don’t assume that the technology works properly, or at all. Many prospective clients don’t take photos or get witness names (see tip #2 above), because they assume that their fall was caught on tape, and the tape will show that the Defendant property owner is at fault. Here’s a few things to think about when it comes to video tape capturing your slip and fall:
a) The cameras may not be working, or may be decoys to deter thieves. These cameras aren’t meant to capture slip and falls.
b) The video may have been destroyed if no theft or crime was reported that day
c) The camera may have been aimed in a different direction, where it doesn’t catch, or only partly catches the footage of your fall (which is of little help)
d) The actual footage may be of poor quality, and not show or not properly show the hazard which caused you to fall. The footage becomes of less value it shows you falling, but doesn’t show the ice which caused you to fall.
e) The footage, if preserved, belongs to the Defendant property owner. How eager do you think they will be in producing the footage. Things can magically go “missing” or have odd “technical issues” which render such footage useless
4. Preserve your footwear you were wearing when you fell. The footwear you had on when you fell is evidence. After your fall, put it in to a safe bag, or give it to your personal injury lawyer and don’t wear it again until your case has concluded. Should your case go to trial, the Judge and/or jury will want to see your footwear. Photos of the footwear are good. But having the actual footwear there for trial is even better. This becomes more powerful if the footwear are proper winter boots made for winter weather conditions. If you slipped and fell in a high heel shoe on snow and ice, that Judge and Jury will have much less sympathy towards your accident; and perhaps having the footwear at trial may not be such a good idea. In such a case, the lawyer for the Defendant property owner will certainly want those high heel shoes preserved in order to bolster their case.
5. Understand that the Defence will be seeking contributory liability against you. One of the defenses which the property owner will raise is that you were the author of your own misfortune and in some way, shape or form, caused or contributed to the accident. In those circumstances, the lawyer for the Defendant will seek a reduction for contributory negligence or contributory liability from the award. So, if a Judge/Jury awards an injured slip and fall claimant $100,000; but finds them to the 25% at fault; that $100,000 award is reduced by 25% to amount to $75,000. The higher the percentage of contributory negligence, the more money is shaved off the Plaintiff’s award. These set offs for contributory negligence are common in personal injury law, and very common in slip and fall cases. Certainly, the Plaintiff’s argument will be that there was zero contributory negligence on their part; and that 100% of the liability ought to rest on the Defendant.