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What Do You Do When Your Slip and Fall Is Blamed On You?

A slip and fall accident, while factually simple, can result in a legally complex personal injury claim. Under California law, an injured party must prove that the owner or operator of a property knew or should have known of a hazardous condition and failed to repair it or to give adequate notice to visitors. However, legal defenses are available that allow a property owner to shift some or all of the blame to the victim and thereby reduce or preclude recovery of damages.

The most common defense property owners assert is that the hazard was “open and obvious.” People who enter a property are under a legal duty to exercise reasonable care and to observe their surroundings. Under this defense, a property owner asserts that the victim was negligent by ignoring outward indications of danger. The defense can be defeated by demonstrating that a hazardous condition amounted to a violation of a statute or code. This requires a personal injury lawyer who will thoroughly investigate the facts and circumstances.

Property owners also commonly raise the “choice of ways” defense, claiming that a victim could have taken a different path to avoid the hazardous condition. To counter this defense, a victim must demonstrate that there was no other route available or that they had no way of determining which path was safer.

A more potent defense that can be raised is “assumption of risk,” by which a property owner claims that a victim knew of the hazardous condition, appreciated the danger associated with the condition but nonetheless continued to travel through the area of the accident. If this defense is successful, a victim is completely barred from recovering damages unless the owner was reckless or grossly negligent or intentionally caused injury.

However, even if a property owner prevails with an “open and obvious” or “choice of ways” defense, an accident victim can still be awarded limited damages. Under California’s comparative negligence law, if a property owner proves that a slip and fall victim’s negligence contributed to the accident, then any potential award is reduced proportionally. So if a victim is 15 percent at fault, they are entitled to recover 85 percent of their provable damages.

At The Law Offices of Richard J. Staskus, we are available to assist you with your slip and fall accident case in the San Jose metropolitan area. Call us at 408-606-9150 or contact us online for a free consultation.

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  • San Jose Office
    25 North 14th Street
    Suite 460
    San Jose, California 95112
    Phone: 408-995-0800