Defenses in Slip and Fall Lawsuits

Slip and fall accidents can give rise to legal claims when property owners fail to maintain their premises or warn visitors about potential hazards. Property owners often raise defenses aimed at reducing or eliminating liability for a visitor’s injuries. These defenses vary by state and can depend on local laws, court decisions, and the facts of each case.

Comparative Negligence

A frequently raised defense is that the injured person bears some or all of the responsibility for the slip and fall. A property owner may argue that the plaintiff failed to notice an obvious hazard, was distracted at the time of the fall, or disregarded visible warnings. In a pure comparative negligence system, a plaintiff’s damages may be reduced by their percentage of fault but are not entirely eliminated unless the plaintiff’s fault is found to be 100 percent. In states with modified comparative negligence, plaintiffs cannot recover if they are found to be at least 50 or 51 percent at fault, depending on state law. In contributory negligence jurisdictions, any degree of plaintiff fault can bar recovery completely.

Open and Obvious Hazards and Assumption of Risk

The open and obvious defense asserts that a reasonable person would have recognized and avoided the hazard. If the dangerous condition was visible, and the plaintiff failed to act with appropriate caution, a court may find that the property owner is not responsible for resulting injuries. Assumption of risk occurs when the injured person knew or should have known about a danger yet proceeded voluntarily. The outcome often depends on factors such as how clearly the hazard was presented and whether avoiding it was feasible under the circumstances.

Inadequate Notice

Most slip and fall cases require proof that the property owner had either actual or constructive notice of the dangerous condition. Actual notice means the owner knew about the hazard. Constructive notice means the hazard existed long enough that a reasonable and diligent property owner should have discovered and addressed the danger. A defense often arises when the owner argues that an insufficient amount of time passed to learn of and correct the problem. Without evidence of the duration of the hazard’s presence, many courts are inclined to dismiss the case because the element of notice has not been met.

Causation and Foreseeability

Property owners sometimes argue that, even if a condition was unsafe, the harm suffered was not foreseeable. This defense centers on whether the property owner, acting reasonably, should have anticipated that the specific injury was likely to occur. A particular spill or structural defect that was unlikely to cause injury might not make the property owner liable, especially when there were no prior issues or warnings suggesting a foreseeable risk.

Trivial Defects and Pre-Existing Conditions

Some jurisdictions recognize the idea of trivial defects, contending that certain minor or insignificant discrepancies in a walkway or floor do not rise to the level of an unreasonably dangerous condition. Property owners may also argue that an injury was actually caused by a pre-existing medical condition rather than the slip and fall.

Procedural Defenses

Procedural rules can determine whether a case proceeds, regardless of the underlying facts. A property owner may argue that the plaintiff sued the wrong party, especially when multiple entities control different portions of the premises. For claims against government entities, a limited time to file formal notice may apply. Meanwhile, rules called statutes of limitations provide more general deadlines for filing suit. If the statute of limitations or required notice period has expired, the court will typically dismiss the case. Government entities may also raise immunity protections that restrict or bar liability in various ways.

Importance of Evidence Gathering

Property owners and injured parties alike rely on photographs, video recordings, inspection records, and eyewitness statements to show whether and when a dangerous condition existed. Medical records can help establish the nature and cause of the injury. Expert witnesses may discuss how the hazard arose and whether the owner’s actions met the applicable standard of care. Careful documentation of all relevant factors can shape the success or failure of defenses by establishing who knew what, when they knew it, what steps were taken to eliminate hazards, and whether the plaintiff acted reasonably once the danger became apparent.

Last reviewed May 2025