Proving Negligence in a Trip and Fall Case

Trip and Fall Cases

Trip and fall cases represent a large proportion of personal injury cases and for good reason, as a personal injury lawyer  trusts can attest. People trip and fall all the time resulting in injuries and damages. The question, however, of whether that trip and fall translates into a settlement depends solely on whether the case can be proven. This may be straightforward in a trip and fall case, and it may not be.

The law of torts – that is injuries to others – establishes that to have a successful trip and fall claim, the plaintiff must show that the person who had control of the premises upon which they tripped had a duty to keep the premises clear, they breached that duty, the breach was the proximate cause of the plaintiff’s fall, and the plaintiff suffered injuries as a result. These four elements are known as duty, breach, causation, and injury. All four have to be proven to show negligence.

Duty:  The duty owed here is one of care to keep the property safe and free of obvious hazards. The level of the duty ranges from none to simple to strict and depends upon the nature of the relationship between the owner of the land and the person visiting it. A landlord owes no duty of care to someone who trespasses on their land. A person who is visiting a home at the invitation of the owner can expect a simple duty of care. A contractor or garage sale customer can expect an even higher level of care.

Breach of the duty: The person who breaches the duty is the landowner, not the individual who is injured. This is because the duty of care rests mainly with the landowner since it is his property and he has control over it, hazards and all. A landowner will be found to have breached their duty of care if they fail to take reasonable measures to keep the property safe. This means, they don’t fix the hole in the porch or replace the rotting step or they fail to clean up a spill. It is also when they fail to warn about these hazards, which may or may not be obvious. The law does recognize that the person who is injured may contribute to their accident, by, for example, moving the warning sign and forging ahead onto the unstable steps. This is known as contributory negligence and can be used to offset the negligence of the landowner.

Causation: It is not enough that there was a duty owed and that duty was breached. If the breach of that duty cannot be directly linked to the injury to the plaintiff, there can be no negligence. This is commonly known as the “but for” provision, as in, but for the unrepaired stair step, the plaintiff would not have fallen through the stair.

Injury: Even having the first three elements is not enough if the plaintiff is not injured. Of course, it is always possible that there is some injury, no matter how small or insignificant. Whether that injury is of the level that would warrant recovery is another story. Getting a splinter from the untreated door is not the same as breaking a leg falling through an unmarked hole in the ground.


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