Most people are familiar with the concept of a slip-and-fall negligence case. As the name implies, it is a personal injury case involving an accident that was caused by the victim slipping and falling on a hard surface. In some cases, we are dealing with an icy sidewalk, and in other cases we are dealing with a person slipping on a wet floor in a store.
While these cases may seem routine, they can be very complex. The first thing to understand is that a slip-and-fall case can result in serious personal injury. We have seen cases with ankle fractures, broken ribs, broken hips, knee damage, and even serious head injuries, including death. If person lands on a hard surface, such as the floor or sidewalk, with his or her head, it can result in a traumatic brain injury (TBI).Aside from the damages, the litigation can also be complex. The defendant will typically try to argue two things. The first is that they didn’t know that the floor was wet or the sidewalk was icy, and they had no reason to know. The second common defense is that, even if the sidewalk was icy, or the floor was wet, the victim should have been paying more attention when walking and noticed the allegedly obvious dangerous condition.
A news article from the Madison St. Clair Record takes a closer look at one of these cases. In that case, the restaurant toilet was leaking, and there was a puddle of water on the floor around it. When the customer went into the restroom, she allegedly slipped on the wet floor and injured her herself fairly seriously. She filed a personal injury lawsuit against the restaurant owner.
During the pretrial phase of this case, the defendant argued that the plaintiff only fell because she did not act with reasonable caution to notice the floor was wet, and would have not have fallen if she had. The defendant also argues that the plaintiff failed to mitigate her damages, though the plaintiff claims that the defendant did not set forth any facts sufficient to establish she did not mitigate her damages.
As our Boston personal injury attorneys can explain, mitigation of damages is typically a defense in a contracts case, rather than a tort case. For example, if the buyer and seller had a contract to sell a car, and the buyer backed out of the deal, the car owner is supposed to mitigate his or her damages by trying to sell the car to someone else. Even if this costs him money to relist the car, he can add that as incidental damages to his consequential damages. On the other hand, not trying to sell the car to someone else just so he would have more money to sue for could be considered failure to mitigate (lessen) his damages to the extent reasonably possible. However, to make a failure to mitigate in a personal injury case would be more difficult and would have to be pleaded with sufficient facts. ‘
If you have suffered personal injury in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.
Barefoot restaurant denies liability, seeks to transfer slip and fall suit, November 29, 2016, By Heather Isringhausen Gvillo, Madison St. Clair Record
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Eye Test as Means to Test for Concussion and Brain Injury, July 23, 2016, Boston Brain Injury Lawyer Blog