Some lawyers like to say that “there are two sides to every coin.” What they’re really getting at is that two people often view the same set of circumstances from very different perspectives. As a result, injured plaintiffs in personal injury lawsuits raise claims, while defendants raise defenses to those claims.
While some legal cases really are black and white, many cases have shades of gray, and it takes litigation to resolve the differences. Thus, any person pursuing a personal injury claim is wise to consider in advance the defenses that might be asserted by the opposing party.
In this article, we’ll consider some defenses that are commonly raised to slip-and-fall cases in Oregon.
How Common Are Falls?
According to the National Floor Safety Institute (NFSI), more than 8 million emergency room visits result every year from falls. In fact, the non-profit organization states that falls are the leading cause for emergency room visits.
More women fall than men, although fatalities are equally divided between the sexes. While people from all age groups suffer personal injuries from falls, the elderly are particularly hard hit. Falls can occur in homes, at work, in businesses, nursing homes, and any other place that you find people present.
In this article, we are focusing on falls at businesses.
Premises Liability in Oregon
The law that governs actions brought by injured victims who fall down on the property of others is called premises liability law, although it’s common to hear these legal actions referred to as “slip-and-fall” or “trip-and-fall” cases, depending on what caused the victim to fall down. Below are some common defenses raised in response to premises liability actions.
The Defendant Business Claims that it Acted Reasonably
In some cases, a defendant may admit that a plaintiff fell down and was injured. However, the defendant business will contend that it took appropriate precautions and thus was not negligent. For example, a defendant may point out that warning signs were posted, or cones were placed where a dangerous condition existed.
However, even when such actions are taken, it may be equally true that the actions were insufficient to protect customers.
Open and Obvious Hazard
Sometimes a defendant will contend that the dangerous condition should have been obvious to the victim. An example of such an argument is when a victim walks up and down an aisle several times, past the same hazard, before finally slipping or tripping on it.
Business’s Lack of Knowledge
In some instances, a business owner may claim that it was unaware of the dangerous condition. The evidence may show, contrary to the defense, that the hazard had existed for some time and should have been remedied.
In other instances, the question can be more difficult – for example, how long was a piece of fruit on the floor in a grocery store before someone slipped on it? The plaintiff may be able to demonstrate that the business did not have reasonable procedures in place to check for dangerous conditions.
No Unreasonable Risk of Harm Existed
A business may agree that a person fell for no reason. In other words, the business claims that no unreasonable risk of harm existed and there’s nothing they could have done to prevent the fall. Careful investigation is often required to determine what really caused the fall.
Even if a business concedes that it has some responsibility for the fall, it may claim that the victim was partially responsible, and that any recovery should be offset by the plaintiff’s percentage of negligence.
A Note About Statutes of Limitation
Statutes of limitation govern the amount of time a party has in which to bring a claim. The idea is that justice is more likely to be served when claims are pursued expeditiously. In Oregon, 2017 Oregon Revised Statutes Section 12.110 provides that injuries for personal injury generally have to be filed within two years of the date of injury. Otherwise, the action will be barred.
A separate statute of limitations applies to property damage, so it’s essential that a claim be pursued in a timely manner so that it is not lost.
Like most laws, there are sometimes exceptions that modify the statute of limitation. Therefore, it’s always wise to confer with an attorney.
Call with Questions
As you can see, premises liability law can be complicated. The experienced Oregon premises liability lawyers at Nelson MacNeil Rayfield are here to answer any questions you may have.
Remember, asserting a defense is very different from proving it. We have pursued many premises liability cases and recovered damages for our clients even when business owners raise defenses like those discussed above. We believe in fighting to hold wrongdoers accountable for their wrongful actions so that all of Oregon will be safer.