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As a law firm, we talk to people all the time about slip and fall cases. Unfortunately, we end up turning down a number of them because in many cases, the expense of pursuing them far outweighs what could ever be recovered for the individual. We do not like representing people just to pay experts when we work for the individual and not the medical providers.

Over time, there has been an obvious assault on slip and fall cases by the judiciary. There have been multiple Court of Appeals decisions that have for the most part wiped out many of these cases. I simply cannot understand how a court can find that an individual who is going to buy something at a business and has been there very few times could have a greater duty to look out for ice than the business and their employees who are there each and every minute of the day.

The Seventh Amendment and the law was set up to allow people who have been wronged to address their losses. A system that does not allow people to recover for damage which is not their fault is simply unfair. The three most often defenses they use are:

1. Notice. Whether or not the premises had a notice of what the danger was that caused the slip/fall.

2. Open and obvious. That the danger was something that could have or should have been seen and therefore should have been avoided.

3. Assumption of the risk. That the danger is a known hazard and as a result, the person doing the activity made the choice to do what they did.

These defenses have become almost insurmountable thresholds for most people bringing these claims. Consequently, individuals who do not have a surgery, broken bone or hampered by Medicare liens, simply are unlikely to recover in many cases because of these barriers. It has become routine for almost each defense lawyer to bring these summary judgment motions because a lot of judges are just going to throw the case out.

Now I have heard that there are some judges who have taken the position that they would rather throw them out because they are going to be lost by the jury anyway. They seem to believe they are doing the plaintiff’s lawyer and the injured person a favor by kicking them out the door early. This is bothersome because the judge is then taking the place of allowing the actual process to work as it should. Saving the lawyer and the plaintiff from themselves takes out the understanding that the person bringing the claim should understand the risks of what it means to go in front of a jury.

It is not unusual to be called by an injured individual from a slip and fall and have them end the call yelling at me or saying something along the lines of “I thought you believed in justice for the injured.” Basically, they do not like my advice. I am always troubled by those responses, but I do understand them. A person doing their daily activities is now suddenly hurt and cannot understand why there is nothing that can be done for them. Unfortunately, with the present state of the law, the best thing I can do for them is to tell them the truth about the potential for any type of recovery.

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