Common Defenses & Possible Questions In Cases Where An Individual Has Fallen Down

A common defense is to deny that the Plaintiff was injured because of the hazard alleged. The following questions may be asked in such a fall case:

  • Does the Plaintiff have good witnesses?
  • Was there surveillance video?
  • Did the Plaintiff promptly report the fall to security personnel if security people were available?

If the Plaintiff fell and there were no witnesses, especially if the Plaintiff isn't the world's most upstanding citizen, the defense will try to cast doubt upon the Plaintiff's account. Legally, a jury should find for the Plaintiff if they think there is a 50.1% chance (more probable than not) the Plaintiff is telling the truth. But in reality, a jury may be reluctant to take money from the Defendant or its insurer and give it to the Plaintiff if they think the Plaintiff is probably telling the truth but is concerned there is some chance the Plaintiff is fibbing about some parts of the claim.

The defense always claims that the Plaintiff was partly at fault and in Nevada if the Plaintiff was more than 50% at fault the Plaintiff loses. Unless a walking surfaces suddenly collapses, the defense will argue that hundreds or thousands of people passed over the alleged hazard without incident and if the Plaintiff's attorney argues it was a hazard, why didn't the Plaintiff see the hazard? Most fall cases that the Plaintiff wins involve some deduction for comparative fault. (If the Plaintiff is not more than 50% at fault, Plaintiff gets his or her damages minus the percent he or she was at fault.)

Unlike most auto collision cases in which liability is not disputed, liability is almost always disputed in fall cases. It helps if the fall injuries are obviously the result of the fall, for example, a broken arm or shoulder with abrasions where the person hit the ground. If the fall injuries are soft tissue injuries, the Plaintiff and their lawyer will be fighting a "two-front war," first trying to convince the jury of liability for the fall and then relating the soft tissue injury to the fall. For this reason fall injuries that are accepted by lawyers tend to be those have injuries clearly resulting from the fall.

Summary of Common Defenses:

The most common defenses to fall injury cases include:

  • Denying the Plaintiff was injured because of the hazard alleged.
  • Casting doubt upon the Plaintiff's account especially if there were no witnesses.
  • Claiming that the Plaintiff is at least partly at fault arguing that hundreds or thousands of people passed over or by the alleged hazard without incident.

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