TRIP & FALL CASES
Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments
If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case. It is ultimately not sustainable to attempt to hold another party responsible for one’s injury if the cause, attributable to that alleged responsible party, is only based on speculation.
Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”. Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert. A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect. Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.
The apparent absence of a cause of an accident is common in “single step” cases. A person falls down a single step. The potential defendant argues the absence of liability both because the step was “open and obvious” and certainly “not inherently dangerous”. Both of these positions are traditional grounds for granting defendants “summary judgment” (dismissal) of lawsuits. The presence of “warning signs”, advising passers-by of dangerous conditions, adds substance to such defense positions.
It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect a potentially moribund lawsuit. What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in both paperwork and deposition testimony, to give support to countering those defense positions.