In almost every slip or trip and fall case, your own behavior is part of the issue of who was careful and who was careless. In legalese, this issue is known as "comparative negligence," and it's a part of the fault equation in any injury case.
In a slip and fall case, the rules of comparative negligence help measure your own reasonableness in going where you did in the way you did just before the accident occurred. There are a few key questions you should ask yourself about your own conduct. They're listed below. So, think about your answers now, because chances are an insurance adjuster is going to ask these same questions after you file your claim.
Did you have a legitimate reason for being where the slippery floor or ground was?
The key here is not whether the reason is legitimate to you, but whether it was reasonable for the property owner to anticipate your presence in the precise place where the accident occurred. If the answer is no, you may have a much weaker claim for the property owner’s liability.
Should a careful person have noticed the slippery or dangerous spot and avoided it, or walked carefully enough not to slip or trip?
This is not usually a question that can be answered simply, but if it can be -- for example, slipperiness that should be obvious, such as the wet surface around a swimming pool -- your claim may be significantly reduced by your own comparative negligence.
Were there any warnings that the spot might be dangerous?
If so, and if the signs were easily visible, the liability of the property owner is probably lessened by your comparative negligence in not heeding the posted warnings.
Were you doing anything that distracted you?
If you weren't paying any particular attention to where you were going, or were you running, jumping, or fooling around in a way that made falling more likely? If so, the owner’s liability is probably reduced by your comparative carelessness. These days, it's common for slip and fall accidents to involve someone who is talking or texting on a cell phone or other device while walking.
(To see these important legal elements described with examples, see Examples of Slip and Fall Cases.)
Remember that you do not have to “prove” that you were careful. But think about what you were doing, and pay careful attention to how you will describe it so that it is clear to the insurance adjuster that you were not being careless. Learn more about how your own conduct might impact your claim in our article Shared Blame: Comparative and Contributory Fault. And you'll find in-depth information on the comparative negligence rules in your state in our State Personal Injury Laws article collection.
This article is excerpted from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).