One of the hardest things to prove is that someone else is responsible for your slip and fall accident. As mentioned before, it is the property owner’s responsibility to keep his/her property safe for any visitors. But what if you are found partially to blame for your accident?
The reality is that almost every premises liability case involves some argument about whether the injured person was paying attention. Defense counsel and insurance carriers are trained to look for any factor that suggests the customer contributed to the fall. Whether you were holding a phone, carrying packages, distracted by a sign, wearing inappropriate shoes, walking quickly, or stepping somewhere you should not have been can all be raised. Some of these arguments succeed. Many do not. The job of a plaintiff’s lawyer is to anticipate them and to position the case so the jury sees the property owner’s failure first and the customer’s conduct as a secondary issue, if at all.
It’s true in many slip and fall accident cases the person injured can be found partly in fault. For instance, you may have not have been paying attention to the icy conditions of the parking lot when you slip and fall. Or while walking into a store, you don’t see the puddle on the floor caused by bad weather conditions and slip. Although it’s the property owner at fault, the insurance company may assign partial blame to you.
It is worth understanding how the insurance carrier actually arrives at the fault percentage it offers. The number is not generated by a neutral analysis. The carrier’s adjuster, working from the recorded statement of the insured, the incident report prepared by the store, and any witness accounts the carrier has gathered, applies an internal liability rubric that errs in favor of the carrier. A modest fact like “the puddle had been there for an hour” can be downplayed in favor of “the puddle was clearly visible to anyone paying attention.” A number that should be 90-10 in the customer’s favor often gets reported back as 70-30 or 60-40. The early settlement offer reflects that internal allocation, not what a jury would actually decide.
If this happens, New Jersey will use a “modified comparative negligence” rule as a way to reduce or eliminate damages in the case. So using the example above, the insurance company has decided that you are partially responsible for the slip and fall accident, about 5 percent. Because of this, you will not receive the total amount awarded to you for your damages. So if you are awarded $20,000 for the accident, you may only receive $19,500.
The 50 Percent Bar Is Where Cases Are Won or Lost
The modified comparative negligence rule in New Jersey, codified at N.J.S.A. 2A:15-5.1, has a feature that makes the fault percentage do more work than people realize. A plaintiff who is more than 50 percent at fault recovers nothing at all. The compensation does not just get reduced. It disappears. A jury that finds a customer 51 percent responsible for her own fall walks her out of the courtroom with no recovery, even when the property owner was 49 percent at fault and the customer’s damages totaled hundreds of thousands of dollars.
This rule is the main reason defense lawyers fight so hard to push the comparative fault number higher. Getting from 30 percent to 51 percent does not just shrink the recovery. It eliminates the recovery. The plaintiff’s lawyer counters by reframing the conduct, presenting evidence of what the store knew and when, and emphasizing the duty the law places on property owners to maintain safe premises rather than the duty of customers to look down at every step.
The same dynamic plays out in settlement. A carrier that knows its insured is 80 percent at fault and the customer is 20 percent at fault will value the case much higher than one that thinks the split is closer to even. Moving the perceived split from 50-50 to 80-20 can double or triple the settlement value of an identical case. A skilled New Jersey Personal Injury Attorney understands how to build the record that moves that perceived split.
What Counts as Comparative Fault in a Slip and Fall
The most common factors raised against a customer in premises liability cases include not watching where she was walking, wearing footwear inappropriate for the conditions, walking too quickly, ignoring warning signs, taking a shortcut through an area not intended for foot traffic, and being on the phone or otherwise distracted. The defense will try to apply at least one of these to almost every case.
Not every factor that gets raised actually moves the needle. New Jersey law applies the reasonable person standard. A customer is expected to exercise the care that an ordinary person would exercise under the same circumstances. Walking through a grocery store while reading the items on the shelves is not unreasonable. Customers are supposed to look at the shelves. That is the entire point of a grocery store. A defense that tries to fault a customer for “not looking at the floor” misunderstands how customers actually shop and how reasonable jurors view that behavior.
Distraction theory, where a plaintiff was distracted by something the property owner created or controlled, can sometimes reduce or eliminate comparative fault entirely. Bright displays, promotional signs, attention-getting product placement, and store employees calling out to customers all qualify as distractions that the property owner is responsible for creating. A customer who fell while looking at exactly what the store wanted her to look at has a strong response to a comparative fault argument.
The Open and Obvious Defense Has Been Weakened
For many years, New Jersey courts applied a rule that a property owner was not liable for falls caused by hazards that were open and obvious. Recent decisions have moved away from that approach. The current analysis treats the open and obvious nature of a hazard as one factor in the comparative fault analysis rather than as a complete defense.
A puddle that was clearly visible is still the property owner’s responsibility to clean up. The customer’s failure to notice it may reduce the recovery but does not eliminate it. The same analysis applies to other obvious hazards like an uneven floor, a missing handrail, or merchandise stacked in an aisle. The property owner created or maintained the hazard. The customer’s job is not to navigate hazards. The property owner’s job is to remove them.
The Mode of Operation Rule and Its Effect on Fault
New Jersey applies a mode-of-operation rule in certain self-service business contexts. Under this rule, the customer does not need to prove that the store had specific notice of the particular hazard. The customer needs to show that the type of operation produced a reasonably foreseeable hazard and that the store failed to take reasonable steps to address it.
Self-service salad bars, produce sections with mist sprayers, beverage aisles where containers can leak, and other operations where customers handle goods themselves all fall within this doctrine. When the rule applies, the question is not whether the customer was paying attention. The question is whether the store had a system in place to address the hazards its own operation creates. A customer’s comparative fault argument is much weaker when the case turns on a systemic failure rather than a specific spill the customer missed.
What the Evidence Actually Looks Like
Photographs taken at the scene matter more than almost anything else. Wide shots that establish the location. Close shots that show the size and depth of the defect or the extent of the spill. Photos of the surrounding area to show whether warning signs were present or absent. Photos of the lighting. Photos of the customer’s shoes if footwear has been raised as a factor.
Surveillance footage is often decisive. Most retail establishments record video that can confirm exactly how long a hazard was present before the fall and what the customer was doing in the seconds before stepping into it. The footage is overwritten quickly, usually within thirty to ninety days. A preservation letter from an attorney sent in the first weeks after the incident is essential.
Witness statements from independent observers help most. A passerby who saw the fall, a customer who saw the puddle earlier and reported it, or an employee who knew the spill had been there for a long time can all support the case in ways that the plaintiff’s own testimony cannot.
The store’s own records help too. Inspection logs that the store is required to maintain often show whether the area was inspected before the fall and what was found. Incident reports prepared by store managers can contradict the version of events later told to the carrier. Training records can show whether employees knew what to do when a spill was reported. Maintenance records can show whether the store had ongoing problems with leaks or refrigeration failures in the area of the fall.
How a Lawyer Moves the Fault Allocation
The starting point is the initial liability presentation to the carrier. A demand letter that walks through the evidence systematically, anticipates the defenses, and cites relevant case law sets the tone for the negotiation. A presentation that simply says the customer fell and demands a number gives the carrier room to assign substantial fault to the customer. A presentation that explains why the store’s conduct was the primary cause, why the customer’s conduct was reasonable, and why a jury would find for the plaintiff makes the carrier’s allocation much harder to maintain.
In litigation, depositions of store employees and managers are critical. The deposition takes the carrier’s friendly witnesses out of the carrier’s hands and puts them under oath answering questions framed by the plaintiff’s counsel. Employees often admit things they would not have admitted in an informal interview. The store manager who first told the carrier that the puddle had been there for “only a few minutes” may admit at deposition that she does not actually know how long it was there. A defense built on a particular version of the facts can collapse when the witnesses are questioned in a structured setting.
Expert testimony also moves the needle. Engineering experts can speak to the dangerous nature of a particular defect. Safety experts can describe the industry standard for inspections, training, and warnings. Vocational experts can address the effect of the injury on the plaintiff’s ability to work. Each expert layer helps the case stand on its own and reduces the room for a comparative fault argument.
Common Mistakes That Increase Comparative Fault
Talking to the store immediately after the fall and accepting blame is the most damaging. Statements like “I should have been watching where I was going” or “I am clumsy” appear in store incident reports and become evidence at trial. The customer is shaken, embarrassed, and trying to be polite. The carrier later treats the statements as admissions. The right approach is to stay polite without making any statement about whose fault the fall was.
Posting on social media is another. Photographs of normal activities, vacation trips, and family events all become evidence the defense uses to argue the plaintiff is more capable than she claims. Set accounts to private. Stop posting about anything that touches on the case.
Skipping medical treatment for what feels like a minor injury can also hurt the case. Adrenaline masks pain for hours and sometimes days after a fall. A trip to the emergency room or urgent care on the day of the fall creates a contemporaneous medical record. The absence of immediate treatment becomes a defense argument that the injury was not significant or that it came from something else entirely.
Questions People Ask After Being Blamed for a Fall
What if I was wearing flip-flops or high heels when I fell?
Footwear is one of the factors carriers raise most often. A reasonable person standard applies. Wearing high heels into a department store is normal behavior. Wearing flip-flops into a grocery store is normal behavior. The argument can affect the comparative fault analysis, but it rarely eliminates the case when the underlying hazard was clearly the property owner’s fault.
What if I had a few drinks before the fall?
Intoxication is a serious factor when raised, but it does not automatically eliminate the case. The question is whether the intoxication caused the fall or whether the hazard would have caused the fall regardless. A customer with moderate alcohol in her system who fell on an obvious hazard the store knew about may still recover, although the comparative fault percentage will likely be higher.
Can I lose all my damages over a small percentage of fault?
Not over a small percentage. A plaintiff who is 49 percent at fault recovers 51 percent of damages. Only when the fault assigned to the plaintiff exceeds 50 percent does the recovery disappear entirely. The 50 percent threshold is the cliff. Below it, comparative fault simply reduces the recovery proportionally.
What if the store has surveillance video that hurts my case?
Video is often less harmful than people fear and less helpful than carriers claim. Footage of a fall almost always shows the hazard that caused it. The customer’s conduct may also be visible, but it is rarely as damning as the carrier describes during the first conversation. Your attorney will want to review the video early in the case.
This is why you need an experienced personal injury lawyer by your side. At the Law Offices of Anthony Carbone, we’ve been fighting the insurance companies to get what our clients deserve for the past 26 years. If you had a slip and fall accident and you are being blamed for the accident, don’t wait any longer. Contact us today for a free consultation.