This deep freeze, thaw, cold, warm, snow, rain, back to snow, then to ice weather cycle we have seen across Ontario this winter hasn’t been good for anyone. We’re not sure if it’s snowing, raining, or ice is falling from the sky.
All of the fluctuations in temperature have lead to slippery walking conditions on sidewalks, parking lots, entrance ways, walk ways and other paths.
Over the past week, personal injury lawyer Brian Goldfinger has been asked for comment by the CBC, CityTV and quoted by Canadian Underwrite Magazine for commentary from a knowledgable lawyer regarding slip and fall cases in Ontario. You can find links to these articles here:
Canadians nurse winter wounds as cities grapple with icy sidewalks
Over the months of February and well in to the beginning of March 2019, our law firm has seen a spike from the usual norm with respect to winter slip and fall cases resulting in serious injury. Injuries like broken ankles, broken wrists, broken arms, broken hips; even fractured skulls. We have been seeing some pretty significant injury cases of late.
One of the most important things which an insurance company, a Judge and Jury will want to see is what sort of footwear the insurer was wearing at the time of the accident.
Was the injured Plaintiff wearing running shoes in the snow and ice? Were they wearing high heels or a wedged shoe? How about Crocs or sandals? Were they wearing a proper winter boot?
This sort of information can make, or break a winter slip and fall case. Picture yourself as an insurance adjuster, Judge or member of the Jury. You will likely feel bad for an injured person if they sustained a serious orthopaedic injury which has required surgery and hardware which will be in the Plaintiff for the rest of his/her life. Those sorts of injuries have life long consequences which significantly change the person’s activities of daily living; usually for the worse.
When it’s shown that the negligence of the property owner led to the Plaintiff’s fall, and ensuing injuries, the insurance adjuster, Judge and Jury may empathize further.
But all of that goodwill is gone when it’s discovered that the injured Plaintiff was wearing footwear which was completely inappropriate for the weather conditions. Thoughts like:
It was a cold winter day with temperatures hovering around -10 degrees, and the Plaintiff knew that it was snowy/icy outside; yet they still went outside in sandals or Crocs?!?!?! What was s/he thinking?!?!?
These are normal thoughts for any individual hearing such a case. It’s human nature.
And when these thoughts come to mind, it can completely undermine the injuries themselves. Thoughts like the Plaintiff got what was coming to them; or that the Plaintiff was the author of their own misfortune. Other times you will hear people insist that the “Plaintiff made his/her own bed, and now they have to sleep in it”; meaning that the Plaintiff has to deal with the consequences of their own actions/negligence.
All of these thoughts/feelings come to mind and can undermine what is otherwise a very good case which is strong on liability against the Defendant, strong on damages and strong on causation.
The lesson to be learned here is just because your personal injury lawyer can nail the Defendant on liability; and both damages and causation can be established, doesn’t mean that the case is a slam dunk. A Defendant insurer will reluctantly attack the Plaintiff on contributory negligence suggesting that had the Plaintiff worn more appropriate winter footwear, that the entire accident could have been averted. There are experts for that sort of thing who can suggest that but for the Plaintiff wearing (sandals, crocs, running shoes, high heels) that the Plaintiff would not have fallen; or if s/he fell, that the fall would not have been as bad as it was.
What a Court can do is reduce the award proportional to the finding of contributory liability attached to the Plaintiff. This means that a Plaintiff can win at trial. The Judge/Jury can assess damages at $100,000. The Judge/Jury can assess liability against the Defendant at 50%, and can also assess that the Plaintiff was also 50% responsible for the accident. In such a case, the Plaintiff’s $100,000 award is reduced by 50% to reflect his/her degree of contributory liability. Should that happen, the Plaintiff is left with a $50,000 award after the contributory liability deduction is made.
That equates to a $50,000 mistake of not wearing your winter boots the day of the fall; not to mention the potential life long accident relating impairments caused by the slip and fall which may have all been averted had proper winter boots been worn. Often these mistakes happen because we misjudge the weather, or because winter boots aren’t as fashionable as some of our other footwear. Other times we see people who are lazy or absent minded to get their winter boots on because wearing sandals or crocs is much easier. Don’t let these momentary lapses in judgment dictate the course of your life.
There is no doubt that sometimes these slip and fall accidents are unavoidable. They are going to happen whether or not we wear appropriate boots or not.
When a slip and fall accident happens to you, it’s important to get the photos of the area, patch or ice, or hazard where you fell. That picture is important because it provides both sides with some great evidence as to where the fall took place and what caused the fall in the first place. Sometimes stating that you fell on ice isn’t good enough. Your lawyer will want to show concrete evidence of that ice in form of photograph or video. Having the names and contact information of any witnesses to the slip and fall is also very helpful. Those witnesses will be able to attest to the slippery conditions. Other times none of this is possible. There are no photos, no video, and no witnesses. When that happens, it becomes your word vs. their word. If the Defendant’s records aren’t kept, or show that the area where the fall took place had not been maintained, it poses a strong case of the Plaintiff. Sometimes the iciness of the area where the fall took place is detailed in the records of the attending paramedics at the scene. Any evidence to help establish that the area where the fall took place was ice and not properly maintained will assist the Plaintiff’s case.