Identifying the correct party to sue in a slip or trip and fall case can be tricky.
In a car accident case; it’s a bit more straightforward: You sue the at fault driver. You also sue the owner of the vehicle as well.
In an dog bite or dog attack case identifying the correct party to sue is straightforward was well: You sue the owner of the dog.
How about an assault case? That’s sounds pretty straight forward as well: You sue the assailant.
How about a long term disability case? That’s easy: You sue the long term disability insurer.
Things get a bit more complicated in a slip and fall; or trip and fall case.
First you need to identify where the fall happened. Knowing the exact location of the fall is very important. A few inches to the left or to the right can change the identity of the owner. And getting the correct identity of the owner is of paramount importance for a slip and fall or trip and fall case. Suing the wrong owner won’t get a Plaintiff anywhere.
But how does a Plaintiff identify who the right owner is? That can be tricky. A simple property search combined with a corporate search (if required) often does the trick. Sometimes a site visit is necessary to get a proper lay of the land.
But identifying the right party to sue goes beyond that in a slip and fall or trip and fall case.
If the slip and fall took place on snow or ice; then the Plaintiff will want to know if there was a winter maintenance contractor in place responsible for clearing the snow and ice. Did that contractor do their job? What does the winter maintenance contract have to say about their responsibilities or whether or not they have to indemnify the owner for their negligence?
Is there a property manager for the premises? If so; then what’s their role with respect to the maintenance of the property? It’s a good idea to put them on notice of the trip and fall or slip and fall claim.
Was the property a commercial property? If so, was there a commercial cleaning contract in place? If so, you would want know the details of that cleaning company or contractor. Perhaps they had a role to play in the cause of the slip and fall by failing to live up to their end of the cleaning contract.
Getting the names and contact information of all of these parties is very important. Sometimes, it’s not just the owner of the property who is responsible for the cleaning or maintenance of the property. Truth is that in most slip and fall or trip and fall cases, there are multiple Defendants.
And strangely enough, no matter the case; each Defendant will deny liability and try to point the blame finger at another Defendant. There will be a mountain of Cross Claims vis-a-vis each Defendant whereby they seek contribution and indemnity from one another. What this means in layman terms is that each Defendant wants the other Defendant to pay. This can complicate matters for a Plaintiff. You would think that in a slip and fall case there would only be one Defendant to blame. But more often than not; there are more than one who may be responsible for the Plaintiff’s damages.
Perhaps this is why people hate lawyers and think poorly upon the legal system. A slip and fall or trip and fall case out to be simple. But it’s not. They get confusing with the number of parties; along with the varying claims going back and forth between parties. This does not take in to consideration any Third Party Claims, which are different than Crossclaims (but the same sort of idea of a Defendant passing the blame for the accident on to another party).
It’s very difficult for a first time litigant to understand how quickly and how complicated these proceedings can become when there are so many parties, contracts and insurers fighting each other on liability, causation, damages and seeking contribution and indemnity from each other. Slip and fall cases should not be rocket science; but they’ve certainly got close to that realm.
What has made matters even more complicated are the new barriers to entry for slip and fall or trip and fall cases. Before 2021, a Plaintiff needed to make a claim within 2 years of their slip or trip and fall against the at fault parties. No formal notice was required (although helpful).
At the beginning of 2021, the Provincial Government amended the Occupiers’ Liability Act requiring that a Plaintiff must give written notice served personally or by registered mail against the owner/occupier of the premises within 60 days from the date of the fall. Failure to give written notice within that time frame can act as a complete bar to a Plaintiff seeking to advance his/her claim.
Most people outside of personal injury lawyers and insurance adjusters aren’t familiar with the changes to the law. These changes weren’t meant to protect the general public. They were meant to protect large deep pocketed insurance companies and property owners. The thinking is that the more difficult it is to advance a claim; the fewer claims there will be which will save insurance companies money on these claims. This savings are to be passed down to the consumer; who in this case are the property owners. Only time will tell whether or not these savings will be passed down to the consumer. If history repeats itself, these savings won’t be passed down and instead pocketed by the insurers to maximize their profits and minimize their exposure to claims. One only needs to look at the car insurance portfolio in Ontario to understand how the cuts in to accident benefits and deductible for tort claims have not translated in to savings for the consumer. Rates have only gone up. I believe this trend will also continue on the property insurance side as well despite the changes to the laws whereby it’s more difficult to make a claim now more than ever.