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Will Comparative Negligence Affect a Senior’s Slip-and-Fall Claim?

By Hardwick & Pendergast, P.S. on February 23, 2021

People over 65 are considered the most “at risk” for suffering serious trauma in a fall, whether that is a traumatic brain injury, a spinal cord injury, a hip fracture, or even death. Even though they are more prone to falls than others, many senior slip-and-fall cases are the results of someone else’s negligence, oftentimes a property owner who failed to clean up a spill or left a trip hazard in an entranceway.

After a serious fall, the elderly victim may be able to pursue a premises liability claim to recover compensation, but as with any injury claim, the victim may have their claim reduced or denied due to their own “comparative negligence.”

Understanding Comparative Fault in Washington

The state of Washington follows comparative fault laws when evaluating injury claims. Under this principle, anyone involved in an accident can be found partially at fault for causing it, whether they were injured or not, by a jury. For plaintiffs, this means that any amount of fault they are assigned can reduce the overall value of their claim. However, given that Washington state follows pure comparative fault laws, so long as victims are less than 100% at fault for their injuries, they can receive compensation. It is also possible for a victim to receive 0% of the fault and receive 100% of their claim’s total value.

How Is Fault Assigned?

For a jury to assign fault, the members must first determine if anyone in the accident acted negligently. Negligence refers to any action that a reasonable person would not have taken in the same situation. For example, a reasonable property owner would not allow guests to use a staircase with a loose handrail – or at least, he would warn them. If the property owner was aware of the issue but failed to put up warning signs or fix the safety hazard in time to protect guests, that would make him liable in a slip-and-fall claim.

On the flipside, a reasonable person – especially a senior citizen — would not run up a flight of stairs two at a time. Instead, he would take each step at a normal pace and use the handrails. Otherwise, he would put himself in danger of suffering a serious fall.

Does Negligence Apply to the Elderly?

There are no laws in Washington state that excuse the elderly for negligence. Like any other plaintiffs, their actions and behavior will be evaluated based on the same standards for their situation.

However, what is considered reasonable for an elderly plaintiff may differ from that for the average healthy adult. While a 40-year-old man should be able to catch himself during a fall and avoid becoming injured, a 68-year-old man may have a harder time preventing an injury. He may lack the coordination and muscle strength to stop himself from hitting the ground after tripping over a loose patch of carpet. Where a younger man may only suffer a small scrape or bruise in a similar accident, an elderly victim may break his wrist, fracture a kneecap, or dislocate a hip.

When evaluating if an elderly plaintiff acted negligently, the jury would need to compare his situation to that of another person of similar age, physical capabilities, and mental capacity. For example, a nursing home resident with Alzheimer’s should receive additional care compared to a resident who does not. If the first resident suffered a fall in a nursing home due to a lack of proper supervision, then she likely would not be found at fault for her injuries, whereas the nursing home staff would be found at fault.

Sadly, if you or an elderly family member suffered an injury in a slip-and-fall, you may still face an uphill battle to receive compensation. Property owners and their insurers will fight tooth and nail to avoid paying any amount of money to you, no matter how recklessly the property owner acted. Your best option is to work with a skilled Seattle personal injury attorney at Hardwick & Pendergast, P.S.

For over 40 years, our firm has fought on behalf of accident victims throughout the Seattle area and successfully secured millions of dollars in compensation for our clients. Our lead attorney, Joseph E. Pendergast, III, has been named to the Top 100 Trial Lawyers, as well as the Million and Multi-Million Dollar Advocates Forum. If you bring your case to us, you can trust that you will receive top-league legal representation. We offer every potential client a free consultation, so there is no cost to calling us at (425) 228-3860 and toll-free at (888) 228-3860.

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