The issue of “fault” in assessing damages

I am often asked the value of a case by clients.  This is never an easy question because each case has its particular issues ranging from how an accident took place to what the injuries are.

In a slip and fall case, the issue of fault is always a difficult one.  We need to prove that the defendant either caused and created a condition, or knew (or should have known) of the dangerous condition.

“Caused and created” is the easiest of the three scenarios to prove.  If (for example) a store owner had a broken refrigerator on his premises which leaked water and the plaintiff slipped on water, that would make it easier to prove the issue of “fault.”

If the plaintiff slipped and fell on a condition that was NOT caused and created, another way to prove fault is to show evidence that the defendant actually knew about the dangerous condition, yet did nothing to rectify the problem.  This scenario is rare, but is sometimes proven through the spontaneous utterance by the defendant (or a person in his employ that was qualified to make such statement, e.g., a store manager versus a store cashier).

In ALL slip and fall cases, the plaintiff is also faced with the defense that they themselves “should have seen what should be seen” and thus could have prevented themselves from slipping and falling.

In auto cases,  cases involving a question of who had the green light or which driver passed a four way stop sign are cases which are disputed.  In these situations, the plaintiff may be found to have been significantly responsible for the accident.

In automobile accidents in which a pedestrian has the green light and is struck in a cross walk, this scenario makes it clear that the driver is mostly (or 100%) at fault.  The same would apply when a car strikes another car in the rear.

In construction accidents, if a worker falls from an elevation and is injured, that would create an easier path to proving fault because New York law provides that such workers are entitled to “summary judgement” against an owner of a property, a general contractor, or third parties.

In dog bite cases, it must be shown that the owner knew or should have known of the dangerous propensities of their dog.  (The “one bite” rule – i.e., an owner cannot be liable if his dog had never attacked anyone prior to this one occasion, is not longer the rule in New York).


Essentially each case and each fact pattern needs to be analyzed to determine the issue of “fault.” That is the main reason that it is always difficult to make a blanket statement as to the value of the case.


In the next blog, we will discuss the second part of the discussion which involves the issue of “damages” – i.e., how  plaintiff suffered financially and physically / mentally.

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