Comparative Fault in Slip and Fall Cases: How Plaintiff Fault Affects Recovery

Comparative Fault in Slip and Fall Cases

Comparative fault rules determine how a slip and fall plaintiff's own conduct affects recovery.

The defense in nearly every slip and fall case argues some version of plaintiff fault: distraction, inappropriate footwear, walking too fast, not watching where you were going, ignoring an obvious hazard. The state's comparative fault framework determines what happens when the jury agrees with some of the defense's argument.

Three different frameworks exist across U.S. states: pure comparative fault, modified comparative fault (with two subtypes), and (in a handful of jurisdictions) contributory negligence. The framework in your state can determine whether the case is worth pursuing at all.

The state's comparative fault framework is the second most important variable in slip and fall case value, behind only injury severity.

Call (888) 713-6653 or use the form for a free case review and a clear analysis of the comparative fault framework in your state.

The Four Comparative Fault Frameworks

Pure Comparative Fault

States: California, Florida, New York, Alaska, Arizona, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Rhode Island, Washington. The plaintiff recovers the total damages minus the plaintiff's percentage of fault. A plaintiff 80% at fault still recovers 20%. This is the most plaintiff-favorable framework.

Modified Comparative Fault, 50% Bar

States: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah, West Virginia. The plaintiff recovers the total damages minus the plaintiff's percentage of fault, but only if the plaintiff is less than 50% at fault. A plaintiff 50% or more at fault recovers nothing.

Modified Comparative Fault, 51% Bar

States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin, Wyoming. The plaintiff recovers if their fault is 50% or less. A plaintiff more than 50% at fault recovers nothing.

Contributory Negligence (Pure Bar)

States: Maryland, North Carolina, Virginia, Alabama, the District of Columbia. Any plaintiff fault, even 1%, bars recovery entirely. The harshest framework for plaintiffs.

The Open and Obvious Defense

Many states recognize an "open and obvious" defense: if the hazard was visible and reasonably avoidable, the property owner may owe no duty (in some states) or the plaintiff may bear comparative fault (in others). The defense survives strongly in some states (Ohio, Michigan in some contexts) and has been narrowed or eliminated in others (California, Massachusetts).

The defense is not absolute. Courts increasingly recognize exceptions where the plaintiff was distracted by something inherent to the premises (the store's own displays, products, or signage), where the warning was inadequate, or where the plaintiff had no reasonable alternative path.

How to Counter Comparative Fault Arguments

Effective response to comparative fault arguments includes:

• Documenting distraction sources inherent to the premises. Product displays, signage, sale promotions, employee instructions.
• Establishing inadequate warning. Missing warning cones, faded signage, hazard not visible from the plaintiff's approach angle.
• Showing no reasonable alternative path. The plaintiff had to cross the hazardous area to reach the destination.
• Demonstrating prior similar incidents. Patterns suggesting the hazard was foreseeable beyond the individual claimant's awareness.
• Establishing the property's superior position. Owners have inspection responsibilities; claimants do not.

Compensation Subject to Comparative Reduction

All categories of damages are subject to comparative reduction.

Economic damages: medical care, surgical costs, rehabilitation, future medical expenses, lost wages, lost earning capacity, funeral expenses.

Non-economic damages: pain and suffering, loss of enjoyment of life, disfigurement, mental anguish, loss of consortium, survival action damages, wrongful death damages.

Punitive damages apply at the reduced percentage along with the rest.