Possible Defenses in Nursing Home Fall Matters
Nursing home falls are frequent and expensive. As many as 75 percent of nursing home residents fall every year. Most of these victims are repeat fallers, which means the medical bills could well exceed $40,000. Nursing home falls also have emotional effects. Many repeat fall victims cannot live independently ever again. Furthermore, many of these victims are so afraid of falling against that they essentially turn into recluses.
Because the injuries are so severe and so much money is at stake, insurance company lawyers typically pull out all the stops to defend these cases. An assertive Carlsbad personal injury lawyer makes a big difference in these cases. An attorney diligently builds a strong, evidence-based case from the ground up. Only a strong case establishes the basic elements of negligence and also overcomes insurance company defenses.
Lack of Evidence
Usually, lack of evidence isn’t much of an issue in personal injury matters. The burden of proof is only a preponderance of evidence (more likely than not)
Nursing home falls are different. Frequently, no one witnesses the fall. Additionally, due to their head injuries, the victims’ recall is often spotty, at best.
Fortunately for a Carlsbad personal injury lawyer, California has a very broad res ipsa loquitur (the thing speaks for itself) rule. This legal doctrine allows accident victims to prove someone was negligent by the mere fact there is no other reasonable explanation. In other words, the only logical conclusion based on the available evidence is that the defendant is liable.
Someone might push a person down the stairs and then disappear into the darkness. Or, a space alien might descend to earth, push someone down the stairs, and then zoom off in its flying saucer. But these causes are unlikely. Under California law, if negligence probably caused injury, as far as the court is concerned, negligence definitely caused injury.
Comparative Fault
This legal doctrine shifts blame for an injury from the tortfeasor (negligent party) to the victim. Incidentally, the tortfeasor in a nursing home or other slip-and-fall case is usually the nursing home owner. These owners generally have a responsibility to create and maintain safe and secure environments for their invited guests.
Let’s go back to the falling-in-the-dark scenario. If victims simply aren’t mindful of their surroundings, they could be partially responsible for fall injuries.
Gait disorders often come into play. Many older people shuffle their feet when they walk. So, when they lose their balance, they cannot recover it, and they fall, even if a younger person would simply stumble. So, an older person isn’t partially responsible for the injury, or at least that partial responsibility is limited, because of a pre-existing medical condition.
Assumption of the Risk
AOTR is an offshoot of comparative fault. Displaying a “Caution Wet Floor” or other warning sign doesn’t get the nursing home owner off the hook. However, if the victim didn’t heed the sign, the victim could be partially responsible, or even entirely responsible, for the injury.
In addition to proving display, the insurance company must prove that the victim saw the sign, could read the sign, and could understand what the sign meant.
The first prong is difficult to prove in many nursing home fall cases. Many residents have AMD (age-related macular degeneration), a condition similar to a cataract. AMD is especially pronounced in low-light conditions. So, once again, older people may be unable to see signs which are clearly visible to younger people.
Reach Out to a Thorough San Diego County Lawyer
Injury victims are entitled to substantial compensation. For a confidential consultation with an experienced personal injury lawyer in Carlsbad, contact the Pursley Law Firm. We routinely handle matters throughout the Golden State.
