Usually the number one defense raised in a retail scenario, when fighting against a slip and fall lawsuit, absent an immunity of some sort which only exists with governmental entities, is that it happened too soon after the hazardous condition arose and there wasn’t enough time to make the premises safe. This goes to the notice requirement: did the retailer have notice of the dangerous condition in time to fix it?
In claims where a store owner did have not notice of the problem and couldn’t fix it, the law favors them, unless you as the plaintiff can demonstrate that they had actual notice or that enough time had passed that they should have discovered it.
Someone fighting against a slip and fall lawsuit may also argue you were clumsy or that you weren’t watching where you where you were walking. Comparative negligence also applies in slip, trip, and fall cases. They might argue that even if the defect existed, you were careless and should have watched where you were going because it was clearly in your field of vision.
In negotiations, insurance company lawyers for the party responsible for the dangerous condition will try to lower your recover by whatever percentage of fault they think belongs to you, the victim.
For example, if they take a position that the victim is at least 30% at fault, then they will also take the same approach in settling the case dollar-wise. In this example, they would argue that your recovery should be reduced by 30%
Comparative fault not only works at the time of trial for an argument but also during settlement negotiations. Their lawyers will always try to knock down the settlement numbers by assigning some percentage of comparative fault and, therefore, discounting the settlement amount, while an experienced slip, trip and fall attorney will argue, according to the facts and circumstances, to minimize your percentage of fault.
