Contributory Negligence in Slip and Fall Litigation

A common argument advanced by Defendants in slip and fall litigation is that the Plaintiff was partially responsible for his or her own misfortune. Essentially, Defendants will argue that, while they themselves may have acted in a negligent manner, the Plaintiff likewise acted negligently and should have the quantum of his or her damages reduced accordingly. This is referred to as the doctrine of contributory negligence, and it involves an assessment of the Plaintiff’s conduct and whether or not the plaintiff acted negligently. For more information on the law of contributory negligence generally, see our previous blog post on contributory negligence in motor vehicle accidents. 

Briefly, it is the defendant’s burden to prove that the plaintiff acted negligently and that the plaintiff’s negligent actions caused his or her injuries. Once the defendant establishes those two criteria, the court must apportion liability for the plaintiff’s injuries among those found at fault. Here the court considers the comparative blameworthiness of the parties. The Alberta Court of Appeal in Heller v Martens, 2002 ABCA 122, developed a non-exhaustive list of factors to be considered by the court at this stage including: 

• The nature of the duty owed by the tortfeasor to the injured party;
• The number of acts of negligence committed by each person at fault;
• The timing of various negligent acts;
• The nature of the conduct held to amount to fault; and
• The extent to which the conduct at fault breaches any statutory requirements.

For example, in the case of a slip and fall, the court may determine that the Defendant was negligent for failing prevent ice buildup on his or her sidewalk. The court may then decide, however, that the Plaintiff was also negligent for failing to wear proper footwear. The court will then evaluate the comparative blameworthiness of the Plaintiff and Defendant and apportion damages accordingly. If the Court decides that the Defendant is 75% blameworthy and the Plaintiff is 25% blameworthy, the court will proceed to reduce the Plaintiff’s damages by 25%.

Some common allegations of contributory negligence in slip and fall litigation are listed below. While there is no exhaustive list of allegations of contributory negligence, many of the common allegations are as follows:

• The Plaintiff failed to wear appropriate footwear given the weather, and any other relevant circumstances;
• The Plaintiff was walking in a reckless manner; 
• The Plaintiff was not paying sufficient attention to his or her surroundings; 
• The Plaintiff had previously been made aware of the hazard and failed to take appropriate measures to avoid it;
• The Plaintiff was suffering from any medical condition that may put them at increased risk of falling, and failed to take sufficient precautions to address this additional vulnerability; 
• The Plaintiff was intoxicated at the time of the slip and fall;
• The Plaintiff was on his or her phone, or was otherwise distracted; and
• The Plaintiff was walking or running excessively fast, given the circumstances.

Given the potentially significant impact that a finding of contributory negligence can have on a damages award, it is important for Plaintiff counsel to be aware of the likelihood that a court will find their client to be contributorily negligent, and the degree that damages are likely to be reduced.

As counsel, it is our responsibility to consider all of the circumstances surrounding a slip and fall and assess the likelihood that our clients may be held to be contributorily negligent. With this information, we can then advise our clients on the likelihood that their award of damages would be reduced, and whether they should be prepared to accept a reduction in damages on this basis.

If you are considering pursuing a slip and fall action and want to learn more, contact one of our personal injury lawyers here.

By Ian Miller