In most slip and fall cases, defendants argue the injured party shares some fault for the accident. Comparative fault rules determine how your own conduct affects your ability to recover damages when you contributed to your fall.

What Is Comparative Fault?

Comparative fault (also called comparative negligence) allocates responsibility between parties based on their relative fault. If both the property owner and the injured person were negligent, damages are divided based on each party's share of fault.

For example, if a jury finds the property owner 70% at fault and you 30% at fault for a $100,000 injury, your recovery would be reduced to $70,000.

Types of Comparative Fault Systems

Pure comparative fault allows recovery regardless of plaintiff's fault percentage. Even if you're 90% at fault, you can recover 10% of damages. About a dozen states follow this system.

Modified comparative fault (50% rule) bars recovery if plaintiff is 50% or more at fault. You can recover if you're 49% or less at fault, reduced by your fault percentage.

Modified comparative fault (51% rule) bars recovery if plaintiff is 51% or more at fault. You can recover if you're 50% or less at fault.

Know your state's rule—it dramatically affects case strategy and potential recovery.

Common Plaintiff Fault Arguments

Property owners frequently argue plaintiffs were negligent in failing to watch where they were walking, ignoring visible hazards, walking while distracted (phone use), wearing inappropriate footwear, being in areas they shouldn't have been, and ignoring posted warnings.

Expect these arguments and prepare to counter them.

Countering Fault Arguments

Challenge comparative fault arguments by showing you were exercising reasonable care, the hazard wasn't reasonably visible or avoidable, legitimate distractions reasonably drew your attention, the property owner's negligence was the primary cause, and the owner should have anticipated how visitors would behave.

Your level of care is judged by what a reasonable person would do, not perfection.

Distracted Walking

Defense attorneys increasingly argue plaintiffs were distracted by phones. While distraction can constitute comparative fault, it doesn't eliminate owner liability. Owners should anticipate that visitors may be distracted and must still address hazards.

Phone records may be subpoenaed to prove or disprove distraction at the moment of the fall.

Footwear Arguments

Defendants argue inappropriate footwear contributed to falls—high heels on slippery surfaces, flip-flops on uneven terrain. While footwear may be relevant, it doesn't excuse property owner negligence. Owners know visitors wear various shoes and must maintain premises accordingly.

How Fault Is Determined

In litigation, juries determine each party's fault percentage based on evidence presented. Factors they consider include the nature and severity of each party's negligence, which party had more control over the situation, which party had more opportunity to prevent the injury, and what a reasonable person would have done.

Effective presentation of your reasonable conduct can minimize fault allocation against you.

Impact on Settlement

Comparative fault affects settlement negotiations. If defendants believe they can prove significant plaintiff fault, they'll offer less. Your attorney must assess realistic fault allocation when evaluating offers.

Strong evidence of reasonable plaintiff conduct improves settlement leverage.

Building Your Case

Document your conduct at the time of the fall. Note where you were looking, what drew your attention, and what shoes you were wearing. Identify witnesses who can describe your reasonable behavior. Be prepared to explain why you didn't see or avoid the hazard.

Your credibility about your own conduct significantly affects fault determination.