Last week our team at Roberts Markland published the blog, How Strong is Your Slip and Fall Case?, providing insights into the factors influencing the strength of a slip-and-fall claim. Gathering evidence to prove liability and negligence is only the first step; anticipating the defenses commonly used to undercut valid claims can make or break a slip and fall personal injury claim.
We have seen these underhanded tactics used firsthand to undermine the damages caused to victims. Below we’ve broken down the most common defenses we’ve witnessed and how we have overcome them to provide justice.
The Building Blocks: Liability Basics
As mentioned in the previous blog, the first step is to affirm liability of the company on behalf of the victim. To recap, here are few things our team proves in slip and fall cases:
- Duty of care: Owners and occupiers must keep the premises reasonably safe for lawful visitors (shoppers, tenants, guests).
- Breach: They failed to fix a hazard, warn the public about it, or reasonably inspect for it.
- Causation: The hazard caused your fall and injuries.
- Damages: You suffered losses (medical bills, lost wages, pain, etc.).
Defense 1: “There Was No Notice of the Hazard”
Owners often argue they neither created the condition nor knew it existed. Plaintiffs counter by establishing constructive notice—showing the hazard persisted long enough that a reasonable owner would have discovered and corrected it. Useful proof includes time markers (how long a spill or defect was present), footprints through liquid, dried or sticky residue, wilted produce, witness accounts, gaps in inspection logs, and surveillance revealing when the hazard appeared and how long it remained. In one matter, a patron tripped on a broken sidewalk; video showed the defect had existed for months without repair, and liability was established. Early preservation of video, maintenance logs, and work orders is critical.
Defense 2: “The Claimant Wasn’t Paying Attention”
The defense may contend the claimant was distracted, wore improper footwear, carried items that blocked vision, or ignored an obvious hazard. Plaintiffs respond by showing the conduct was typical and foreseeable for patrons (looking at shelves, signage, or menus) and by using human-factors analysis to address sightlines, lighting, and contrast in real environments. Comparative negligence rules in many states still permit recovery despite partial fault, with damages reduced by the percentage assigned; thresholds and bars vary by jurisdiction. For example, a customer carrying takeout slipped on a clear spill in a dim corridor; photographs and expert analysis demonstrated the hazard was not reasonably detectable.
Defense 3: “A Warning Sign Was Posted”
Another frequent argument is that cones or signs were placed, proving reasonable care. Rebuttal focuses on adequacy: whether the warning was positioned near the actual hazard and visible from the approach path, presented in appropriate language, and placed at the right time under the existing lighting conditions. Where hazards are recurrent (such as ongoing leaks or uneven surfaces), reasonable care typically requires remediation rather than reliance on perpetual signage. For instance, a “Wet Floor” sign near a restroom did not warn of a leak around the corner by the towel dispenser and was deemed inadequate.
What’s Next?
Next up, we’re cracking open the rest of the defense playbook—from “we followed our policy” and “open and obvious” to weather excuses, contractor blame, causation nitpicks, “no prior incidents,” late reporting, and deadline traps. If clear, no-nonsense breakdowns like this hit the mark, stay tuned—and subscribe to the Roberts Markland LLP newsletter to receive the next installment the moment it drops.
Learn more about your options on our Houston motorcycle accident lawyer page. Ready to begin your case? Contact us today for a free consultation.