The defendant in a slip and fall case can use an affirmative defense where the plaintiff has assumed the risk. In "assumption of risk" defense, the defendant will have to prove:

  • The plaintiff knew about the dangerous condition
  • The plaintiff had full understanding of this risk
  • The plaintiff faced the risk of his or her own free will

Taking an actual case will put things in perspective. A woman sued the management company of her apartment when she slipped and fell on black ice on a stairway that led to the parking lot. However, another exit was available that led to the same area. The stairway on which she fell remained in the shadows and the ice melted very slowly there. When the woman left her apartment, she saw the patches of ice and snow on the stairway, and when she arrived home the surface was wet. At night, the woman fell on black ice that was there on the stairs, and sustained a complex fracture.

Should have been Aware of the Threat

The defendant used the defense of assumption of risk, saying that the woman should have known about the existence of black ice on the stairs, and still she took the risk of climbing down those stairs. The ruling was in favor of the defense, and the woman appealed to the judgment saying that nobody would be able to file a lawsuit when falling on black ice in the common area.

She should have been aware of the threat and used the railings. If she held onto the railings while she negotiated up or down the stairs she would have been OK. To not use the railings when she should have known the threat existed was not the owner’s fault. She did not do enough to protect herself or her body.

Extreme Sympathy

The appeals court explained that the defense of assumption of risk could only apply if the plaintiff actually knew about the presence of the risk and not that it could have been present. Since there was no evidence, which showed the woman knew about the black ice, the appeal court reversed the earlier judgment. In this case, the woman could not have assumed a risk, which she did not know about.

This is a generous court considering anyone who lives in freezing temperatures should hold onto the rails when descending or ascending a staircase. The management will now have to put up signs all over the stairs letting people know about the slippery black ice during the winter.