7 Common Defenses in Slip and Fall Injury Lawsuits in Texas

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1. Comparative Negligence Defense

This is one of the most common defenses in Texas slip and fall cases. Property owners often argue that the injured person caused or partly caused their own fall.

What Is Comparative Negligence?

Texas follows a rule called modified comparative negligence. If the injured person is found 51% or more at fault, they can’t recover any money. If they’re less than 51% at fault, their compensation gets reduced based on their share of fault.

Common Examples

Property owners might claim that:

• The person wasn’t watching where they were going.
• They ignored warning signs.
• They wore unsafe footwear.
• They walked in an area that was clearly marked off.

How This Affects Your Case

If the court decides you’re partly to blame, your total compensation will be reduced. For example, if you were awarded $20,000 but found 25% at fault, you would receive $15,000.

How Attorneys Fight Back

Attorneys gather evidence showing the property owner’s responsibility. That might include video footage, witness statements, or inspection reports. If a hazard was hidden or poorly marked, they highlight that too. They push back against claims that the injured person acted carelessly.

2. Open and Obvious Danger Defense

Property owners sometimes claim that the danger was easy to see and avoid. This is known as the open and obvious danger defense.

Understanding the Open and Obvious Standard

In Texas, property owners don’t always have to warn people about hazards that are clearly visible. If a spilled drink had a “wet floor” sign next to it or a large hole was marked with cones, the court might find that the person should’ve noticed and avoided it.

When This Defense Fails

This defense doesn’t work when:

• The person had no way of seeing the hazard.
• Lighting was poor.
• The hazard blended in with the surroundings.
• The injured person had no choice but to pass through the area.

For example, a cracked tile in a busy store aisle might go unnoticed, especially if merchandise blocks the view.

How Attorneys Challenge This Defense

Attorneys show that the danger wasn’t as obvious as claimed. They collect photos, videos, and witness accounts. If needed, they bring in expert witnesses to explain how an average person wouldn’t have seen or recognized the risk.

3. Lack of Notice Defense

Another common defense is that the property owner didn’t know about the hazard in time to fix it.

Actual vs. Constructive Notice

Texas law says owners must fix or warn about dangers they knew about (actual notice) or should have known about through regular inspection (constructive notice). If a spill happened five minutes before the fall, the owner might claim they didn’t have enough time to respond.

Time Matters

If a puddle sat for hours with no cleanup or warning sign, the owner can’t claim surprise. But if the hazard appeared right before the fall, they may argue they weren’t responsible.

How Attorneys Prove Notice

Lawyers use maintenance logs, security footage, and employee testimony to prove the owner had enough time to find and fix the danger. They also check whether the property had regular safety checks in place.

4. Lawful Use of Property Defense

Property owners in Texas sometimes try to avoid liability by claiming the injured person had no legal right to be on the property or was using it in a way that went beyond that right. This is called the lawful use of property defense. It focuses on the injured person’s status at the time of the fall and what duty, if any, the owner owed them.

Defining Lawful vs. Unlawful Presence

In Texas, people on someone else’s property are classified into three main groups:

• Invitees: These are people invited onto the property for business reasons, like customers at a store or clients at an office. Property owners owe them the highest duty of care, including regularly checking for hazards and fixing them or warning guests.
• Licensees: These are social guests who are allowed on the property for non-business reasons. For example, a friend visiting your home is a licensee. Property owners must warn licensees of any known dangers that aren’t obvious.
• Trespassers: These are people who enter the property without permission. Property owners usually don’t owe them a duty of care, except not to intentionally cause harm. However, children might be an exception if something dangerous on the property attracts them.

Property owners often use this defense to argue they owed little or no duty based on the injured person’s classification.

Business Premises Considerations

Commercial properties come with extra rules. Store owners, for example, owe a strong duty to keep their premises safe for customers. But they may argue that someone who wandered into an employee-only area or climbed on a shelf was no longer an invitee.

They might also claim a person wasn’t a customer at all. Someone who enters a store just to use the restroom or escape the weather might be labeled a licensee, limiting the property owner’s responsibility and reducing their chances of pursuing a successful personal injury claim.

Proving Lawful Presence

Attorneys can show lawful presence in many ways:

• Security footage showing the person shopping, checking out, or interacting with staff.
• Receipts, digital payment records, or loyalty card activity.
• Witnesses who saw the person enter through the public entrance or who can confirm they had permission.

Even if someone wasn’t shopping, courts often treat members of the public entering open businesses during regular hours as invitees. Attorneys work to establish that the injured person was using the property in a normal and expected way, which increases the property owner’s legal duties.

Overall, the property owner’s defense often relies on shifting blame. Your attorney’s job is to pull the facts back into focus and show the property owner had a duty and failed to meet it.

5. Third Party Responsibility Defense

Property owners sometimes try to shift the blame to someone else. An owner might claim a contractor left a hazard behind or that a cleaning company failed to mark a wet floor. In cases involving rental properties, owners might blame tenants.

Government Entity Involvement

If a fall happens on public property or a sidewalk, the city or state might be responsible. These claims have different procedures and deadlines.

How Attorneys Respond

Attorneys identify all parties that might be responsible. They check contracts, maintenance agreements, and communication records. If others contributed to the hazard, they include them in the claim to cover all angles.

6. “Acts of God” Defense

This defense comes up when weather plays a role in the accident. Property owners may blame rain, ice, or wind for the fall. They might argue that no one could’ve prevented the condition.

Challenging Weather-Based Defenses

Even when weather causes a hazard, owners still must take reasonable steps to keep the area safe. That includes salting sidewalks, putting down mats, or mopping entryways. Attorneys look at maintenance logs and weather reports to see if the owner acted reasonably.

When Weather Defenses Fail

If an icy walkway wasn’t treated for hours or a leaky ceiling caused a puddle indoors, weather defenses don’t hold up. Owners have a duty to respond to weather conditions that create known risks.

7. Pre-existing Medical Condition Defense

Sometimes, the defense claims the injuries existed before the fall. They might say the injured person already had back problems, arthritis, or joint damage. They argue that the fall didn’t cause new injuries or make things worse.

How Attorneys Handle These Claims

Attorneys collect detailed medical records from before and after the fall. They work with doctors to show that the injuries were caused or made worse by the fall. Quick medical treatment helps connect the injuries to the accident.

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