Frequently, a fall puts a person in a nursing home, and a subsequent fall keeps the person there longer than expected. Falls account for 40%of nursing home admissions, and 60% of residents fall at the facility.
Understaffing and overcrowding contribute to many of these incidents. Groundskeeping and other such maintenance areas are often the first things to get cut when nursing homes have trouble hiring workers. Additionally, since the elderly population is expanding so rapidly, many facilities are almost constantly under construction. Construction zones are hazardous for older adults.
Falls normally cause very serious injuries. A Marietta personal injury attorney can obtain the compensation these victims need and deserve. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Duty of Care
As is the case in most other jurisdictions, the Peachtree State’s law divides victims into three categories, in order to determine the duty of care.
Nursing home residents and nursing home visitors are invitees in Georgia. An invitee is a person who has permission to be on the property and, simply because they are on the property, the owner benefits. Nursing home residents pay monthly fees, so there is an economic benefit. Nursing home visitors lift residents’ spirits, so there is a noneconomic benefit.
In these situations, owners have a duty of reasonable care. They must take steps to ensure that their buildings and surrounding properties are reasonably safe. That means addressing known fall and other injury hazards. More on that below.
The two other categories, which usually do not apply to nursing home falls, are licensee and trespasser. Licensees have permission to be on the property but they do not benefit the owner in any way. Trespassers are people with no permission and who provide no benefit. The landowner’s duty of care is substantially lower in these cases.
Knowledge of Hazard
This theoretical duty of care becomes a practical responsibility if the nursing home owner knew, or should have known, about the fall hazard.
Once a lawsuit enters the discovery phase, a Marietta personal injury attorney often finds “smoking guns,” like restroom cleaning reports, that the owner had previously hidden. So, if a claim settles too early, the best possible evidence, and therefore the maximum amount of compensation, may be unavailable.
If there is no smoking gun, a victim/plaintiff may use circumstantial evidence to establish constructive knowledge (should have known). Prior complaints are one such kind of evidence. If other residents or visitors complained about an uneven walkway, the owner probably had constructive knowledge.
Assumption of the risk and comparative fault are among the most common insurance company defenses in fall injury claims. If the victim was a nursing home resident, these defenses have some unique twists.
“Caution Wet Floor” and other warning signs do not excuse negligence, but they do make the assumption of the risk defense easier to establish. The defendant must still prove that the victim saw the sign. Age-related Macular Degeneration is a common problem. Many older people cannot see or read these signs, especially if the lights are dim.
AMD also affects the comparative fault defense. Basically, a lawyer argues that the victim failed to avoid a visible hazard. But what is visible to a younger person might be invisible to an older person.