Don’t let the defense assume a comparative fault verdict against your client!


Every time we have a slip and fall potential client, I think long and hard before agreeing to take on the case. I recently listened to a podcast by Keith Mitnik and have stolen some of his fantastic strategies in dealing with issues I routinely have in my slip and fall cases.  

One of the big problems in these cases is that your client, usually, will likely be charged with some degree of comparative fault… IF you let them.   Sometimes it is inevitable. However, I believe there are strategies that you can implement to reduce the chances of allowing this to happen.  

I have a current slip and fall against a national grocery chain.  The defense has alleged comparative fault for not seeing a “very bright” green bean on the floor.  None of the store employees saw this bright green bean for over one hour according to the video, not even the employees who walking right over it in the video.  Yet (per store insurance lawyers), our client should have seen it before he slipped on it and had to have his knee replaced after it smashed into the concrete floor.  

You must remember that if the defense raises an affirmative defense, then it is their BURDEN to show that your client did something wrong.  

In my slip cases, I like to consult with a human factors expert.   My experts tell me that it is not a matter of visibility, but conspicuity.  This simply means there are always things that are competing for our attention.  There is ongoing non-stop competition of our senses. It can be pretty flowers as we pass, the wind blowing a piece of trash, an attractive person ahead of us, perfume that distracts us, a bird flying by, whatever.   Even though something may be visible, you can only protect yourself from it if you have your attention directed towards it at that particular moment in time. “Exciter colors” are what should be put on areas that will draw our attention specifically to a dangerous condition in a “safe” place.   It is human nature that we look around at things, and that is just part of being human. Circumstances matter. If you are hiking in a treacherous part of the woods, or if you are in a junkyard, you are on guard for your life, and you are paying direct attention to the ground in front of you- on high alert.  But walking down a sidewalk, or in a grocery store, you feel safe; there’s no reason to have an unusual focus on your feet. It’s dangerous to walk with your head constantly down at your feet, ignoring your other surroundings. And more importantly, walking around looking at your surroundings in a “safe” place is not negligent. 

Here is part of my Closing:

It is the defendant’s burden of proof by the greater weight of the evidence, that the plaintiff should be held at fault.”   Not us. We have a lot of things to prove, but that is not one of them. They have that burden; they must show Mr. Johnson did something wrong; that he acted unreasonably, more likely right than wrong.  

It is not enough that someone else might have seen it or done something different.  It is not enough that he could have seen it. It is only enough for the defense to meet their burden of proof  for them to prove to you that my client did something wrong. Walking and being open to distractions in nature around you is not being unreasonable.  Had my client been walking backwards, covering her eyes, reading a text or sending e-mails while looking down at her phone, that would be different, but there is absolutely no evidence of that.  

The plaintiff was minding his own business, doing nothing wrong.  They suggest he was talking on his phone. Even if he was, it would make no difference, because walking and talking is not unreasonable.  If it did, then that means everyone at lunch when they walk alongside with someone should shut their mouth because that would be unreasonable.  Don’t talk on your cell phone. Now we must all walk in silence. The defense has presented no evidence that our client did anything wrong. From now on in America, we must walk in silence.  That’s ridiculous. 

While in a place where he had every reason to feel safe, he was watching his surroundings like everybody else; he just happened to step in the wrong space at the wrong time.  The defense has presented you no evidence our client did anything wrong. And the plaintiff certainly did not act unreasonably that day because he was in a place where he had every reason to feel safe while walking and not staring at his feet; he encounters something that absolutely did not belong there, and is extraordinarily dangerous, he fell and smashed his knee on the concrete floor and wound up losing his ability to walk pain free… for the rest of his life.  

So I ask you folks please bring back the only verdict under the law and evidence that is justified which is zero comparative fault.  We talked about in jury selection some people felt automatically there should be some fault. None of those people are sitting on this case.  Every single one of you said “absolutely not”, you would not do that, and we took your word for it, and we are at peace no one is going to do that.  There were a lot of people called, but only a few were chosen, and based upon your representations, and based on the law and the facts, there is only one true verdict, ZERO comparative fault.  


Every month, we focus group cases just like this one.  We focus group our own cases, and we can do it for you as well.    The information we obtain, the feedback from potential jurors is nothing less than GAME CHANGING.  We can do up to 3 focus groups per event. If you have a case, any type of Injury case that you would like for me to focus group for you, please call me and let’s get to work on avoiding the land mines you are going to step on if you don’t do this.  If your case is worth trying, it is worth conducting a focus group on.   

And remember:  You can never settle your case for what a jury may give your client at trial.  




How many of you feel that if a person trips and falls, they must be at least partially at fault for their own injuries, no matter what the evidence shows?  

John Griffith
Connect with me
Nashville Personal Injury Trial Attorney
Post A Comment