A person goes to a store and on the way in trips and falls and is injured; what then? Let's look at Kentucky law to see how fault and responsibility are allocated as between the shopper and the store. The recent case Dunn v. Wal-Mart is useful.

Dunn was returning a battery charger to a Wal-Mart in Catlettsburg, a store where she had once worked. She walked across the parking lot and a couple of steps up on the sidewalk before she fell and suffered a substantial knee injury.

The accounts of what happened and what caused Dunn to fall varied, as is often the case. Dunn said that she was not looking down when she fell, that her left foot caught on something causing her to fall and, while still on the ground, she saw "uneven concrete sticking up about a half ince to an inch." A Wal-Mart manager denied that there were any cracks or uneven surfaces on the sidewalk and claimed that a poor quality video showed Dunn tripped on her own feet.

Photos taken by Wal-Mart contradicted its manager; these photos showed that the sidewalk had an uneven spot of almost an inch in elevation along an expansion joint where Dunn claimed she fell.

So how does all this get sorted out? Dunn was not looking down while she walked on the sidewalk toward the store. This doesn't seem unreasonable: people generally don't look down at the ground and step carefully while they are walking on a store's sidewalk, it's not really customary to do so and, if it was, would stores put up displays and signs for shoppers to look at when they walk into the store? On the other hand, though, a store is not responsible for everything: they have to make reasonable and diligent efforts to make their premises safe but not fail-safe.

How this gets reconciled is up to a jury: the court said in Dunn that a jury should consider the obviousness of the uneven expansion joint in the sidewalk in assessing the fault of Dunn and Wal-Mart. In other words, a jury could decide that Wal-Mart was unreasonable in not fixing the uneven sidewalk because it could anticipate someone would trip over it. On the other hand, a jury could decide that Dunn was at fault for causing her own injuries, because she was not looking down and paying enough attention to avoid tripping on the uneven sidewalk. Or some of both in what is known at comparative fault: Wal-Mart could be a little to blame and so could Dunn herself.

Lexington, Kentucky injury lawyer Robert Abell represents individuals and families injured and harmed by the negligence and wrong-doing of others; contact him at 859-254-7076.

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