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I was badly injured in a fall on an escalator, but I had just had a couple of glasses of wine with dinner. My friend says I cannot file a claim because I was drinking. Can you help me?

It is quite likely that lawyers for the defendants in a claim over your escalator accident would argue that your alcohol consumption caused or contributed to your injury. In New York, personal injury law considers “comparative” negligence, which means your role in the accident will be considered in determining how much compensation you are due. But you should talk to an attorney before giving up on a claim.

There are several questions that would have to be answered in regard to a claim for your escalator accident.

First, did an identifiable malfunction or defect in the escalator’s operation cause your accident? A sudden stoppage might be documented by security camera video, or an unsafe gap between the moving steps and the escalator sides would be measurable if we could get to it before repairs were made.

Secondly, the defense would have to argue the effect of your alcohol consumption. Drinks you bought with a restaurant meal could be documented through receipts, but without a blood-alcohol content (BAC) test of some sort, there would be no reliable measure of intoxication. The fact that you ate a meal would weigh in your favor, since food slows alcohol absorption. The time between when you finished your drinks and when you were on the escalator would also be a factor in arguing your potential intoxication.

In general, if a jury determined that your actions – drinking – contributed to your accident, it would then have to decide what percentage of the blame you shared, and your compensation would be reduced accordingly. If you were assigned 20 percent of the comparative negligence, for example, you would be entitled to $8,000 of a $10,000 award. If you were assigned 51 percent of the blame, you could receive no award.

Remember, an initial consultation with a Cohen & Jaffe premises liability lawyer is always free. Contact us today to set up a meeting to review your accident and begin the work to answer the questions about pursuing a claim for you.

Posted in: Elevator and Escalator Accident FAQs