Why You Should Never Try To Handle a Slip and Fall Without an Attorney

As a personal injury lawyer who handle slip and falls, there are many times I see potential clients come to me after they have already tried to handle the case themselves. They tell me how the store manager was very nice and told them to just send in the hospital bill or how he called to follow up several times and returned all their calls promptly. Then, after the bills were submitted, the returning of phone calls stopped.  What people do not realize is that an injured party's worst enemy in these cases is often time.

The Difficult Standard of Care

Just because you slipped and fell on someone else's commercial property does not mean they are liable for your injuries. These cases are called premise liability claims. To hold a property owner responsible for a condition upon their property that causes an invited guest (such as a store patron) injury, there are four main elements which must be proven.  Those elements are:


1.    There was an unreasonably dangerous condition upon the property, 

2.      The owner knew of the condition or should have known of the condition upon conducting a reasonable inspection,

3.    The condition was the proximate cause of the injury, and;

4.      Damages.

Knowledge of The Unreasonably Dangerous Condition Is the Key Element

The key element in these cases is #2, the knowledge requirement. It is almost impossible to prove actual knowledge unless you find an employee dumb enough to admit he saw it and wandered off to find cleaning supplies without doing anything to protect people from the condition. Often in these cases, the injured party is face with the burden of proving that the owner should have been aware of the condition.  To do this, you must be able to show how the condition was created and/or when it was created.

Preservation of Evidence in A Premise Liability Case

Proving knowledge in a premise liability case means finding direct or circumstantial evidence from which one may deduce or infer that the condition existed sufficiently long enough that a jury would conclude that the owner should have discovered it.  Time between the creation of the condition and the injury is the key factor. For example: If a customer spills a drink on the floor and someone immediately slips and falls, the premise owner will not be liable if he/she had no time to discover it.  If the spill is left there for an hour and the store employees do not pay enough attention to locate it and protect the public, the store owner may be found liable.

The Best Evidence Is the Video

Most large department stores and supermarkets have video cameras throughout the store now.  These cameras serve two purposes: To protect them against theft and to protect them against false claims.  Obviously, video footage of the day of the event can show you how and where the fall occurred. It can also show how the spill was created if you look back far enough. But it must be preserved.

The Duty To Preserve Evidence

If you slip and fall on their property and you report it, you can bet the store safety department will review the video.  However, unless there is specific notice given to them asking them to preserve the exact portions of the video you wish to see, they are under no duty to preserve all or part of the video.  What part of the video that gets preserved if any, is completely up to their discretion if you do not specific exactly what you want.  They can save just the moment of the fall and nothing before or after. You can bet that if the video shows the origin of the condition and that it was there for a long time before the fall, that part of the video will get "recycled" within 30 days of the event unless you request it be preserved in writing.

The Spoliation of Evidence Letter

When you hire a personal injury attorney immediately to handle your case, one of the first things he or she should do to preserve the evidence is send the company a Spoliation of Evidence letter.  By doing so, the lawyer places a duty to preserve the requested evidence. Destroying evidence after having been placed on notice by a lawyer to preserve the evidence can result in a court sanctioning the store owner by submitting to the jury an instruction that they are to assume that the evidence that was destroyed was harmful to the defendant’s case. The letter should specify a time-frame before and after the actual fall to ensure that there is proof of where the condition came from and who addressed it afterward.  Without this evidence being properly preserved, you may not be able to establish you case.

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