Updated: Jul 18
So, you have had a slip and fall accident at a business location, and now you have questions about how to proceed. In this article, I will attempt to answer the questions I hear most often about a slip and fall.
How soon should I contact an attorney about my fall?
ANSWER: You should reach out to an attorney as soon as possible. Why do I say that? The business or store where you fell ("the Company") will immediately begin creating an incident report, getting their stories together, and documenting the evidence they think is best for them. However, if you contact an attorney early on, he can send what is called a "spoliation letter." The spoliation letter will direct the Company to retain all evidence related to the fall, and the attorney can specify particular pieces of evidence, such as video of you from the time you entered the store that day, until the time you left.
If the Company fails to retain this evidence after the spoliation letter has been sent to them, it can change the nature of the entire case. Failure to retain evidence after the spoliation letter has been received can result in the Judge telling the jury that they can assume that missing evidence was bad for the Company.
Because most Companies will only retain video for a few days or weeks before it is recorded over or erased, it is critical that you contact an attorney as soon as you can following your injury so that the attorney can get the spoliation letter out before the Company records over or erases the video of your fall.
What makes a company responsible for my fall?
ANSWER: A Company can be responsible for your fall if a dangerous or hazardous condition exists on their property and caused your fall and is a condition that they either knew about or should have known about and failed to correct. The crux of your case will lie with whether or not the Company took reasonable steps to keep the property safe and/or to prevent accidents such as yours from occurring. In other words, were they negligent, and did that negligence cause your injury?
So assuming the dangerous or hazardous condition exists and did cause your fall, how do we prove that they knew or should have known about its existence?
The first way would be to show that an employee was aware of the condition. We might prove this by showing an employee that walked through the area, while the hazard existed, at some point before your fall. We could also use employee knowledge if, after the fall, an employee admits to knowing about the condition.
The next method would be to show that the Company should have known about the condition. For this, we would need to show that the condition existed for a period of time long enough that the Company could have and should have discovered the existence of the condition. This might be that a puddle of water was present in the aisle for three (3) hours prior to your fall. If the Company had been performing regular sweeps of the area, they would have been aware of the existence and could have cleaned it long before you fell.
What is a dangerous/hazardous condition?
ANSWER: This can be a large variety of things. A wet floor, food on the floor, a spilled product, unreasonably slick floors (e.g., after being waxed), trash or other debris in the floor, uneven floors without warnings, code violations such as stairs with too shallow of tread depth, and the list goes on. If you have suffered a fall on a Company's premises and you believe it was due to a dangerous/hazardous condition, contact an attorney, and he will be able to provide a specific case evaluation on this issue.
Do these same rules apply if I fall at someone's home?
ANSWER: Yes, for the most part, the same rules will apply. However, the standard of care can change depending on why you were at the person's home. There are three major designations for people visiting the premises of another: Invitee, Licensee, and Trespasser. A duty of care is owed regardless of which designation you fall within, but the level of the duty is different for each designation. Typically, when you are at a business location, you would be considered an Invitee. However, at most people's homes, you visit you would be a Licensee. This means that the owner's duty of care in preventing you from suffering an injury is less than a business's duty.
The difference in duty is that for a licensee, the dangerous or hazardous condition must be known to the landowner for them to be responsible for the injuries caused. If they are not aware of the condition, no liability will apply. The landowner has no duty to go out and discover potential hazards to avoid injury to a licensee.
I was injured at a friend's or family member's home, but I don't want to sue them. What am I supposed to do?
ANSWER: Assuming they are liable for your injuries because they knew the condition existed and failed to warn you, you would make a claim against their homeowner's insurance. This may be somewhat uncomfortable, but they pay for their homeowner's insurance to cover situations exactly like this. Even if you did have to file a lawsuit because the insurance company wouldn't offer enough to cover your damages, you are still only aiming to collect from the insurance company. The friend or family member would only be being sued in name only because the insurance company is going to pay an attorney to defend your friend or family member, and they will ultimately pay you out of the insurance policy. If you got a judgment higher than the policy limits of the insurance, you could seek to enforce the overage against that individual personally; however, in that situation, I would encourage my client to accept the policy limits and not to seek any additional funds from their friend or family member.