Premises Liability Cases
When we are injured at a business (often called “slip and fall” cases), it is actually a form of what lawyers call “premises liability.” That basically means that whenever a business holds itself open to the public (with the hope of running a productive business and making a profit), someone has to be responsible for keeping the place in a reasonably safe condition for the public. These cases are often called “slip and fall” cases because people often slip and fall in the aisles of a market or what have you. But this area of law really covers any injury on property other than your own where the injury is due to the property owner’s negligence in not keeping the place reasonably clear of dangerous conditions.
If you are injured at a business or on someone else’s property, the first question to analyze is what your status as a guest was. If you were explicitly invited or solicited to go there, or if the business holds itself out as being open to the public, then you will probably have adequate standing to get redress. If a burglar slips on a banana peel while prowling around a gun store, he’s going to have a much harder time finding a sympathetic ear for his case (although this sort of thing does happen from time to time and these cases often garner headlines before being dismissed).
The next question to ask is in many cases is whether the property owner could have and should have recognized and corrected the problem. In other words, proving actual or constructive “notice” is typically part of a premises liability action. If the business is conducting itself in a negligent manner as part of its normal operations, that’s one thing. But if another patron spills a soft drink and ice on the aisle of a convenience store, and you then walk up and don’t see the spill and you slip on it, the question as to whether the convenience store could have or should have identified and cleaned up the mess in a timely manner is an issue that is going to have to be addressed. The Florida statute on this topic, Fla. Stat. § 768.0755, reads as follows:
If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
So, when someone slips on a spill in a store, is the business automatically liable? It depends on whether a responsible shopkeeper would have either put systems in place to identify and correct things like this, or whether the shopkeeper could have recognized (or actually did recognize) and take action on the problem in a reasonably timely manner. If the spill occurs and the next customer slips on it literally within a few seconds, the business is going to make the case that they didn’t have a fair opportunity to rectify the situation. If the business is notified of the spill and doesn’t take timely action, or if the business doesn’t have a reasonable system in place to identify such things, the business is going to have a harder time making out that defense.
What Should I Do After a Slip and Fall at a Business?
What should you do if you suffer an injury at a business or on someone else’s property?
The first thing is that you (or a friend or loved one, if someone is with you) should absolutely, positively attempt to document the exact condition of things at the time of the accident. The business will likely perform its own internal investigation, and they will probably take photographs and document the scene. But don’t be surprised if this is done in the light most favorable to them. Don’t rely on the business to capture the evidence in a way that’s going to be reasonably fair to you. You should also report the incident to the business or property owner right then and there. If you are injured at a business, in a slip and fall or any other kind of injury, but you say nothing, and come back later seeking redress for your injuries, the business is going to say that you’re fabricating the events.
The next thing that you should do is to identify any eyewitnesses and get their contact information. You should also document the identity of the employees that interact with you regarding the event. Store employees come and go, and it very well may come to pass six months or a year down the road that the employee who would’ve provided key information is gone or the other employees (or management) at the store “cannot remember” who was on duty on the particular day when the injury occurred.
Lastly, many businesses have security videos that can provide key details as to the case. The businesses typically have a certain period of time (called a “retention period”) during which they’re going to retain all the footage that’s recorded during a certain period of time, before old footage is either deleted or recorded over (to avoid running out of data or storage space). The retention periods typically range from maybe as long as a month to as short as a week or even a few days. It all depends on the business. Some states have retention periods required by law: at this time, as far as I’m aware, Florida does not. Although it has been suggested that an industry best-practice would be to maintain business security video for between 6 months up to 5 years, this is not set down in the law in Florida at this time.
So you (or your attorney) should deliver a request to preserve evidence (sometimes called a “spoliation letter”) to the business or property owner. If they receive your spoliation letter but fail to retain the evidence, your lawyer later on down the road can request a jury instruction directing the jurors to presume that whatever was on the video was in support of your theory of events.
And, of course, you should seek medical treatment. If the situation warrants it, call 911 for immediate treatment or transport to the hospital via ambulance. Or have a friend or loved one deliver you to a medical provider for treatment. There is no “rule” requiring immediate treatment (such as the rule requiring you to seek treatment within 14 days in order to avail yourself of your PIP benefits in the motor vehicle accident context), but if you’re injured you should seek treatment. And, if there is a significant delay between the time of the injury and the time you sought treatment, you can expect the business and its insurance carrier and their lawyers to make a point of this.
The business (or property owner) and their insurance carrier (if they have one) may perform their own internal investigation of the matter, which may involve an insurance adjuster contacting you in the wake of these events. Whether you speak to them or not is your choice, and you have the right either to speak with them or not. Most personal injury attorneys provide free consultations and will take these kinds of cases on a contingency-fee basis (meaning no out of pocket costs for you and that the attorney doesn’t get any fees unless he or she gets a recovery from the other side). And most attorneys have the experience and know-how to begin taking steps to preserve the viability of your case at its early stages.
If you or a friend or loved one has been injured at a business or on someone else’s property, in a slip and fall or otherwise, feel free to call The Weisman Law Firm for a free, confidential consultation, and of course there will be no out of pocket costs or fees unless and until a recovery is made on your behalf.