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I fell in a store. Do I have a case?

I get calls for these types of injuries all the time.  A condition or defect on the property of a business causes you to fall and you sustain injuries due to the fall. This could be due to a slippery floor, a crack in the pavement, a pothole, etc.

Do I have a case?

This is a very difficult question to answer without more information.

In California, the owner/occupier of property is not the insurer of your safety.  Simply being injured at a store does not make it the store owner/occupier’s fault. In California, premises liability is based on general principles of negligence and is controlled both by statute and case law.

The injured party must show: (1) the existence of a duty on the part of the defendant to use due care; (2) a breach of this legal duty; and (3) the breach as the proximate or legal cause of the resulting injury.

Assuming establishment of ownership, an owner or possessor of premises is under a duty to others by virtue of that possession or ownership to act reasonably to keep the premises safe and prevent persons from being injured.

If there are any latent or concealed dangers on the land, the owner/occupier is under a duty to exercise ordinary care either to make the condition reasonably safe for those coming onto the land or to give such persons a warning adequate to enable them to avoid the harm. If the owner/occupier of land is aware of a concealed condition involving an unreasonable risk of harm to those coming in contact with it, and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

A store owner exercises ordinary care to prevent injury to patrons by making reasonable inspections of the portions of the premises open to patrons, and the care required is commensurate with the risks involved. If the owner operates a grocery store where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner/occupier to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that a customer may create a dangerous condition by disarranging the merchandise and creating potentially hazardous conditions.

A duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Foreseeability is a factor in determining the existence of such a duty.

The specific condition which caused your injury may not give rise to liability of the property owner/occupier. Certainly, if the dangerous condition is known to the owner/occupier, and no warnings are given, or steps taken to reduce the risk of harm, the owner/occupier may be liable if that condition causes you harm. Remember though, that if the condition is open and obvious, the owner/occupier can argue that your own inattention to the condition caused your injury!

Liability gets more tricky when we deal with a spilled item in a store. How long was the spill there? Who caused the spill? If we cannot answer these questions, it may be difficult to impute liability to the owner/occupier. The owner/occupier has a duty to make reasonable inspections to ensure that the floors are free of spilled items – you will have to show that the owner/occupier was not making reasonable inspections or that the spill existed for a sufficient time such that the owner/occupier should reasonably have discovered it and cleaned it up and/or placed warnings signs. If you don’t know who made the spill or when it was made, it will be difficult to establish that the owner/occupier was negligent in allowing it to exist on the premises.

With all of the above in mind, what can you do to preserve your ability to make a claim if you are injured in a store?

  1. Take pictures! Photos of the condition not only preserve it as it was at the time of your fall, they allow the attorney to see what the complained of condition looked like. Remember, whether it is an actionable condition is very specific to the condition itself. Spills get cleaned up and potholes filled.
  2. Save your clothing and footwear. The clothing may contain samples of whatever caused you to slip and your shoes will guard against defense claims that you were wearing worn-out shoes or inappropriate footwear.
  3. Get the names of witnesses to your fall.
  4. Find out if your fall was captured by a surveillance camera.  If so, it is likely that the creation of the dangerous condition was also captured.

Since 1976, Heiting & Irwin has handled hundreds of premises liability cases.  Give us a call if you think you may have a case.

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