Slip & Falls – Not So Simple
We regularly get calls from potential clients who have slipped and/or fallen inside a supermarket or other type of store. Many callers assume that, because they injured themselves in a store, the store is liable. This is not the case.
A store owner is not the insurer of its patrons’ personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. (See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205)
This “reasonable care” may require store owners to regularly inspect or sweep the store, looking for dangerous conditions such as spilled goods on the floor and promptly remedy the spill and/or place warnings signs around the spill, or other dangerous condition.
“Evidence of a store owner’s failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant’s negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.” (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1211)
But what if we don’t know how long the slippery substance has been on the floor? This can be problematic for a plaintiff. There may be surveillance footage which captured the moment the spill occurred but (a) you may never get access to it; (b) it may show that the spill occurred moments before the plaintiff fell. If the spill was caused by another customer and occurred mere moments before the plaintiff injured herself, it may be difficult to argue that the store had notice of the dangerous condition and a reasonable opportunity to warn of it, or remedy it before the plaintiff was injured (assuming the store can establish it conducted regular, periodic checks of the premises).
We often get calls where the injured person says something like, “I don’t even know what I slipped on.” That’s problematic.
“To meet its burden of proof, a plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”
Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205-1206 [emphasis added].
If we don’t know what you slipped on, it is that much more difficult to establish when/how the dangerous condition was created.
Though it’s probably the last thing on your mind if you have slipped and fallen in a store – find out what you slipped on! Get names of witnesses and employees who have helped you. These persons may know what you slipped on or may have seen the dangerous condition as it was created. You may need this information to pursue your claim.
Another thing we hear often by potential clients is, “The employee told me, ‘people slip here all the time.’” That may be true, but without more, it doesn’t guarantee success in your case.
In a recent case, Peralta v. The Vons Companies, Inc., 2018 Cal. App. LEXIS 586, Ms. Peralta slipped in Vons near the deli on an unknown substance. An employee who helped Ms. Peralta after her fall testified, “many times the employees often fall in this area, taking things in and out of there, the employees fall in that area.” Without anything more, this statement was objected to on hearsay grounds and kept out of trial. Therefore, such comments are not enough and may never even be heard by the jury! Don’t think your case is a “slam dunk” simply because an employee commented that people have fallen in the area before – more investigation is needed and this is why it is important to get an attorney as soon as possible.
Slip and fall cases can be extremely difficult cases for plaintiffs and that’s why it is important to preserve as much evidence as you can at the time of the fall. Get names of witnesses and employees. Take photos of the offending area. Try to figure out what caused you to fall. Preserve your footwear and clothing (especially if it becomes soiled by the slippery substance). The facts matter! If you slipped because another customer spilled their water on the floor two minutes before you fell, it’s an entirely different case than if you slipped because a refrigerator was leaking water onto the floor for days/weeks and the store knew about the leak.
If you have been injured in a slip and fall, and you think you might have a case against the owner of the premises, give Heiting & Irwin a call.