Why Slip and Fall Cases Are so Hard to Win.
This is coming from an experienced slip and fall attorney. Many people think that, if you slip and fall at a store or restaurant, you are automatically entitled to compensation for your injuries. Nope, that’s not how it works.
While Arizona law requires a business owner to use reasonable care to fix or warn about any “unreasonable dangerous condition” on the business premises, not everything on site is hazardous or unreasonably dangerous.
To establish a claim for a slip and fall, you must prove the premises owner or tenant had NOTICE of the unreasonably dangerous condition. Notice is proven by either showing the business owner or employees created the condition; or the store personnel knew of the condition in time to warn about or remedy it; or the condition was there for enough time that the business owner or employees should have known of it.
If you can’t prove notice, you won’t win your case.
For instance, a customer could walk into a store, spill their drink, and leave without telling a soul. An unsuspecting victim who slipped and fell because of the spilled drink would have no claim against the store because the drink spiller caused the hazard, not the store owner. If the spill was on the floor for a long enough time so that the store owner reasonably should have discovered it, however – and the victim can prove it – then the victim does have a claim against the store.
If you can prove notice, you can expect the premise owner will use two, very effective defenses: (1) the alleged hazard was “open and obvious,” and (2) you should have paid better attention when you were walking. Additionally, if you were injured walking through an area through which you have walked several times before, jurors could find you partially or 100% at fault for your fall because you should have known better. Similarly, if you fall while walking through a dark, poorly lit area, you could be to blame for your decision to do so – called assumption of the risk.
It is conceivable that harm could arise from almost any object or condition. Negligence is the failure to correct or warn of an unreasonably dangerous condition. RESTATEMENT (SECOND) OF TORTS § 343. There is a difference between a dangerous condition and one that is unreasonably dangerous.
In a grocery store setting, for example, most stores keep a “sweep log” to show how often employees actually walk the isles to look for and remedy spills and potential hazards.
Markowitz v. Arizona Parks Bd., 146 Ariz. 353, 356, 706 P.2d 363, 368 (1985).
What Should You Do
If you slip and fall, you may be hurt and in no position to gather evidence as to what happened. That’s part of the challenge with such cases. Unlike car crashes where police are typically called to the scene to investigate and record what happened, if you fall, it’s up to you to figure out what caused it, who witnessed it, and whether the business had notice of the condition that lead to your fall. That can be daunting, particularly if you need medical attention.
If you fall at a business, generally the manager will have you complete an incident report. You may or may not get a phone call from “risk management” to discuss what happened, and that’s usually the extent of the business’ actions. Most premises liability insurance companies automatically deny slip and fall claims and do nothing to help the victims. Such insurance companies fight slip and fall claims, and usually win in court about 95% of the time.
You should always pay close attention wherever you walk, particularly when walking where a liquid spill is not easily seen. You should also walk only where you are supposed to walk.
If you do fall, you will need to take photos of the scene, talk to the one in charge, and fill out an incident report. Tell the manager to save any video footage of your fall. If anyone saw what happened, get their name and phone number. Don’t assume someone witnessed your fall, or that the store’s video cameras recorded it.
If you have questions about a slip and fall, a car crash, or any other personal injury matter, call Kevin Chapman or his team at (480) 833-1113 and we can talk about it.
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