Apr 13, 2018 | Patrick Stewart
At CHASENBOSCOLO, we frequently consult with clients involved in trip and falls or slip and falls. These cases are so common because falls can happen anywhere, whether it be at home, at work or around a store or restaurant. Specifically, these cases are referred to as premises liability cases because the owner of the premises may be liable to the injured person. The owner may be liable for failing to fix a defect on their property, failing to warn guests or customers about a defect on their property or failing to prevent slips or falls on their property. For more information on slip and fall cases at rental homes or apartment complexes, take a look at my colleague Shakétta Denson’s blog post.
Premises liability cases almost always end up in litigation. When you pursue a claim, the property owner’s insurance company will commonly undervalue your injury as well as your pain and suffering from that injury. These minimal insurance evaluations happen no matter how serious the injury or how much it seems the property owner is at fault. The reason for this is twofold. First, insurance companies hope that injured people will take the low offer rather than go through costly and time-consuming litigation. Second, insurance companies know that if proper evidence has not been collected and maintained at the beginning of a case, it becomes harder for the injured person to prove their case in court.
The common mistakes people make after falling are:
- Not getting full contact information for eyewitnesses
- Not notifying any employees or managers on site
- Not creating any written report or claim with the store on site
- Not taking any photographs or video of the defect or hazard that caused their trip or fall
While your lawyer can help gather this information during an investigation, the best point in time to gather this information is immediately after your fall.
What should I do if I am hurt in a fall?
If you do fall, what steps should you take to increase the chances that you and your lawyer can win your case if and when it ends up in court? The best cases are initially built on four core pieces of evidence:
In order to be liable to an injured person, a property owner must first have notice of the defect on their property. In other words, before the fall, the property owner or their employees had to have been aware that there was a defect or hazard that needed to be fixed, cleaned or warned about to their customers and/or guests. Sometimes when a person falls, an eyewitness will say:
- “I almost just fell there too.”
- “I just told them to clean that.”
- “I just told them to fix that.”
- “I just told them they should put a warning sign up.”
If someone says something like this to you after your incident, get their first and last names and phone number immediately. Their testimony may be the key to proving the owner had notice of the problem and failed to fix it or warn other people. However, that testimony may not occur until 2–3+ years after that incident. Your lawyer will want specific contact information for the witness so they can take a statement, get it in writing and have the witness sign it. During litigation, your lawyer can use this signed statement to refresh the witness’ memory when they testify. The more contact information and description about the witness, the better. Only obtaining the first or last name is not enough. If you only obtain the witness’ first or last name, it may be impossible to locate them to testify. Some witnesses may have to be subpoenaed to come testify, so this contact information will ensure that they can be served and compelled to appear in the future at a deposition or in court. In summary, you would want as much of the following information as possible from an eyewitness:
- First and last name
- Home phone number
- Cell phone number
- Home address
- E-mail address
- Physical description (in case they need to be subpoenaed in the future)
Another great source for notice of a problem on a property are the employees who work there. Employees can be the first people to respond to an injured person. Sometimes those employees may make an offhand comment that shows that the store was aware of the problem before the fall. Clients in the past have had employees tell them things like:
- “That has been happening a lot lately.”
- “We have been meaning to clean that up.”
- “We have not gotten around to fixing that.”
- “We really should put a warning sign up.”
If an employee says something like this to you, get their first and last name and job position immediately. Similar to eyewitnesses, these employees may not have to testify until 2–3+ years after your fall. During that time, the employee may have changed jobs or moved out of the area entirely. If that employee is no longer with the company, the company does not have to voluntarily produce that former employee as a witness. In that situation, your lawyer may have to locate and subpoena the ex-employee just like any other eyewitness.
Alternatively, there may be employees who do not help or talk to you after you fall. We have had cases where employees have seen our clients fall and have laughed, pointed or joked to one another about our client. These employees’ names and positions are just as important because their behavior shows a failure of the company to follow their own policies and procedures, as well as displays a lack of basic human decency. When jurors hear stories like that in court, it can help drive their verdicts.
Lastly, do not leave without talking to a manager-on-duty (MOD). These are usually the last company employees that will speak with you before you leave. If you cannot speak with all the employees discussed above, then the MOD should provide that information, as well as their own contact information, so you can make a proper insurance claim. In summary, when dealing with company or store employees and managers, you should gather the following information:
- First and last name
- Job title
- Physical description (in case they need to be subpoenaed in the future)
Potential clients will often discuss how after they fell, they talked to one or two people and then left the scene to go seek medical attention. Your health and safety should always come before gathering evidence and talking to witnesses. However, if you can talk to employees and managers on the scene, then you should obtain a copy of the written report or a report/incident number. If you do not have this information, then your case is not starting off on the right foot.
Companies should have policies and procedures in place where they create reports after injuries occur on their property. These procedures are in place so that the company can notify their insurance company and handle the claim. These reports should list some combination of the date and time of the incident, a description of the incident, your name, witness name(s), employee name(s), manager name(s) and an incident or reference number. This is basic information that will help prove that you were at the site when you were injured and that you took the appropriate steps to notify the company. If the report is not immediately available and there is no reference number yet, you should also ask for the contact information for the store’s insurance claims representative. You can even call that representative while you are on site.
Occasionally, a manager may offer some incentive or giveaway to you as an “apology” for falling at the store or restaurant. These incentives could include a coupon or discount for a free meal or a free drink. While it is generally okay to accept these, they can really be meant to distract you from getting the right information and making a written report with the company. Remember to avoid these distractions and make a proper report. If you are injured, a $20 free meal will not make up for a life-changing injury.
4. Photographs and Video
Pictures and video can be the most credible forms of evidence because, while the plaintiff and defendant may tell their own version of the incident, the pictures and video speak for themselves. A verbal description of a hole, a puddle, a spill or a defect is never as accurate as photographs or video showing the actual problem. With all that in mind, if you leave the scene of your fall without taking your own photographs or video, it can be a major detriment to your own case. In a time where nearly everyone has a cell phone with a camera and video capabilities, leaving the scene of a fall without taking photographs is inexcusable.
The property owner’s initial response will be to clean a spill, fix the defect or put down a warning sign. If that happens and you do not have pictures that show the conditions at the time of the fall, then it becomes your word vs. the owner’s word. Furthermore, evidence that the owner fixed the defect or cleaned the spill is not admissible evidence at a trial. This is because courts want to encourage property owners to fix defects before another guest or customer is hurt. It is best to photograph or record the scene before any corrections are made.
Aside from not taking pictures at all, a common mistake is taking photographs that are blurry or so close-up that they are incomprehensible. A good photograph is one that you could show anyone on the street and they would immediately know what they were looking at. You should take as many pictures as you can from as many angles as you can. You can place a common object down next to the spill or defect to demonstrate its scale and size (e.g a shoe, a dollar bill, a pen, etc.). Take photographs and video from a 360° view from different distances. The more pictures, the better, because you and your lawyer can always choose which ones to present in court.
Many stores and restaurants will have security cameras inside and outside the store. If you have fallen, you should ask the manager to preserve the security video as soon as possible, and you should put that request in any written report. Since the cameras run for hours at time, owners will usually choose to record over old footage rather than preserve old footage where no incident occurred. Lawyers can send letters asking companies to preserve this information for court. However, if weeks or months have gone by since the fall, the footage may have already been erased. That is why taking your own videos and photographs is just as important as obtaining the store’s own camera footage.
Tl;dr (too long, didn’t read): Tips for Gathering the Right Info After You Fall
Falls can obviously result in severe injuries. Many commercial properties have insurance policies to cover injuries that occur on site. However, those insurance companies are not always eager or willing to pay claims related to those falls. More likely than not, an injured person will have to pursue a lawsuit to be fully compensated for their injuries after a fall. A good premises liability case begins with witnesses, employees, reports and photographs.
At CHASENBOSCOLO, we are not afraid to go to battle with an insurance company in court, but we have to have the right amount of ammunition to win. We have certainly pursued premises liability cases in the past with only some of the evidence listed above. Additionally, we can obtain witness names, employee and manager names, reports, photographs and much more during a lawsuit. However, the best time to gather this information will always be on site immediately after the fall. It ensures that visual evidence is preserved for the future and begins the process of making an airtight injury claim.