Because of the current state of Florida law, after a fall, you must preserve evidence of the scene. The future of your cases depends on it.
If you’re injured in a Florida slip and fall, you must do three things immediately: (1) report the incident and fill out an accident report; (2) get the names of any witnesses to the incident or anybody who came by after he event. This can include other customers, employees of the business or emergency personnel. Obtaining this information is essential because retails businesses have a high level of employee turnover, and it’s likely that the employee who was there when you were injured will not be working at the store when you make a claim or file a lawsuit.
(3) take photos of the area of the fall. Most people have access to a camera on their phone. Do not depend on the store or its employees to take photos. Odds are if the store’s photos support your position that there was a dangerous condition that caused you to fall, they will disappear by the time a lawsuit is filed. Also, be sure to note if there is any video surveillance in the area of the fall. If this evidence is not preserved initially, then the odds of being able to prove your case goes down drastically. Remember, if you are the person bringing a claim, you have the burden of proof.
About 50% of the folks who call do not get past the initial intake call because they are not able to describe what caused them to fall. Frequently, people are severely injured in slip and falls incidents, but they are not able to explain why the incident occurred. If you are injured in a fall and you are not able to explain why you fell and why you believe the area was dangerous condition on the premises, I cannot help you. A business is not an insurer of every customer’s safety. A business only has to keep its property in a reasonably safe condition.
You must remember that if you are injured in a fall, you have the burden of proof to show that a dangerous condition existed on the premises that the owner knew or should have known about the problem. This is a pretty high standard, which is why a lot of lawyers will not take slip and fall cases.
One concept that folks who are injured have a difficult time grasping is that slip and fall claims are not strict liability claims. The fact that you fell and were injured is not enough to receive compensation. You must prove that the property was dangerous.
The better questions is do some business owners cover-up or destroy evidence? The answer to that question is yes. I have had cases where video of the incident disappeared but an employee testified that after the incident they looked at the video and it captured the event. Not all businesses lose or destroy evidence. I’ve had a number of cases where we received all the information that we requested but as a person injured in a slip and fall, you cannot assume that business will collect and preserve everything, you have to take action steps to protect yourself, which is sometimes difficult in fall down cases.
You see, the typical response of a person who falls down in a business is embarrassment. Human nature drives the person to get up as quickly as possible and go about their business like nothing happened. The person does not think about a filing claim initially and usually decides to file a claim when they realize they have severe injuries. Even though its not natural, it is very important to preserve as much evidence as soon as the incident occurs.
More often then we think, there is video surveillance of the fall. However, if nobody asks the business to preserve the video, it may be erased or copied over. Whether this is intentional or unintentional nobody knows. One of the ways to get around destruction of potential evidence, is to make a formal request to the business to preserve all videos, photos, notes or any other documentation regarding the incident, even if you don’t think you are going to make a claim. It is better to be safe than sorry. If you wait until weeks or months after the event, odds are there will be no evidence to help prove the claim. Any lack of evidence helps the business and hurts the injured person.
On sidewalks, ramps, walkways and in parking lots, folks typically hurt themselves because there is a defect in the area or an abrupt change in elevation. The defect could be a broken piece of concrete, a pot hole, poor lighting, improper curbing, a change in elevation on a walkway that is not marked, or a broken parking bumper.
In grocery and chain stores, people generally hurt themselves when something has fallen off a shelf, something has broken and was not cleaned up properly, or there is a problem with the displays. With displays that fall over, the issue is whether the incident is the responsibility of the store or vendor who may have set up the display. Most store displays are set up by the vendor or seller of the product. Because of this, we have to learn all the facts of the case upfront so we can put the responsibile party(s) on notice of the claim.
Most large business have policies about what to do if a customer claims they are injured in the store or on the store’s property. A frequent policy is that an employee is required to photograph the area of the incident.
If the area is photographed it should document the dangerous condition.
If the customer is hurt, they should seek immediate medical attention because they could have a severe injury. I’ve had slip and fall cases with broken necks, hips, shoulders, and knees.
Yes. In Florida a photograph is admissible if it fairly and accurately represents the object or scene in the photo. So, if you fell and said he took the photo when he got up; if rubbish is on the floor, and the image fairly and accurately represents what the floor looked like after the person fell, then the case is good to go.
This is a loaded question. If you’re injured, you should seek medical attention immediately for two reasons: (1) you could be really hurt and not know it. Many conditions start with minor symptoms and develop into an emergency within hours; (2) the more time that elapses between the date of injury and the date of medical treatment hurts the claim. The longer the gap in treatment, the more likely the other side will argue, that if there was a real injury, you would have gone to the doctor sooner.
If you seek medical attention within 72 hours of an accident, then an insurance company or their lawyer cannot make a big deal about the 3-day gap in treatment because they run the risk of a juror thinking they are being unreasonable.
For more information on Preserving Evidence after a Florida slip, trip and fall claim, Call Guy S. DiMartino, DC, JD.