You can certainly pursue a slip and fall injury claim against the store, but unless you've got other evidence of how the accident happened, or you can find an attorney who's willing to take your case, you're probably in for an uphill fight.
Why Reporting an In-Store Slip and Fall Is So Important
With many in-store slip and fall accidents, store employees will become aware of the incident either because they witness it firsthand or they are summoned to the scene by another customer. However, there are times when a customer's fall goes unnoticed because there are no employees or customers in the immediate vicinity. When this happens, it is up to the customer to report the fall to a store employee as soon as possible. A prompt report of the fall is important for several reasons:
- Reporting the fall puts the store on notice that something has occurred and documents the particulars (e.g., the customer's name, contact information, location of the fall, alleged cause of the fall, etc.).
- It affords the store an opportunity to investigate the circumstances of the fall while the customer is still in the store and able to provide an account of what happened while the facts are fresh in his or her mind.
- Physical evidence of what may have caused the fall (such as a particular liquid or food substance) will likely still be on the scene.
- It allows the store the ability to assess whether the condition that gave rise to the fall was something that should have been discovered and remedied sooner.
(Learn more about what to do after an accident or injury.)
So let's say you fall in a store after slipping on a wet substance. Startled but seemingly unhurt, you get up on your own and complete your shopping. You decide not to report the fall to a store employee because you're in a hurry and you don't think you've suffered anything beyond a bruised ego. A couple days later, however, things begin to change.
As you're getting dressed for work, you experience a sharp pain in your side that doesn't go away, and you start to think you may have a broken rib. Your fears are realized when you go to the urgent care clinic and the x-ray reveals a rib fracture that is clearly related to your recent fall. What now?
Do You Have Other Proof?
Without proof that you notified the store manager or an employee about what happened, you'll almost certainly need some other form of evidence that your slip and fall happened the way you say it did. Maybe you took pictures of the condition of the floor where you fell, including details of the substance that caused you to slip? Maybe you have the name and contact information of a witness who saw what happened (even if it's a family member or friend who was shopping with you)?
Is There Video of Your Slip and Fall?
In larger stores (and certainly in chains and big-box stores), there's probably some form of video surveillance of the premises. Maybe there's even footage of each aisle/department. If so, you (or your attorney) can write a letter to the store (or to its corporate headquarters) asking that any relevant surveillance video or other form of video evidence be preserved (and not destroyed) while you consider your legal options.
And once a personal injury lawsuit is filed, any video evidence of the produce department on the date of your accident becomes fair game (as part of the discovery process). If the store refuses to turn over the tape, your lawyer can file a subpoena and ask the court to order the store to give you the tape.
It's worth noting that even if you get your hands on the tape, and it shows you did in fact fall in the produce aisle, you still face significant challenges when it comes to proving the store's fault for your slip and fall under premises liability rules, including:
- What substance caused you to fall?
- How long was the substance on the floor?
- Did the store actually know that the substance was on the floor?
- Did enough time pass so that the store should have known that the substance was on the floor, and should have taken reasonable steps to clean it up?
If you've suffered significant injuries as a result of a legitimate in-store slip and fall, these challenges are not necessarily insurmountable. Your best first step is talking to an experienced personal injury lawyer about your situation. There is no guarantee that a lawyer will take your case, but it's also a near-certainty that the store's insurance company won't take your claim seriously if you try to handle it on your own.