Common tricks by landowners and their insurance companies to make you lose your case

When it comes to jury trials and litigation, there are all different types of landowners involved in slip and fall litigation -- some are honest and trustworthy -- others are not.

Shaw Law Offices has encountered different types of legal "tricks" in the industry to prevent you recovering money for your slip and fall injury.

1.  You Didn't Have a Right to Be There

The first type of argument is that you did not have a right to be on the land as an "invitee" but rather were a mere "licensee" or worse, a "trespasser" and thus, you were not entitled to be protected to the fullest extent of the law by the landowner.

Bunny

Remember, in Indiana your right to be on the land in the first place determines the standard of care (the degree to which how careful) the landowner must be.

The 3 standards of care depend upon how the person on the land is classified.  The 3 types include:

  • Trespasser: landowner must refrain from willfully or wantonly (intentionally) injuring the entrant after discovering his presence.
  • Licensee: landowner must refrain from willfully or wantonly injuring the entrant or acting in a manner to increase his peril.  The landowner must also warn a licensee of any (hidden) latent danger on the premises of which the landowner knows about.                                
  • Invitee: landowner owes the highest duty = landowner required to exercise reasonable care for entrant's protection as long as he remains on the land.

The Indiana Supreme Court in the case of Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991) said that the highest duty -- the highest standard of care -- must be applied towards "invitees."

That doesn't mean you needed an engraved invitation to be on the property -- but rather, that the landowner generated some benefit -- money or otherwise -- from you being there.

This is usually the most common status of a person upon the land -- but not always.

Defense lawyers often come up with innovative and creative ways to convince a Judge or a jury that you didn't have any economic benefit to the landowner when you went to its land.  This doesn't mean you needed to buy something, but rather that you could have.  Customers are considered "invitees."

2.  Missing Evidence Like Videotapes of the Fall

You'd think those big box stores and other stores with multiple cameras hanging down from the ceiling (they're everywhere nowadays, it seems), would be able to produce one simple, single videotape of your fall.

After all, you filled out an incident report, right?  Why wouldn't the business keep a copy of the videotape?

Well, one simple answer is that the videotape answers the question of what was on the floor or the liquid and why you fell.  Since it often takes many months for an injured person to see an attorney about their slip and fall legal rights, companies and business conveniently "lose or tape over" these incidents on a frequent, but alarming basis.

Big box stores and other retail establishments can't always be trusted (one exception I have found through the years is Walmart, if there's a videotape and an injury, Walmart typically will produce the videotape). But stores like Meijer's rarely seems to have videotape of the injury. It makes us skeptical at times.

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Indiana courts have laws that pertain to missing evidence situations.

It is called Spoliation of Evidence. And sometimes a jury can be told that the missing evidence must be construed as being unfavorable to the store if they fail to produce it. But, in order to achieve that instruction, a court will do an analysis of the missing evidence -- why it happened and how important the missing evidence is to the injured person's jury case.

The courts uniformly condemn spoliation, and the intentional destruction of potential evidence in order to disrupt or defeat another person's right of recovery is highly improper and cannot be justified. Once spoliation is found, potent responses exist under Indiana Trial Rule 37(B) authorizing trial courts to respond to discovery violations with such sanctions “as are just,” which may include dismissal of all or any part of an action. Determining whether sanctions are warranted and, if so, what they should include, requires a court to consider both the spoliating party's culpability and the level of prejudice to the party seeking discovery.

Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. A court's response to the loss of evidence depends on both the degree of culpability and the extent of prejudice. Even if there is intentional destruction of potentially relevant evidence, the sanctions may be limited if there is no prejudice to the opposing party. In addition, even if there is an inadvertent loss of evidence but severe prejudice to the opposing party, that too will influence the appropriate response, recognizing that sanctions require some degree of culpability.

At Shaw Law Offices, we believe that missing evidence can help your case even if it is not produced as long as the business or landowner:

1.  Knew you were hurt;

2.  You filled out an incident report;

3.  And Shaw Law Offices requests preservation of the videotape in a letter at or near the time you hired us.

Don't give up hope if the videotape is missing.  Let us do our job and we can make it work out.

3.  Keep Warning Signs up 24/7 All Day, Everyday to Convince a Jury You Weren't Being Careful After You Were Warned of a Dangerous Condition

Like most convenience stores, the greatest number of slip and falls occurs just inside the doors, where the customers can drag in wetness or water during snowy or rainy weather.  Many convenience stores do not handle this dilemma properly (I've even seen one store just place cardboard instead of a liquid-resistant mat inside the doors - of course it became wet and injured a young girl).

Gas stations with convenience stores are often those types of businesses in Indiana that follows the "better safe than sorry" theory of warning signs placement.  They often place "wet floor" warning cones or yellow triangle warning signs near the entrances of the store or next to the ubiquitous coffee and self-serve soda fountains at all times -- regardless whether the floor is wet or dry.

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You might ask yourself -- "why would a business place a warning cone or yellow warning sign on a dry floor?"

The answer is simple -- convenience stores and gas stations are practicing "prophylactic slip-and-fall defense law" = just in case anybody falls and is injured, the defense lawyer will assert a defense that the "plaintiff should have discovered" the dangerous condition of the floor.  (This is one of the Indiana affirmative defenses to slip and falls based upon the current state of Indiana law which follows the Restatement, 2d definitions of premises liability and landowners' duties to customers).

It's a sneaky trick and it is often used effectively during jury trials by unscrupulous fast food restaurants (I've also seen many convenience stores use this tactic, too).

Don't assume a slip and fall is your fault.  We know it can be embarrassing.  But call us and let us determine what safeguards were met -- or violations occurred.

We Get You Back on Your Feet.

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