It depends upon whether you can prove the concept of "notice" – that the grocery store owner either knew or should have known about the dangerous lettuce leaf, grape or spilled milk in the aisles of its store. (See our earlier discussion of notice and the essential requirement of a landowner's knowledge).
Remember, in order to win a slip and fall case and recover money damages under Indiana law, the injured person must be able to prove two things:
- A hazardous condition on the property cause the fall; and
- The defendant had "notice" of the hazard.
(This might sound easy, but people often get confused by either or both concepts). A failure to prove either thing can lead to a Defendant business owner or landowner filing a legal document called “motion for summary judgment” to ask the Judge to throw out your case before it ever gets to a jury trial.
In the example above, it would probably be easy to prove the first element: a lettuce leaf, squished grape or spilled milk is obviously a dangerous condition in a grocery store setting that could lead to a slip and fall from an unsuspecting customer.
Very few people would argue that fact, including most grocery store owners.
The pivotal issue is that of “notice” of the dangerous or hazardous condition. Almost every grocery store or big box store case that Attorney Jeff “JJ” Shaw has handled results in an oral statement by the store manager that he or she “was unaware that a grape had been squished on the floor” or “was unaware that a milk jug had leaked its contents in the aisles.” In those circumstances, the defendant is trying to establish the defense of “lack of notice.”
The law requires “notice” or knowledge by the landowner before it can be held liable for the injuries of the customer, because the concept of fairness does not permit a defendant to be held responsible for a dangerous situation that it did not know about and therefore, could not fix or warn about in time before the injury occurred.
But, the law does not require “actual” notice of the spilled milk or squished grape or loose lettuce leaf before the defendant can be held responsible. Indiana law says that if the landowner or business owner “should have known” about the danger, then it can be held responsible just the same as if it actually did have real knowledge.
This concept is called “constructive knowledge” or “constructive notice” of the hazard and a jury will be instructed before rendering a verdict of this law if the injury was to an invitee (customer or invited guest) on the land. (Trespassers are not afforded this “constructive knowledge” requirement but rather are only able to recover if intentional acts designed to injure occurred).
So, how does McKibben Shaw Law and Attorney Jeff “JJ” Shaw prove the grocery store owner or landowner had “constructive knowledge” of spilled milk or a grape or a lettuce leaf?
It starts with a proper investigation. McKibben Shaw Law is allowed to perform “discovery” under Indiana law, which is oral and written questions of witnesses, requests to see documents (such as incident reports or inspection logs), actual inspections of the property itself and depositions which ask for “institutional” knowledge of the incident by the corporation or business itself during their own investigation.
During this investigation phase, it often can be revealed that the business owner or landowner performed inadequate or non-existent inspections of its own property, which means that the hazardous condition was bound to injure somebody at some point, thereby proving “constructive knowledge” of the dangerous condition.
There are many other facts that can prove constructive knowledge as well. It is important to remember that if the business owner or landowner caused the spilled milk or loose lettuce leaf itself, by an employee knocking it over or an improper display stacking procedure, there is no requirement that the injured person prove “constructive knowledge” of the defect – it is assumed by law.
These difficult legal concepts are best left to the hands of an experienced premises liability attorney like Attorney Jeff “JJ” Shaw, who has over 30+ years of premises experience without a single jury verdict loss.
Call or Text (800) 777-7777 and perhaps get Attorney Jeff “JJ” Shaw working on your case within 10 minutes from the comfort of your own home.
We Get You Back on Your Feet.