The answer is “sort of.”
While this answer might not satisfy those people who require a simple “yes” or “no” answer to tough questions, let me try to explain Indiana premises liability case law.
In order to prevail on a slip and fall case in Indiana, the injured person must prove:
(1) a hazardous condition on the property caused the fall; and
(2) the defendant had “notice” of the hazard.
This might sound easy to understand, but it can prove to be difficult to the person who is not comfortable with interpretation of the law.
Being able to prove these two essential elements is required to move your lawsuit in front of a jury for deliberation. Frequently, a defendant landowner’s attorney will ask the Court to throw out or dismiss your lawsuit before a jury ever hears what happened. This motion is called a “Motion for Summary Judgment” — which asserts that even if all facts are true as alleged by the injured person, the law does not support a finding the defendant was legally responsible for the injury.
For example, the Indiana Court of Appeals has ruled that “absent some factual evidence, negligence cannot be inferred from the mere fact of an accident, and causation may not be inferred merely from the existence of an allegedly negligent condition.” This holding came from the seminal case of Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 457 (Ind. Ct. App. 2000). In Hayden, the customer was dining at a restaurant owned by Paragon Steakhouse. After eating, he walked on the parking lot to get to his car and fell, breaking his wrist. He believed he fell upon ice and snow and Hayden sued Paragon.
In his deposition (out-of-court sworn testimony used in investigations), Hayden said he did not see any ice or snow on the pavement before he fell. He also added the pavement was not slippery. He merely alleged that he suspected that he slipped on something, but he did not know “for sure” what caused his fall. Id. at 458.
Similarly, in Ogden v. Decatur County Hospital, 509 N.E.2d 901, 903-04 (Ind. Ct. App. 1987), trans. Denied, the Indiana Court of Appeals ruled in favor of a hospital on the plaintiff’s claim based on a slip and fall in the hospital’s bathroom. Plaintiff fell on his head and claimed he had no memory of what caused him to fall. But, hospital employees said the floor was not wet earlier when they had observed it earlier before the fall and there was no debris on the floor.
The Court of Appeals ruled the hospital was not possibly negligent and that “Falling and injuring one’s self prove nothing. Such happenings are commonplace wherever humans go.” Id. at 903.
At first blush, these cases might seem to require the injured person know precisely what caused him or her to fall. But, that’s not quite true. It could be argued the lack of corroborating evidence of what caused the fall was the determinative factor.
For example, let’s look more deeply at this requirement of proof of a “hazardous condition.” Hayden seemed to satisfy this requirement by alleging he “thought” he fell upon ice or snow – but he did not provide any corroborating evidence like seeing a snowy surface or feeling his feet slip out from under him.
Compare this to the subsequent Indiana Court of Appeals case of Golba v. Kohl’s Department Store, Inc., 585 N.E.2d 14 (Ind. Ct. App. 1992), involving a shopper who fell upon a rounded object on a shiny floor. Golba, however, “stated in her answers to interrogatories and responses to request for admissions that she slipped when her heel landed on a rounded object such as a small stone or “B-B” on the high gloss finish of the floor.” Id. at 17. Thus, Golba was able to identify the cause of her fall.
The Court of Appeals ruled that “(t)his case does not require such “inferential speculation.” There is evidence of a defect in or on the floor—Golba’s testimony. The pleadings and evidence leave unresolved a number of questions, including whether there was in fact a rounded object on the floor, whether the floor was inordinately slippery, and if so, whether Kohl’s knew or should have known of the dangerous condition. However, these questions require the weighing of the credibility of witnesses and the application of the test of reasonableness to the facts. The law assigns those tasks to the trier of fact; they are not questions which may be resolved by summary judgment.”
So, while the Court of Appeals seems to be consistent in its approach – you must know what caused your fall – the real difference appears to be that Golba provided more corroborating evidence, e.g. she felt a rounded object and described the floor as shiny.
Consequently, Indiana law does not require that you know the exact substance or item that caused you to fall — it’s okay to recognize it was “something” out of the ordinary without knowing its precise size, source, or composition. But, in order to get to a jury, it is best to provide corroborating evidence of what caused the fall as precisely as you can – slippery items seen or what it felt like before the fall.
Additionally, another piece of good news is that the recognition of the foreign substance or defect can come after you fall. For example, an injured person can describe the ice that caused his fall or liquid that he slipped upon with “circumstantial evidence” like you felt it with your hands as you attempted to stand up. Or after you fall, you felt your clothes were cold and wet, so it must have been a liquid or ice on the floor.
I also believe it is essential to describe the “mechanism” of the fall, too. And not just the source of the defect. For example, I believe it is important to describe your foot as “slipping” when alleging a snow and ice defect.
Finally, another way to identify a hazardous condition can come from corroborating testimony from others and not just yourself — a witness or a photograph or an incident report that describes the hazard is sufficient and can carry your lawsuit to a jury verdict. Hazards can be proven by other means than yourself.
So, in short, while Indiana Court of Appeals cases seem to require you “know” what caused your fall before you can proceed to a jury, the truth is that “knowing” can mean a lot less than an actual identification.
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