Wal-Mart has a total of 4769 stores throughout the United States as of 2019. It is the largest employer in the United States and one of the largest in the world, employing a total of 2.2 million associates. For the fiscal year that ended January 31st, 2019, Wal-Mart’s total revenue was $514 billion. Considering the sheer size of Wal-Mart’s operations, it is no surprise that Wal-Mart is the single most common location for a slip and fall injury.
In order to win a slip and fall case in Indiana, an injured person must be able to prove two things. One, that a hazardous condition on the property caused his or her fall, and two, that the landowner had notice of this hazard. This might sound simple but in practice, it can be somewhat confusing. To move your case forward and get it in front of a jury, you have to be able to prove both elements.
Let’s begin by examining what a hazardous condition is. This is simply a legal term that means there was something improper or dangerous on the land that caused your fall. It can mean a foreign object on a floor, or it can mean a slippery substance on a floor like water, snow, ice, or oil. It can mean a crack in pavement, uneven concrete on sidewalks, or even a pothole. It simply means something happened that caused your fall other than you tripping over your own feet or fainting.
Wal-Mart is a major player in slip and fall litigation throughout the United States, including Indiana. The company tries to mitigate and minimize the effects of all slip and fall injury claims. It does this in many different ways, but one of Wal-Mart’s primary strategies is the use of its own insurance adjustment company. Claim Management Inc. was founded and organized entirely by Wal-Mart. CMI, as it is commonly known, takes all of its direction and guidance from Wal-Mart. CMI deals with thousands of Wal-Mart slip and fall claims each year. Each and every slip and fall claim will be handled by CMI and not by any other company or insurance adjuster.
Let’s examine a “dos and don’ts” list if you are injured in a slip and fall at Wal-Mart. The first thing to remember is not to give CMI a formal recorded statement. CMI’s goal is to limit Wal-Mart’s liability, and they know what works to achieve that goal. Liability is often synonymous with the word “fault.” Fault must be proven in any claim or lawsuit in order for an injured person to recover damages in Indiana. CMI has one loyalty and one loyalty only, and that loyalty is always to Wal-Mart and never to a person injured in a slip and fall. No matter how serious the extent of your injuries, Wal-Mart will instruct CMI to attempt to minimize or eliminate your recovery. In effect, when you file a claim with Wal-Mart and it is transferred to CMI, you are in essence dealing with the enemy. Unfortunately, there is no other option than to deal with the enemy, so you need to know exactly how to handle a CMI claim.
CMI will have an adjuster contact you shortly after you fill out an incident report detailing your slip and fall injury. Your slip and fall incident report was probably filled out in the local store at the time of your fall, when you were still suffering the pain and anguish of the accident. It will more than likely contain slight omissions or errors due to the physical and mental condition you were in at the time, but these can always be corrected or elaborated upon later. However, CMI will do anything in its power to get you to give a recorded statement soon after your fall. They will then use your incident report against you to minimize your claim or to eliminate liability or fault on the part of the Wal-Mart store. A simple rule of thumb in how to handle your slip and fall claim against Wal-Mart would be: do not give a recorded statement to CMI at any time.
Many injured people worry that refusing to give a recorded statement will result in the automatic denial of their claim. The truth of the matter is that cooperating with CMI would work against you rather than for you because CMI’s main goal is to get you to admit to facts that do not support your claim of fault against Wal-Mart. Many people are also afraid that failure to give a recorded statement will make it necessary to file a lawsuit. While this might be true, in my 30 years of experience, I have never settled a claim for a slip and fall with CMI prior to the filing of a lawsuit.
Remember, a claim and a lawsuit are two different things. An injured person makes a claim in order to recover damages without the necessity of filing a lawsuit. If a claim is denied, the only way to recover any damages for injuries is to file a lawsuit in a state or federal court. The difference between a claim and a lawsuit from the injured person’s perspective is very minimal. In both situations, the most inconvenient obligation that Wal-Mart can inflict upon the injured person includes answering written or oral questions in the deposition. In litigation, Wal-Mart can require an injured person to meet or to submit to a medical examination pursuant to Trial Law 35 of the Indiana Rules of Civil Procedure.
In other words, the injured person can give a statement at either the claim stage or the lawsuit stage. However, it’s better to do so during the lawsuit stage with your lawyer present to prepare you and guide you through the process. CMI will often imply things to mislead an injured person into believing that cooperation will result in a settlement and that failure to give a recorded statement will eliminate that possibility. This is simply not true. CMI will not settle your slip and fall claim regardless of whether you give a recorded statement.
Some CMI adjusters will even allege that giving a pre-recorded statement will jump you to the top of the line and get the claim through the system more quickly. Once again, this is not true. You may end up with an embarrassingly low settlement offer, usually in the $500 to $1000 range. However, you will not receive fair compensation for your injuries if you are more severely injured.
A person might think, “What is the harm in answering questions to CMI in a recorded statement rather than answering the same questions from a Wal-Mart attorney later?” The harm is that you would not have had the opportunity to speak with an attorney about the typical questions that CMI will ask regarding your slip and fall claim.
Those questions mainly deal with the legal concept of “notice.” Notice means that the defective or hazardous condition of the land was known to Wal-Mart at the time of your fall. There are two types of notice under Indiana law. One is called actual notice. The other is called constructive notice. Actual notice is when Wal-Mart knows the defective condition was present on its land but did nothing to remedy the dangerous situation. Constructive notice means that the defective or hazardous condition was present for a significant amount of time, such that Wal-Mart can be assumed to have known of its existence. You must establish that Wal-Mart had notice of the defective or hazardous condition in order to recover damages for any slip and fall injury, but it doesn’t matter which form of notice you prove.
Here’s an example of actual notice of a hazardous condition. A Wal-Mart associate is greeting customers as they walk into the store and notices that many of the customers have carried in water and/or snow on their shoes, creating a puddle in the entrance. If the greeter or Wal-Mart associate is aware of that dangerous condition but does nothing about it such as informing maintenance or cleaning up the spill himself, then a person who falls and is injured because of the liquid on the floor has proven notice. In other words, it is not necessary that the management of Wal-Mart knows of the dangerous condition as long as any employee is knowledgeable about the defective or hazardous condition. That knowledge is imputed to Wal-Mart as a whole.
Constructive knowledge is different. Constructive knowledge can exist despite the lack of actual knowledge if the dangerous condition existed for a significant period of time. In that situation, a court will impute the knowledge of the dangerous condition to Wal-Mart for its failure to remedy the situation. In the example we discussed previously, customers were bringing snow or ice into the store during inclement weather, creating a puddle near the entrance. If Wal-Mart does not have any associate or greeter at the door and has failed to conduct inspections of that area for a significant period of time, then it is assumed to have constructive knowledge of the dangerous defects. In other words, if the hazardous condition exists for a long enough period of time, it does not matter whether any Wal-Mart employee or a member of management actually knew of the dangerous condition.