How Long Does A Court Take To Impute Constructive Knowledge To Wal-Mart Of A Dangerous Condition?
There is no easy answer to that question, because there are so many variables in the facts that lead up to any slip and fall incident. Whether a one-hour inspections policy is enough for Wal-Mart to escape fault can vary from court to court and judge to judge.
Do hire an attorney to handle your slip and fall claim at Wal-Mart. Do not forego hiring an attorney from a misguided belief that you will be saving money on attorneys’ fees. Statistics show that claims for all types of injuries, whether minor or serious, are more likely to be compensated fairly if an injured person hires an attorney – and this is true even after the attorney’s fees are taken out of any settlement.
Do create an incident report soon after your fall if you are able to do so despite your injuries. Do not forego making an incident report if you are physically and mentally able to do so. Incident reports are very important when it comes to the eventual investigation of your slip and fall injury. Incident reports memorialize what occurred at the time of the fall. Oftentimes employees will be identified as being in the area or in the investigation of your slip and fall claim. Failure to make an incident report can sometimes result in an inability to remember Wal-Mart employees and potential witnesses later.
Do try to provide all details of the hazardous conditions that led to your fall. Do not simply say, “I fell.” Under Indiana law, you must be able to show the cause of the fall. In other words, if your report simply states, “I fell,” but does not state exactly why, that can be used later by Wal-Mart to attempt to get your case thrown out of court via a Motion for Summary Judgment. This is a written document to the court that states that even if everything the injured person says is true, there is simply no way in which a jury could ever find Wal-Mart at fault. So do make sure to label and identify the source of your fall.
If possible, you should use your cellphone to take photos of whatever caused your fall. If you are physically and mentally unable to do so but you are with a person you trust, ask them to take cellphone photos. A photo is worth a thousand words. Even if Wal-Mart has a video of your fall, it is still important for you to show, by a cellphone photo if you can, what it was that caused your fall. Videos, while ubiquitous in today’s society, rarely have enough detail to show exactly what it was that caused you to fall. Cellphone photos on the other hand can be used to get a close-up of the substance or obstruction that led to your injury.
If your claim cannot be settled at the CMI stage, then of course Shaw Law recommends filing a lawsuit in order to get full compensation. At this stage, Wal-Mart’s counsel may attempt to get the case removed. Removal is the process of transferring cases from a state court to federal court. It is provided for by federal statute. The state court will no longer have jurisdiction over your case once the matter is removed to federal court.
Do attempt to file your case in state court and avoid removal of your case to federal court. There are many reasons why state court is more advantageous for your case. However, state courts have no role in determining whether or not a case should be removed to federal court. Federal statutes exist that allow an out-of-state corporation such as Wal-Mart to remove an Indiana claimant’s lawsuit from state court to federal court because of the “diversity of residence” between them. Wal-Mart is based in Arkansas, while persons who fall in Indiana Wal-Marts are typically from the state of Indiana. Therefore, Wal-Mart has a federal right to move your case from state court to federal court.
Why would Wal-Mart do this? There are three main reasons. First, federal judges typically have a much more keen awareness of slip and fall law than some state court judges do. In fact, federal court judges will require strict adherence to all of Indiana law when it comes to proving your slip and fall case. This leads to the second reason why Wal-Mart is likely to ask for a removal – federal judges are known to entertain Motions for Summary Judgment and grant them in favor of the defendant at a much higher incidence than state court judges. The third reason is the law of expert witnesses.
Expert witnesses are individuals who are often hired by a personal injury law firm such as Shaw Law in order to assist a jury in determining facts that show fault on the part of Wal-Mart. There is a big difference between Indiana law and federal law when it comes to the ability of an expert witness to testify regarding facts in a slip and fall. Wal-Mart seeks removal of slip and fall cases to federal court based upon the knowledge that expert witnesses in the federal court system are much more likely to be prohibited from giving testimony favorable to injured persons.
Do try to keep your case in state court. Don’t allow removal to federal court. Shaw Law has found two main ways to attempt to keep your case in a state court rather than federal court. The first way is to destroy the “diversity of residence” argument. If a person falls and is injured in a Wal-Mart store, do attempt to get the manager’s name on the incident report as quickly as possible prior to filing your case. If you are able to identify the store manager at the time of your fall, there is nothing wrong with adding the store manager as an additional defendant to the Wal-Mart Corporation itself when filing your state court claim or lawsuit. This destroys the concept of diversity. In order to remove a case from state court to federal court, there must be complete diversity between the plaintiff and defendants.
In other words, every single plaintiff must live in a different place than all of the defendants. If you are able to add the store manager to your lawsuit, this prevents Wal-Mart from being able to remove your case to federal court even if that manager is later found to have no individual duty to you for your slip and fall injury.
A second way to attempt to defeat removal is through the paperwork of the initial complaint. While this method is not 100% foolproof, Shaw Law has found that adding a request in excess of $75,000 in the “prayer” portion of your state court complaint can initiate deadlines that Wal-Mart will have a hard time meeting. Diversity cases not only require a different domicile for all defendants and all plaintiffs, they also require that the amount in controversy must be over $75,000.
In other words, if an injured person wants to recover over $75,000 for their injuries and Wal-Mart is domiciled in Arkansas while the injured slip and fall claimant resides in Indiana, Wal-Mart is entitled to remove the case to federal court. That leaves the injured person with an option. To keep the case in state court, the injured person must agree to not seek over $75,000 in damages. While this might sound like a lot, most cases are worth far in excess of $75,000. If you do decide to request more than $75,000, the deadline for Wal-Mart to request a removal is 30 days.
In other words, Wal-Mart only has 30 days to remove your case from the moment it first learns of your lawsuit, if the amount in controversy is over $75,000 and that amount is explicitly written in the prayer of your complaint. It is often difficult for a Wal-Mart attorney to receive notice of the lawsuit and file the removal action within the 30-day deadline.
Do hire experienced slip and fall attorneys such as Shaw Law. Do not hire personal injury lawyers that have not taken slip and fall cases to jury trial. At Shaw Law, Attorney Jeff JJ Shaw has tried hundreds of cases before judges and juries, including dozens of slip and fall injury cases like yours. Slip and fall injury litigation is a very complicated process that requires a precise knowledge of Indiana law and what needs to be shown in order for an injured person to recover damages. Do not trust your claim to an inexperienced attorney. Call now for free consultation or text for an immediate response to your slip and fall injury claim.
For more information on Constructing Knowledge Of Dangerous Condition, a free consultation is your next best step. Get the information and legal answers you are seeking by calling (877) 225-5742 today.
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