What to Prove
In order to win a slip and fall case, 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 elementary, but it's amazing how many times the two elements can get confusing. Being able to prove these elements is necessary to move your case forward to a jury. Oftentimes, a defendant property owner's lawyer will file what is called a "Motion for Summary Judgment" which asks the Judge to throw the case out of court before a trial because one or both of these elements cannot be proven. This is because Indiana law follows laws from a long time ago that require these two elements be shown in order to win.
Let's look first at "hazardous condition." This is a legal term that simply means that "something" improper caused your fall. It can mean a foreign object on the floor like a BB or a pellet. It can mean a slippery substance on a floor like water or snow/ice or oil. It can mean a crack in pavement; uneven concrete; or even a pothole. It simply means that something happened to cause your fall other than you tripping over your feet or fainting.
Many people mistakenly believe that if you fall on an owner's property, that it must pay for your medical bills and pain. That' simply not true. The property owner is not like an insurance company that must pay for your bad health -- you can only recover if you show that a hazardous condition caused your fall. That might seem unfair, but it's settled Indiana law.
That's why it's so important to attempt to document what caused your fall afterwards. Fortunately, Indiana law does not require that you know what caused your fall before you fell -- it's okay to recognize the hazard after your fall. For example, it is okay to fall and then realize it was ice that caused your fall when you felt it with your hands attempting to stand up. Or that you fall and realize after your fall that your clothes were wet, so a liquid must have caused your fall on the floor. Indiana law says that's okay to recognize the hazard after you fell.
Additionally, it's sufficient to recognize the hazard by means other than yourself -- a witness or a photograph or an incident report that describes the hazard is okay to keep your case moving forward. Hazards can be proven by other means than yourself.
The second thing you must prove in order to win is "notice." This is a trickier concept. Many people have a hard time understanding why "notice" to the Defendant property owner is required to be proven by the injured person. Once again, it's old Indiana law. How long the hazard existed helps determine whether the defendant knew or should have known about the hazard. Clearly, if something is completely unknown to the defendant and impossible for him to discover, you cannot win your case. That wouldn't be fair to the property owner.
On the other hand, if you can show the hazard was caused by the natural activities of the property owner itself (like a leaky cooler in a grocery store), you might not be required to prove "notice" at all. It might be assumed by law.
The idea of notice is fairness to the property owner. The law requires that a defendant property owner have a reasonable opportunity to remedy the defect. For example, if a pothole existed for a few months, that would probably be unreasonable for the property owner to ignore it. But, on the other hand, Indiana law doesn't require the property owner to plow his parking lot during a snowstorm because it would simply get filled again, even though snow is certainly a "hazardous condition" that can cause a fall..
There are an infinite amount of situations in which a person can fall. Proving "notice" is dependent upon those facts and each situation is different. A jury will decide what is a "reasonable" amount of time to allow a defendant property owner to remedy his hazardous condition.
We will examine some specific fact situations regarding "notice" in future blogs.
Thanks for reading.