Although there are still some independent clothing stores operating around the country, today you’re more likely to find that blouse or sports jacket you want in a national clothing store. Each day, thousands of people shop in clothing department stores across the country. With all those shoppers, accidents are bound to happen.
Store accidents are the primary cause of customer injuries. And while most storeowners are conscientious about maintaining the highest level of safety standards, there is the occasional lapse. When lapses occur, the issue of store liability comes into question. Clothing departments are a breeding ground for customer injuries. Hidden hazards can lurk around every corner. They include:
- Aisle obstructions
- Puncture wounds from exposed pins and needles
- Jagged countertops
- Falling merchandise and unstable clothing racks
- Slipping and falling on uneven, damaged, and slippery floors, and more
People are often embarrassed when they slip and fall or when merchandise falling from a shelf pelts them. Often, the first instinct is to get up and leave the area as quickly as possible. The rush of adrenaline you feel at the time of an accident often masks pain and soreness, which sometimes doesn’t appear until hours later. In some cases, you may not notice your injury until the next morning, when just sitting up causes you to grimace in pain.
If you’re injured in a clothing store and you leave the scene without first reporting the incident to the manager or a store employee, you’ll have a very difficult time later claiming your injuries took place while you were shopping. It’s virtually impossible to backtrack in order to prove your injuries happened in the store.
This is why it’s so important to document a clothing store accident. The old expression “You have nothing to lose and everything to gain” really applies here.
In the best-case scenario, your reporting the incident gives the store the opportunity to take corrective action to remove the hazard so others stay injury-free. Just as importantly, there’s a record of the date and time the accident occurred, making it much easier to link the incident to your injury. Without a verifiable link between the accident and your injury, proving store liability is difficult.
Duty of Care
The law says retail stores have a legal obligation (duty of care) to keep their customers safe from undue harm. This means clothing stores, along with other retail stores, must do everything reasonably possible to eliminate present and foreseeable hazards and dangerous conditions. When a clothing store fails in its duty to protect customers from injuries, they breach (violate) their duty of care.
The underlying act – the dangerous condition or the hazard – which results in injury, the law calls the negligent act. When a store’s negligence results in a customer’s injuries, the store becomes responsible, or liable, for those injuries and the resulting costs.
Saying a clothing store is liable for your injuries is one thing. Proving it is another. Linking duty of care to negligence and then to store liability requires evidence. The evidence must show that the dangerous condition was the direct and proximate (legally acceptable) cause of your injuries. It must also show that you didn’t do anything to contribute to your injuries. Solid evidence is the key.
Creating Definitive Links – Evidence Preservation
Creating definitive, verifiable evidence links between a dangerous condition and your injury is vital in proving store liability. The stronger the evidence, the stronger your injury claim is. Links are established with solid evidence. Here’s a list of evidence you can use in your injury claim:
Ask for medical help
Don’t be a hero. If you’re hurt, ask for help. In addition to having your injury treated, summoning medical care will serve to document the accident and link it to your injury.
For example, if your head were cut and bruised after slipping in a spilled drink, the paramedics can treat your wound, take you to the emergency room (if required), and write a medical intervention report which documents your treatment and refers to the hazard.
Most retail stores maintain surveillance cameras in their various departments. The primary purpose of the cameras is to protect the stores from theft and from unscrupulous people who fake injuries to collect on personal injury claims. Those same cameras accurately record legitimate accidents and the hazards that caused them. The store’s insurance company can view the surveillance videos, which your lawyer can later subpoena if the store denies liability.
For example, if a clothing rack fell over and hit you, the surveillance cameras may have filmed the whole thing and will show exactly what happened.
Photographs and videos
Today, just about everyone has a cell phone with photo and video capabilities, along with built-in date and time info. Using the phone’s camera to document the hazard can serve as strong evidence in your claim.
For example, if you turned a corner and tripped over some boxes left in the aisle, a photograph of the boxes and where they were positioned at the time you fell proves they were there. Missing the opportunity to document the scene can be a crucial mistake. You can bet someone will remove those same boxes shortly after you report your accident.
Store incident reports – logs
Ask for the manager. Most are trained to document customer accidents in store incident reports, or logs. In the report the manager will record the date and time of the accident, the hazard that created the accident, the customer’s contact information, witnesses, and the customer’s version of the event. Ask for a copy of the report. Although the manager may not agree to give you one, a lawyer can later subpoena a copy if a trial becomes necessary.
Ask the manager for the name of the store’s insurance company or, in larger clothing stores, the name of the person who handles insurance claims. If the manager doesn’t immediately have that information, have him direct you to the store’s administrative offices where you can make a report and ask about insurance information.
If you’re shopping with a friend or family member, they can serve as an eyewitness. Good Samaritans who stopped to help are stronger witnesses than friends or family members. They have no personal stake in the outcome, so their word is trusted. Employees make the best eyewitnesses. They not only don’t have a stake in the outcome, but they may make an admission against interest.
For example, in the shoe section of a clothing store, an employee may have previously told the manager other employees were leaving empty shoe boxes in the aisle. This admission against interest can be highly prejudicial against the store and in your favor.
Medical bills, out-of-pocket expenses, lost wages, and pain and suffering
The next step is verifying damages. The store’s insurance company will need copies of medical and therapy bills, out-of-pocket expenses, and verification of lost wages. Collect them and be ready to give copies to the insurance company.
Clothing Store Liability Example
Avery Gudmuther took her 13-year-old daughter Amy to a clothing store at the local mall. Amy chose some jeans, a couple of blouses and a dress. She went into one of the dressing rooms while her mother waited just outside. A few seconds later, Avery and several employees close by heard cries coming from Amy’s dressing room area. As they opened the curtain, they saw blood streaming from her forehead, across her eye, and onto her cheek.
Amy was in obvious distress. Avery and the employees could see blood on the dress Amy had just pulled down over her face. Upon closer examination, they clearly saw there was a rather long pin jutting out from the top of the dress. It too had blood on it. Avery and the employees quickly figured out when Amy pulled the dress over her head, one of the pins meant to hold the tags on the dress had come loose and cut Amy’s face. The scratch looked to be about three inches long. Amy was bleeding profusely. Avery called the manager, and then she called 911.
While waiting for help to arrive, one of the employees blurted out “I’m so sorry. This has happened before. Sometimes when people try on clothes, the pins come out. The manager told us to check the clothes before we put them back on the rack. Someone must have overlooked that dress.”
Avery wrote down the employee’s name. She took out her cell phone and photographed Amy’s face, the dress, and the pin with blood still on it. Avery then asked the manager for his name and asked him to make a written incident report of what happened. Avery asked the manager to check the surveillance cameras. The manager said the store’s policy barred cameras from the dressing rooms for customer privacy.
The emergency room doctor treated Amy. Fortunately, she didn’t require stitches. After receiving a prescription for antibiotics and pain and skin medicine, Avery and Amy left for home. The emergency room doctor told Avery to see a dermatologist as soon as possible about further treatment. The doctor was especially concerned about possible scarring.
Soon after, the dermatologist told Avery and Amy she probably wouldn’t scar, and the scratch would heal within six weeks or so. Amy would have to wear a bandage for several weeks and continue to take antibiotics.
Amy’s emergency room treatment and dermatologist costs amounted to $3,000. Future doctor’s visits and medicines were approximately another $1,000. Amy refused to attend school until her face healed. Avery hired several teachers to home school Amy for the six weeks it took Amy’s face to heal. To care for Amy, Avery took three weeks off from work. During that time, Avery lost $2,500 in wages.
Avery contacted the retail storeowner, requesting the name of the store’s insurance company. She subsequently filed a personal injury claim on Amy’s behalf, claiming the store’s allowing a loose pin to stick out in the dress constituted negligence. Avery demanded compensation to cover the costs of Amy’s hospital bills, the dermatologist’s costs, her out-of-pocket expenses for Amy’s medications, her lost wages, the cost of the home tutors, and an amount for the pain and suffering.
In total, Avery demanded $18,000.
In her claim, Avery alleged the retail store breached (violated) its duty of care to her daughter Amy, and that breach constituted the negligent act that caused Amy’s injuries and resulting damages. To support her claim, Avery produced evidence showing:
- The loose pin was the direct and proximate cause of Amy’s injury. (Avery gave the insurance adjuster the photographs taken of Amy’s face and the pin in the dressing room.)
- The loose pin was a foreseeable dangerous condition, and management ignored it. (Avery gave the insurance company the employee’s name and recounted the statement she made confirming the manager’s prior knowledge of the loose pins.)
- Amy did nothing to contribute to her own injuries. (This went uncontested because there was no evidence to the contrary.)
- Amy’s damages directly related to the costs of her medical treatment, out-of-pocket expenses, Avery’s lost wages, and Amy’s present and future pain and suffering. (Avery gave the claims adjuster copies of hospital and medical bills, prescription receipts, invoices from the teachers who tutored Amy, and a verified statement of lost wages from her employer.)
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