Visitor Question

Do I have a case after slip and fall on spilled ice cream at the mall?

Submitted By: Anonymous (Lake Jackson, Texas)

I was walking with my granddaughter in the mall. She saw something at a kiosk, so we walked towards the middle isle to get to the kiosk when I fell completely down to the ground. I was screaming because my left leg was hurting so bad and I could not get up.

I think 3 people came to help me. My granddaughter was crying scared. She’s only 7. They got me up, helped clean me up some and called security to get a report. I did not get their names. I was frantic and not thinking. It was caused by ice cream that was on the floor. It looked almost like the same color as the floor.

I now need major surgery due to the fall. I have had a fusion to my lower disc and have to do physical therapy. The pain is the worst pain I have ever had and the recovery will take about 6 to 9 months. It has been very hard.

I have been told that we have no case because we do not know how long the spill was on the floor. I just have a hard time understanding how they could not be responsible for this? Do I really have no case? Is there anything I can do to get compensation for my injuries and surgery? Thank you.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Anonymous,

As your most unfortunate situation shows, a slip and fall can cause serious injury. Unfortunately, proving that a premises owner or operator is liable for your injuries can be difficult.

Under Texas law, there are four things you would have to prove in order to recover from the owner or operator of the mall:

(1) Actual or constructive knowledge of some condition on the premises by the owner/ operator;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries.

When you were told that you had no case because you couldn’t prove how long the ice cream had been on the mall floor, that person was referring to the first thing that you have to prove – actual or constructive knowledge of some condition on the premises by the owner/operator.

What that means is that you would have to prove that the owner or operator of the mall knew, or should have known, that the spill was on the floor and creating a dangerous condition.

The mall is liable for any injuries caused by someone slipping on the spill only if you can prove one of these conditions:

  • A mall employee knew that the spill was on the floor and failed to clean it up.
  • The spill was on the floor long enough that a mall employee, acting reasonably, should have discovered it and cleaned it up.

Under the circumstances that you described, there would need to be some evidence that either a mall employee had seen the spill (or that someone had reported the spill to an employee) and they failed to act in a timely manner to clean up the unsafe condition.

Without some evidence to establish the actual or constructive knowledge of the premises owner or operator about the dangerous condition, it will be very difficult to win your case.

An example of how the Texas courts treat slip and fall cases can be found in the Texas Supreme Court opinion of Keetch v. Kroger Co.

In the Keetch case, the lower court jury agreed that there was a slippery spot on the floor that was harmful to Ms. Keetch.

However, the jury did not agree that the store knew, or should have known about the slippery spot, so no money was awarded to Ms. Keetch. The decision was upheld on appeal.

If you do decide to pursue a claim, there are a couple of other things you need to keep in mind.

First, Texas has a two-year statute of limitations related to negligence claims, so you would have to file your lawsuit within two years of the date of the injury.

Second, Texas law follows what is known as comparative fault, which allows an injured person to recover damages only if they are 50% or less at fault for their own injury.

A jury would be asked to determine both your percentage of fault and the percentage of fault of the mall owner.

If the jury determined that you are more than 50% at fault, you could not recover anything. If the jury determined that you are less than 50% at fault, then you could recover, but your monetary award would be reduced by the percentage of your fault.

Slip and fall cases can be hard to win.  An experienced personal injury attorney can help you evaluate your potential claim and advise you on how to proceed.

Learn more here: Shopping Mall Injury Claims

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.

Find a local attorney to give you a free case review here, or call 888-972-0892.

We wish you the best with your claim,


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