Shopping Mall Accidents and Injury Claims

According to the National Retailers Federation there are more than 70,000 shopping malls in the United States. Along with the high number of shopping malls are a corresponding number of customer injuries inside those malls.

Common shopping mall accidents include:

Slip and falls are the most common form of shopping mall injury. Uneven and cracked pavement in parking lots and sidewalks, ice and snow, polished and waxed floors in mall common areas, unsecured electrical cords, step-ups into retail stores inside the mall, spilled drinks and food in food courts, crumbled or pinched floor mats, and wet bathroom floors all cause slip and fall injuries.

Escalator injuries can happen when escalators have misaligned handrails, non-synced steps, worn away or nonexistent demarcation lines, broken entry mats, and sudden stops.

Falling merchandise and debris from shelves in retail stores, temporary advertising signs placed within common areas that tumble over, and worn and broken ceiling tiles are all likely to cause injuries.

Trampling is more common than you might think. People, especially small children, are often injured when trampled by careless visitors on special sale days like the traditional “Black Friday” after Thanksgiving and other special sale days. People can trample others at mall grand openings and when the mall hires celebrities to appear, perform or sign autographs.

Dog bites can happen in shopping malls that permit dogs on the premises. Many dogs aren’t used to crowds. Often children will see a dog and want to pet it, which isn’t always a good idea. When two dogs come close to each other they can become violent, sometimes breaking away from the owner.

Assaults and muggings occur regularly in shopping mall bathrooms and in other areas not open to public view. There are also assaults in parking lots. Thugs will secretly follow customers to their cars, surprise them, and rob them of their money and valuables. Although most major shopping malls have security personnel and monitored surveillance cameras, shrewd criminals often know where they have the best chance to strike quickly while making fast exits.

Poorly maintained shopping carts cause injuries. Sharp and abrasive edges can cut visitors’ fingers and hands. Fold-down parts inside the shopping cart can pinch and injure hands and fingers.

Parking lot crashes are a frequent cause of customer injuries. Worn away or nonexistent arrows and markers separating the direction cars are supposed to travel often result in head-on and side collisions. Vehicles can hit visitors while walking to their cars when poor lighting obscures a driver’s sight.

Visitors vs. Shopping Malls

If you’re injured in a shopping mall, you may have two personal injury claims. One against the shopping mall, and the other against the retail store you were shopping in. If you were injured inside one of the retail stores, you deal with the retail store first. Your secondary claim is against the shopping mall.

On the other hand, if your injury occurred in the common area of the mall, your claim is against the shopping mall alone. Common areas of the shopping mall include the areas outside of retail stores, within the mall structure and in parking lots. This includes the area where people walk, the food court, public restrooms, elevators and escalators.

Liability for Injuries

The shopping mall’s owners are ultimately responsible, or liable, for customer safety. This means the mall owners have a legal duty to protect their visitors from harm.

To be more specific, the law in all 50 states says shopping mall owners have a very strict legal duty of care, an obligation, to protect visitors on their property from undue harm. This doesn’t mean the shopping mall owners are liable for every injury to customers. It means they have a duty to protect visitors from injury-accidents that are foreseeable.

For example, if an escalator suddenly stops and the inertia knocks you down onto one of the steps, breaking your arm, the shopping mall is probably liable. (You may have a secondary defective product claim against the escalator manufacturer as well.) In this case, the shopping mall had a duty to inspect and maintain the escalators to ensure they don’t break down while visitors are on them.

Obviously, no shopping mall owner would ever intentionally cause an escalator to stop while visitors were on it. So they might claim the escalator breakdown was unforeseeable.

However, because of the very strict duty the law puts on shopping mall owners to protect their customers, the courts would not likely accept that as an excuse. Escalator breakdowns are foreseeable events. It’s up to shopping mall owners to make sure they don’t happen. When they do, the owners are almost always liable.

On the other hand, if another customer were to drop her shopping bags on the floor directly in front of you and you tripped over them, breaking your arm, the shopping mall would probably not be liable.

For the shopping mall owner, the escalator accident/injury was foreseeable. The shopping bag accident/injury was not foreseeable. The shopping bags were not under their control. They had no duty to inspect or maintain them as they would the escalator. Your injury claim would therefore have to be against the visitor who dropped her bags in front of you.

You don’t have to be a paying customer to receive the protection of the shopping mall’s duty of care. If you’re at the mall to window shop, meet friends, or you’re there for any other legitimate reason, you’re a visitor who has a right to the mall owner’s protection from undue harm.

Evidence: What you need to win your injury claim

All shopping mall accidents aren’t as clear-cut as the escalator incident. Although the law requires shopping malls to protect its visitors, it doesn’t say malls are automatically liable when a visitor is injured. Unfortunately, it’s up to the injured visitor to prove the shopping mall was liable for the injuries and resulting costs (damages).

To prove the mall’s liability, you must have evidence showing the accident was foreseeable, and that it was the direct and proximate (legally acceptable) cause of your injuries. In other words, you have to directly link the accident to your injury.

To create the link requires evidence. Your injury claim begins and ends with evidence. Without credible evidence, your personal injury claim will likely fail. It’s the key to success. Here’s where to begin:

Ask for security personnel
If you’re in the common area and you’re injured, look for security personnel. You may have to go to the nearest retail store and ask one of the employees to call security for you. It’s very important to have your injury documented.

When security arrives, take them to the accident scene and show them what caused your fall. They’ll make a detailed incident report. The report will include the date and time of the accident, the reason for your fall, the type of injury, your contact information, and other notes relevant to the accident.

Ask for medical care
If your injuries are serious, ask security to call 911. Most security personnel have first-aid kits. They may stop the bleeding or take additional preventative measures until the paramedics arrive. If you go to the hospital, the paramedics will create a patient treatment report. The report will contain your version of the accident and the treatment given to you. Ask for a copy. You’re entitled to one.

One warning is to be careful you don’t overcompensate by requesting paramedics if your injuries clearly don’t require them. If the insurance company denies your insurance claim against the mall, you may be responsible to pay the paramedics’ costs.

If the paramedics take you to the hospital, the admitting staff will create a medical admitting chart. Your emergency room physician will use it to record the diagnosis of your injury, your prognosis, and a list of prescribed and over-the-counter medications. You can get a copy of your chart for a nominal charge.

Take photographs and videos
While waiting for security, take out your cell phone and photograph the accident scene. Be sure the date and time stamp is on. If the problem was spilled food or liquid, it’s highly likely someone will remove the spill, so it’s important to act quickly.

Take photographs and video of the spilled food or beverage. If the beverage was a clear fluid, like Sprite, photograph it at an angle sufficient to actually show the liquid. Because it’s clear, you may have to get down as low as possible to get the proper angle. Also, photograph the surrounding area to show the context of the scene.

Speak to witnesses
Witnesses are always important. While family and friends make good witnesses, independent Good Samaritans are even better. They don’t have a financial interest in the outcome of your insurance claim.

Grab the closest piece of paper, even if it’s the back of an envelope, and ask the witnesses to separately write down their contact information, a description of what they saw, and the date and time of the accident. Their written descriptions don’t have to be notarized or sworn to. That’s not a legal requirement unless challenged in court.

Check for surveillance cameras
You can be sure there are plenty of surveillance cameras in the indoor and outdoor common areas. You may not see them, but they probably recorded your injury. For example, if while leaving a restroom, a thug or thugs confront you, the assault is likely on tape. Because assaults are foreseeable events at shopping malls, mall owners have a duty to employ sufficient security personnel to prevent these criminal acts.

Gather your medical bills, receipts, and treatment records
Gather copies of all relevant documents as proof of your damages. This evidence includes copies of your medical charts and bills, prescription receipts, and a letter on your employer’s letterhead verifying your lost wages. The insurance company needs these to help calculate your settlement. Your medical bills ultimately help to calculate your compensation for pain and suffering.

Speak with attorneys

If your injuries are soft tissue like minor cuts, bruises or swelling, you can probably handle the claim on your own. You will have to file an injury claim with the mall or retail store’s insurance company and negotiate your settlement with the adjuster. If your case is straightforward and you’ve documented your costs, you shouldn’t have much difficulty getting a fair settlement offer.

If the injuries are the more serious hard injuries like broken bones, head injuries, or if you were the victim of an assault, you need an attorney. An attorney can do things you can’t and when the stakes are high, you need a lawyer’s expertise. He can subpoena mall surveillance tapes, inspect security personnel records, review mall inspection schedules and review other evidence supporting your shopping mall accident claim.

See an example of a shopping mall accident demand letter here.

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