The burden is on you to prove your slip and fall claim. Learn what kind of evidence you’ll need to get the injury compensation you deserve.
Falls send approximately eight million people to American emergency departments each year. Slip and fall accidents account for about one million, or 12 percent of these visits. ¹
While slip and fall accidents are common, not every slip and fall victim will have a valid injury claim or receive compensation from the property owner’s insurance company.
To maximize your compensation, you’ll have to prove to a claims adjuster how your fall came about, how you were injured, and the extent of your injuries.
Reliable evidence is key in successfully bringing a claim against the property owner. Whenever possible, begin collecting evidence of your slip and fall injury immediately after it takes place.
You’ll need critical evidence such as pictures, medical records, and more to support your claim for injury compensation.
The Burden of Proof is on You
As the victim in a slip and fall incident, the burden of proof is on you. To win your case, you or your personal injury attorney need to show that someone else was responsible for the conditions that caused your slip and fall injuries.
You will also need to show the property owner’s responsibility by a “preponderance of the evidence.” This means showing there was a greater than 50% chance that a property owner caused your injury.
The evidence required to support your burden of proof will vary depending on the facts of each slip and fall incident. Also, the weight of each piece of evidence isn’t the same for every case.
But, it’s essential that you provide strong evidence for every element of your claim to receive the compensation you deserve.
It’s your job to prove the at-fault party:
- Had a duty of care to avoid causing injuries to you and others
- Violated that duty by creating an unsafe condition or failing to take reasonable precautions to avoid one
- Directly caused your injuries through this violation
You must also show that you sustained real and measurable damages (or losses) from your injuries.
If you can’t produce clear and convincing evidence of fault, or proof of your injuries, an insurer may reject your claim.
Proving the Property Owner’s Duty of Care
Slip and fall cases are rooted in premises liability law. This area of the law says that property owners should protect visitors by taking reasonable efforts to avoid potential harm.
A property owner doesn’t have a duty to keep customers or visitors safe from all dangers, but they do have to prevent harm from a condition or object that is likely to be dangerous.
Slip and falls victims must show:
- The property owner knew of an unsafe condition
- The owner failed to fix it
A property owner’s knowledge of the dangerous condition is often the most challenging point to establish in a slip and fall case, but it’s not impossible.
Two forms of evidence commonly used to show knowledge are surveillance videos and incident reports.
Video footage is critical because it shows the timing of events leading up to an accident. For example, a video can show when someone spilled marbles in the aisle of a toy store, who saw the marbles, and how long it took to remove them.
Long delays in repairing dangerous conditions can help prove that property owners knew (or should have known) about a risky situation but didn’t take reasonable actions to ensure the property was safe for visitors.
Incident reports are typically created by stores and other businesses when workers or visitors are injured on the property.
An incident report will usually include specific details of an accident. If these details are similar to the facts of your case, you can use them to show that an owner was aware of a past condition that caused harm yet didn’t take the proper steps to correct it.
While it’s highly unlikely that a property owner will voluntarily hand over their surveillance films or incident reports, you or your attorney can request the items in a subpoena as part of the litigation discovery process.
What is a Subpoena?
A subpoena is a court order requiring someone to either testify in a case or produce certain evidence.
Subpoenas can be used to request:
- Incident reports
- Surveillance videos
- Insurance or financial records
- Employee and payroll records
- Maintenance records
Both parties to a lawsuit can issue subpoenas. If an attorney represents you, your attorney can issue and sign subpoenas for you. If you’re representing yourself in a lawsuit, you might be able to issue your own subpoenas, depending on the court.
If owners receive a subpoena and don’t hand over the requested evidence, they could face contempt of court charges. Parties charged with contempt of court will face civil or criminal penalties, including fines and jail time.
In limited situations, the receiving party can legally refuse to comply with a subpoena. For example, a person or business might deny a subpoena request if the evidence is lost, privileged, irrelevant, or could lead to criminal charges.
In most states, you can only issue a subpoena after a lawsuit has been filed. However, you don’t have to file a lawsuit to prevent evidence spoliation by telling the property owner not to destroy evidence in your injury claim notification letter.
Evidence of the Unsafe Condition
Evidence of an unsafe condition is typically easier to gather than evidence that an owner had a duty to protect a customer or guest.
Common unsafe conditions include:
- Broken decks, stairways, or handrails
- Damaged, unlighted, or icy sidewalks and parking lots
- Cluttered common areas
- Fire alarms that are either broken or without batteries
- Wet floors
Physical evidence, like the actual broken fire alarm, can prove a condition is unsafe. But an injured person can also show that a risk of harm existed via witness statements, photographs, and videos.
If possible, collect this evidence at the scene of the slip and fall immediately after it happens. If you’re not physically able after a fall, ask someone with you or a witness to help.
Collecting evidence at the scene immediately after the accident is ideal but not always possible. If necessary, you or someone acting on your behalf should return to the scene as soon as possible to gather whatever evidence remains.
Pictures as Evidence
Nearly everyone carries a smartphone these days, making it convenient to take pictures anytime and anywhere. An added benefit of smartphone pictures is that they’ll have a date and time stamp, increasing their reliability.
If you’ve fallen or slipped, take pictures and videos of the area surrounding the accident scene. Include anything specific that led to your slip and fall, such as visible liquid on the floor, ice on the sidewalk, or a broken stairway.
You can’t take too many pictures after a slip and fall accident.
Photograph anything related to the fall, such as:
- Weather conditions
- Your injury
- Your clothes (including shoes)
- The location of the accident
Ensure that your pictures are in focus, and you have adequate lighting to produce the best picture possible. Never edit or filter any of your pictures. Changing even one picture can ruin your credibility.
If there were witnesses present, ask for their names and contact information. You or your lawyer may want to use their testimony as evidence in your case.
Witness statements help an insurer understand how the property owner failed to remedy an unsafe situation and how your injury occurred.
Try to avoid befriending any witnesses. If you establish any type of friendly relationship, that witness may come across as biased.
On the other hand, if only your friend or family member witnessed your slip and fall, their statement can still be included in support of your injury claim.
Your Written Account of What Happened
Making your own notes about your slip and fall can dramatically help your injury claim. Write a detailed description of what happened before the fall, how you fell, and what happened afterward.
Small details can make a significant difference in your case’s outcome, so be sure to include everything you can remember.
Try to jot down notes as soon as possible after your accident when events are still fresh in your mind.
Proof of Your Damages
Even if you can prove that a property owner owed you a duty and that you fell because of an unsafe condition, you still need to prove your injuries to succeed with a claim.
Evidence of your injuries can include:
- Medical records
- Pictures and videos of your injuries
- Bloody or ripped clothing
- Broken or damaged footwear
- Damaged jewelry or eyeglasses
You won’t get far with an injury claim unless you received medical treatment. Get copies of your records for treatment by paramedics, the emergency room, urgent care providers, or any other treatment or therapy related to your slip and fall injuries.
By preserving the shoes and clothing worn when you fell, you can refute any claims that these items caused your fall.
Proving Your Damages
It’s still not enough to just prove your injuries. You need to go one step further and provide evidence for your damages. Losses you suffer because of your slip and fall injury are referred to as damages in a personal injury claim.
Economic damages in a slip and fall case might include:
- Medical expenses
- Lost wages
- Property damage
- Out-of-pocket expenses
Evidence to support financial losses can include medical bills and receipts for prescriptions or medical devices. You’ll need employment records and pay stubs to prove that you lost wages and the total amount lost.
You can seek compensation for replacement services, including:
- Taxis or rideshare vehicles (if your injuries prevented you from driving)
- Lawn maintenance services
- House cleaning services
Most slip and fall cases also involve non-economic damages. These damages are often challenging to prove as their value isn’t already determined.
Examples of common non-economic damages are:
- Pain and suffering
- Loss of consortium
- Loss of enjoyment of life
- Disability or disfigurement
- Physical impairment
Showing how your injuries impact your life will serve as good evidence for these losses.
An injury journal is a great way to show impact. In this journal, document how you’re feeling physically and emotionally, your physical limitations, and any activities or events you missed out on due to your injuries.
Gathering and Preserving Your Evidence
After you’ve gathered all the relevant evidence for your claim, you must carefully organize and preserve it.
The following tips can help you keep your evidence safe:
- Save your medical bills from every treatment provider. If you can’t find them, contact the medical provider to request a new bill.
- Place any tangible evidentiary items, such as bloody clothing, in a zip-top plastic bag. Label the bag with the injury date and its contents using a permanent marker.
- Transfer any pictures and videos to a computer, flash drive, or cloud service. Print each picture and write a description on the back.
- Request a statement of lost wages from your employer. If you have pay stubs, save them. If you can access them through an online portal, print them from there.
- Consider scanning documents and paperwork to make it easier to email an insurer or your attorney. Once scanned, store the images in the same digital space you store your photographic evidence.
- Put all paper documents and other tangible items in a safe but easily accessible place in your home. Many injured persons choose to start an injury claim file for their convenience and to help keep their evidence safe and organized.
Never give original documents or other evidence to the insurance company. Make copies of documents and pictures of items (like bloody clothing) to include in your demand package.
How an Attorney Can Help
Many accident victims are concerned that they don’t have enough evidence to support their claim. This is natural.
If you’re worried about the strength of your claim, speaking with an experienced slip and fall attorney can provide valuable direction.
The process of gathering and preserving evidence can be time-consuming and stressful. Having a skilled attorney to obtain and keep evidence on your behalf can increase the chances of a successful claim, and take the pressure off you.
Many slip and fall victims choose not to pursue their claim because they don’t think they can afford legal representation. However, most personal injury lawyers not only provide a free consultation to talk about your case and its value, but they also work on a contingency fee basis.
When an attorney agrees to represent a client on a contingency fee basis, no money is required upfront from the client. If the case doesn’t settle or receive a court award, the attorney doesn’t get paid. If they can obtain compensation on behalf of their client, they get paid a predetermined percentage of the settlement or award.
If a slip and fall incident caused your injuries, leave your money at home and meet with a personal injury attorney to find out how they can protect your interests.
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