The evidence that is needed in a slip and fall case depends on the kind of accident that occurred. Slip and fall cases (and trip and fall cases) can be broken down into the following types of cases:
In this article, we'll offer some tips on gathering evidence in all three types of cases. If you need a primer on the legal elements of a slip and fall injury claim, see this overview first.
If you slip and fall on ice, snow, water, or some other type of foreign substance, your success in prosecuting your case will depend on whether you were able to get pictures of the condition of the accident scene as it existed the moment that you slipped.
In an ice, snow, or foreign substance case, a picture truly is worth a thousand words. If you cannot get photographic proof of what you slipped on, it can be difficult to impossible to prove your case. Without pictures, it becomes your word against the property owner’s word. Maybe the insurer and the jury will believe you, maybe not.
You might think that this is not fair. You might wonder why the burden of proving what the accident scene looked like is on you, especially if your injury required you to be taken to the hospital, and the premises owner cleaned up the accident scene immediately afterward.
In litigation, for better or for worse, it is always the plaintiff’s burden of proving all of the elements of his/her case. So, in a slip and fall case, the plaintiff has the burden of proving what he/she slipped on, and, in order to successfully litigate a slip and fall case, you generally need more than just your word of what you slipped on.
The best evidence of the accident scene is the photographs that you (or a friend) take immediately after your accident. It is conceivable that the premises owner, an emergency responder, or a bystander will take pictures and that your lawyer can get those pictures in the course of the litigation, but you should not count on that.
As the litigation proceeds, your lawyer will also request the premises owner’s maintenance and repair policies and records. This will allow your lawyer to determine if this condition has ever arisen before and how -- if at all -- the premises owner dealt with it. This type of evidence can be useful proof of negligence, but it does not prove what the accident scene looked like at the time of your accident. Only a reasonably contemporaneous photograph can do that.
Check out Injury Liability for Slip and Fall Accidents on Icy Surfaces for more on what you'll need to prove in this types of case.
If you fall on stairs, the evidence that needs to be gathered depends on why you fell. As discussed above, if you fell on ice, snow, water, or a foreign substance, then you will want to take photographs of the accident scene as it was at the moment that you fell. But if you are able to examine the stairs after the accident, and do not find any foreign substance there, then it becomes less critical to take photographs immediately after the accident. You should take pictures, of course, if you have a camera or camera phone with you. But, if you don’t have a camera, it’s not that big of a deal; you or your lawyer can take pictures later.
In a non-foreign substance case, your lawyer will focus on the design of the stairs. Design issues with a staircase are not always obvious to a lay person, even to one who has just fallen down that staircase. Design problems with a staircase can include:
In order to determine if a particular staircase has design problems, a lawyer will often hire a construction expert to examine and measure the staircase. This will allow the expert to determine if the staircase meets the applicable building codes.
As in a foreign substance case, the lawyer will also request the premises owner’s maintenance and repair policies and records. If the staircase is located in a relatively new building, the lawyer might also request the construction records to try to determine how the building owner and/or contractor managed to build a building with a staircase that violated the building codes. For more detail on establishing liability for stair accidents, see this page on the subject.
An accident involving a trip or slip on the floor or a threshold will generally proceed like a staircase accident, but a floor or threshold case may also involve a failure to warn.
Let’s say, for example, that the threshold has a lip one inch high. You may not think that a one inch high lip is too high, but it can seem like a mountain if you are not expecting it. If there needs to be a lip in a doorway for purposes of function, it would be reasonable for the premises owner to put up one or more signs warning people of the upcoming lip. So, among other things, your lawyer will want to know if there were any warning signs at the time that you fell.