In the third part of our series about slip and fall accidents, we outline how to win slip and fall accidents cases.
Are slip and fall cases hard to win?
The main factor that determines the complexity of slip and fall accidents case is what’s called Burden of Proof. Burden of Proof is a legal phrase you have likely heard before.
In a court of law, allegations must be proven with sworn testimony and tangible evidence. The person making an allegation, has the burden of proving the allegations made.
Put another way, the person making a claim has an obligation to demonstrate that their position is correct based on all available evidence. For example, if a person slipped in a grocery store they would have the “burden of proving” the store or property owner was negligent and therefore responsible for the accident.
What does “burden of proof” mean in a civil case?
You must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not. The context for this definition can be found in Illinois Pattern Jury Instruction 21.01 which the Judge will read to jurors.
Who has the burden of proof?
In a civil case, the person alleging wrongdoing or negligence has the burden of proving those allegations.
The person filing a lawsuit is called the Plaintiff. The Plaintiff sets forth in the lawsuit certain allegations, which if proven by evidence, would entitle the Plaintiff to recover money damages.
The Defendant is the person or entity the Plaintiff has accused of wrongdoing.
For example, imagine Jane Doe slips on water in the freezer aisle of Costco and breaks her leg. In this example of a premises liability slip and fall injury, Jane Doe would be the Plaintiff and Costco would be the Defendant.
Jane Doe would set forth certain allegations in her lawsuit, which if proven, would entitle her to compensation under Illinois law and the Premises Liability Act. The lawsuit may allege that Costco failed in their duty of care to properly inspect the premises or failed to post warnings of dangerous conditions. Jane Doe has the burden of proving each allegation in her lawsuit.
Is it hard to prove slip and fall cases?
It can be very challenging to meet your burden of proof as a Plaintiff in a personal injury case. Ultimately, a jury may be asked to examine all of the evidence and make a judgment on whether you have fulfilled your burden of proof.
Illinois law does not require a Plaintiff to prove matters with 100 percent certainty. Obviously the stronger your evidence the better, but a standard requiring absolute certainty would be very difficult to achieve. Many people are familiar with the term “beyond a reasonable doubt.” This standard only applies in a criminal setting and not a personal injury civil lawsuit.
In a civil case, the burden of proof is described by the phrase “Preponderance of Evidence.” In Illinois, a proposition must be shown to be “more probably true than not.” This standard is referred to as a “Preponderance of the Evidence.”
This phrase does not mean 100 percent certainty. It is more accurate to say that a “Preponderance of the Evidence” is at least 50.01 percent certainty. Even with this standard proving your case for your injury claim can be difficult.
Your slip and fall accident attorney should begin gathering evidence as soon as possible. Witness statements, accident reports, video, photographs, medical records, store policies, store procedures are all useful things to gather to show the dangerous condition where the accident occurred.
What do I have to do to fulfill my burden of proof in a slip and fall case?
In Illinois, a Judge will instruct the jury using Illinois Pattern Jury Instruction 21.02 regarding what the Plaintiff has the burden of proving. Three propositions must be established by a preponderance of evidence for the Plaintiff to win their case and recovery money.
- First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent.
- Second, that the plaintiff was injured.
- Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
The Judge will conclude by stating:
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.
Let’s put this jury instruction into context with an example. Imagine you fell and broke your arm at Walmart because a store employee forgot to post a wet floor sign after she mopped up a spill.
To fulfill the first factor, you would need to present evidence that the store employee failed to clean up the spill properly and because of their negligence you fell. You might be able to use store cleaning policies to show the employee failed to follow written guidelines thus proving Walmart failed to properly clean the floors.
Second, you would need to produce medical evidence documenting your broken arm. Calling an emergency room doctor to discuss your x-ray and provide medical opinions would likely satisfy the burden of proof for the second element.
Third, you must show “proximate cause.” This means a link that one thing caused another. In our example, you would need to show that the negligence of the store employee led to your fall and the consequence was a broken arm. Each of these three factors would need to be proven by a preponderance of evidence or by at least 50.01 percent certainty.
What should I do if I am injured in a slip and fall accident?
Collecting Evidence After a Slip and Fall
After you have suffered a slip and fall and sustained injuries there are key pieces of evidence that will assist in the investigation of your claim and may ultimately decide liability of the property owner where the accident occurred.
What should I look for after a slip and fall?
It is important to look for the following information or items after the fall:
- A representative of the business or establishment to report the fall
- An incident report
- Identify what caused your slip and fall accident
- Video Surveillance
Who should I tell about my slip and fall?
The first person or persons that should know about the fall is a representative for the business, establishment, and/or property owner. It is important to tell a representative so they can report it and create an incident report for the fall.
An incident report for a slip and fall accident is the equivalent of a police report for a motor vehicle accident. The incident report is a written document that gathers information to memorialize the incident. Most incident reports will collect your name, contact information and provide a narrative detailing how the accident happened.
It will also include any known witness information, notations if pictures were taken, your injuries, and other relevant information.
It is important to make sure you review the incident report to make sure that your version of events is accurately captured. Make sure you receive a copy of the incident report for your own records.
The incident report may capture any known witnesses but you should still record witness information to be safe. Slip and fall cases can hinge on whether someone other than a party saw the fall. Witnesses can provide unbiased accounts of an incident and their testimony is weighed heavily.
Ask a witness if they would give you their name, phone number, address or email to be contacted to memorialize the details they may know concerning your slip and fall. A witness may be able to discuss the mechanism of the fall, identify the substance or condition that caused the fall, the length of time the condition was present, and your injuries.
Keeping good contact information for witnesses may be your smoking gun in getting a fast and positive outcome in your claim.
Should I take pictures?
Absolutely! Pictures memorialize the details when you may not remember at a later time. Pictures will assist in recreating the condition and details of slip and fall cases if needed. Taking pictures of the area of the slip and fall accident, any substances or conditions, your injuries, employee name tags, your clothes and shoes will all help and benefit your claim.
What about video surveillance?
Today, buildings and businesses are under constant video surveillance for security purposes. As a result, your accident may have been captured by surveillance. A formal request must be made to preserve any video surveillance that may have captured the accident.
To ensure that any and all video surveillance is preserved for review, request that the a representative save any video and send a written request via certified mail requesting “any video captured on the date of the accident be saved for review.”
Unexpected Evidence Requests
Surprisingly, attorneys and insurance companies for businesses have been requesting the following items or information as evidence into slip and falls:
- Receipts – Slip and falls often occur while you are a customer of a store. Keeping a copy of your receipt establishes that you were lawfully on the premises at the time of the incident. Make sure you keep the receipt or take a picture of it and save the picture to an email.
- Pictures/Descriptions of Clothing – Remember what you wore the day of the accident. Video and picture footage may not be the best quality or your accident happened in a crowd. It’s important to remember what you wore so you can be identified in pictures and videos.
- Pictures/Description of Shoes – Remember the type of shoes you were wearing the day of the accident. You will often be asked to identify the time of shoes you were wearing as evidence of whether you contributed to your fall in any way because you did not wear the proper shoes for the condition of the premises. This argument rarely stands but it will be asked. Make sure you take pictures of the top, side and bottom of your shoes and store the pictures somewhere safe.
The evidence that can be collected for a slip and fall claim are critical to the investigation. Remembering to gather all evidence can be frustrating and daunting. Contacting an experienced law firm can make this process so much easier.
Contact Chicago Slip & Fall Accident Attorneys
If you or a loved one has been injured in a slip and fall accident, you should contact the experienced Chicago slip and fall lawyers at The Kryder Law Group. We’re ready to answer your questions about your slip and fall claim and help figure our what your case is worth. Call us for a free consultation!
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