The Boring Legal Side of Slip And Fall Cases
Slip and fall cases are very complex and a lot of attorneys do not like them. Why? Because Florida enacted this law which makes slip and fall claims very difficult to bring against premises owners.
Fla Stat. § 768.0755 applies in slip and fall claims and states the following:
768.0755 Premises liability for transitory foreign substances in a business establishment.—
(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.
When a business operates and maintains a premises (such as a Dollar Store, Panera, Target, Wal Mart, Best Buy, McDonalds or even an apartment complex), it owes a duty to its customers (the customers are called a “business invitee”). A business owner owes two duties to a business invitee: (1) he must use reasonable care to maintain the premises in a reasonably safe condition; and (2) he must give the invitee warning of concealed perils which are or should have been known to him, and which are unknown to the invitee and could not be discovered by the invitee even if he exercised due care. Williams v. Madden, 588 So. 2d 41, 43 (Fla. 1st DCA 1991). Fredrick v. Dolgencorp, LLC (Fla. 2d DCA May 27, 2020)
Don’t worry about the legal jargon in the statute – that is what my job is for.
What To Do After You Are Slip and Fall
First – do not feel embarrassed, rushed, or be tempted to “brush it off.” If you fell and landed hard, there is a very good possibility that you hurt yourself. This means you should take your time getting up and do not be afraid to ask for help. Do not be afraid to have an ambulance take you to the hospital. If you don’t need to go to the hospital, once you have come to your senses and taken a deep breath, have someone else go get a manager or staff person.
Should I take photos of where I fell after a slip and fall accident?
Here is where your actions can make or break a potential slip and fall case. Do whatever you can to take photos of the area where you fell. Take more than you think you need. If you don’t have a phone or your phone was broken in the fall, have someone around you take photos and ask them for their phone number and email address. Also give them your email address and ask them to send you the photos.
Photos are one piece of critical evidence that can seriously help prove a slip and fall case. Make sure you get up close photos and photos from far away that show as much of the property as possible. Take a video as well if you can.
There are things that you may not realize that could be the difference between losing a case at trial and winning big. For example, dirt that accumulates on top of a puddle of water can shows that water had been there for a certain period of time.
Should I get an incident report after a slip and fall accident?
After you get a staff member and have taken photos of the area, insist that the staff member or manager completes an incident report. DO NOT write your own statement on the business’s incident report. Simply let them know that you slipped and fell in the water/substance and leave it at that. Don’t elaborate.
Do I need to have witnesses after a slip and fall accident?
Make sure that you get the names and phone numbers of anyone around, even if they did not see you fall.
Oftentimes insurance companies will defend fall cases by saying “we didn’t even know that it happened and there were no reports of it.” This means that if the case proceeds to litigation and trial, it will be your word against the business owner. Even if somebody didn’t see the actual fall but saw you on the ground, that can be very helpful. Believe it or not, even if you called your friend after the fall and told them that you fell, that can be very helpful.
If there is no one around and you cannot get a staff member to do a report, make sure you take the photos.
How do I prove that I had a slip and fall?
If at all possible and you are feeling up to it, try to quickly buy something and keep the receipt to show that you were at the premises at the time of the fall. If you are at the store with someone else, have them buy something and KEEP THE RECEIPT.
Although it seems obvious that you visited a place, you need to remember that insurance companies will fight with all they have to win cases. Part of this means that they may say that there is no record of you being at the business at the time of the fall.
This means that if there is no record of you visiting the store, no security cameras that captured you, no witnesses, no photos, and no receipts, there could be an argument that you weren’t even at the store on the date of the fall.
Should I see a doctor after a slip and fall accident?
After you leave, go get checked out by a doctor. I hear “I didn’t think I was hurt after an accident but then I woke up the next day and make back was killing me” all the time. Getting checked out by an urgent care doctor or your primary care doctor immediately after the fall can help save you a lot of pain down the line. If you think you broke a bone (like your arm or wrist), go to an orthopedic walk-in clinic near you (In central Florida, Jewett Orthopaedic Clinic and Orlando Orthopaedic Center have orthopedic walk-in clinics that can treat you).
What are the Most Common Injuries After a Slip and Fall Accident?
Torn Rotator Cuff
Foot and ankle sprains
Severed spinal cord
Plantar fasci tear
Who Is the Best Florida Slip and Fall Lawyer?
This is a question that we see come up ALL THE TIME on attorney websites. Before you consider hiring an attorney for your slip and fall case, ask them what their experience is with slip and fall claims. Ask them if they ever represented the BUSINESSES in defending slip and fall claims. We are consistently shocked by how many personal injury attorneys do not know how to handle slip and fall claims.
We enjoy slip and fall claims because we both used to defend them when we were insurance defense attorneys. Back when we worked for the insurance companies, we aggressively fought claims against businesses.
This taught us the tricks that the insurance companies use to win these cases.
We both saw a lot of personal injury attorneys who did not know how to work a slip and fall claim. This resulted in a less-than-ideal outcome for their client.
Now that we represent people who have fallen, we actually get phone calls from other personal injury attorneys who run their slip-and-fall cases by us to see what our thoughts are. Through my experience, we look at several key elements that we believe determine whether a slip-and-claim can be successful or not.
As always, there are no fees or costs for a consultation and I can quickly evaluate your claim. After you call, we can take action to preserve any and all evidence that might be needed further down the line.
Even if your fall was a few weeks ago or a few months ago, it still does not hurt to have your case evaluated. We have brought successful claims where the slip and fall accident occurred well before we were retained. Please feel free to give us a call to discuss your potential slip and fall case.
Can I Handle A Slip And Fall Claim By Myself?
We will be dead honest with you – the answer is no, you should not. These cases are too complex and the law is very business friendly.
A slip and fall case is different than an auto case. There may be some car accident claims that you can handle on your own. Even if you can handle a car accident on your own, I would still advise against that. There are many pitfalls that you can fall into regarding liens that you have to pay back from any personal injury settlement.
Slip and fall claims need to be handled by an experienced and accomplished slip and fall attorney. Your attorney needs to understand Florida’s transitory foreign substance statute. If you speak with an attorney and they cannot explain to you Florida’s “transitory foreign substance statute” off the top of their head, RUN FOR THE HILLS.
How Much Is My Slip And Fall Claim Worth?
Going back to what is discussed above, that depends on a number of factors, including:
The extent of your injuries
The amount of medical bills incurred
The amount that you have to pay out of pocket
Whether there is health insurance or not
The amount of future medical care needed
The objective findings (such as a fracture showing up on an x-ray)
Your previous injuries and whether they have been aggravated
Your lost wages
Your pain and suffering
What Damages Can I Claim After a Slip And Fall?
In the legal world we refer to your injuries, medical bills, and lost wages as “damages.” This simply means the amount of money that you lost because of your slip and fall.
You can claim the following damages after a slip and fall accident in Florida:
Cost of emergency room treatment
Cost of the ambulance ride to the emergency room
Cost of doctor’s visits after the slip and fall
Cost of physical therapy after the slip and fall
Cost of all past medical treatment because of the slip and fall
Cost of any future medical treatment after the slip and fall
Cost of any past lost wages
Cost of any future lost wages
Pain and suffering
Can You Explain What Damages Are In Layman’s Terms?
You can make a claim against the business owner to be reimbursed for the cost of the medical bills that you had to pay because of your fall. You can also make a claim for the future medical bills that you may reasonable incur as a result of the fall.
In addition to your medical expenses and lost wages, the Florida Standard Jury Instructions also allows you to claim money damages for your pain and suffering. This amount is much more complex to determine, but is usually based on the injuries that you sustained in your accident.
That means that the worse that you are injured, the more money you can claim. Injuries are determined almost exclusively by the amount of medical treatment that you seek and the objective findings from the medical providers. This is one of the reasons why it is very important for your case to go to the doctor as soon as possible after the slip and fall.
How Long Does a Slip and Fall Claim Take?
This depends on how the attorney you work with handles the claim and it also depends how long you seek medical care for. Most of the times after an injury you will need to do some form of physical therapy or chiropractic therapy. This could go on for 2-3 months.
Other medical treatments, including injections and surgery take time to see the doctor, get the procedure scheduled, and then make a recovery after the procedure.
Regarding the liability side of things, Florida allows a business owner up to 30 days to respond to a request for insurance information. This doesn’t mean that the business owner will necessarily respond within 30 days, it just means that that is what they are supposed to do.
Once the insurance company gets the claim set up they will continue their investigation as well.
All of this is to say that the typical life of a slip and fall claim tends to be longer than an automobile claim. My best guess is that a slip and fall claim take about 1-2 years, possibly longer. This, of course, is if you do not have to file a lawsuit.
Is It Worth It to File a Slip And Fall Claim?
There are no fees or costs for a consultation with Fairway Law Group regarding your slip and fall claim. After speaking with me for a few minutes, I may be able to determine quickly whether it is worth bringing a claim for your slip and fall accident in Florida. There are no obligations or fees for our initial consultation, and we may be able to quickly tell you my opinion on your slip and fall case.
Will I Have to Go to Court for a Slip and Fall Claim?
Simply put, there are two phases of a personal injury claim, the “presuit” phase and then the “lawsuit” or “litigation” phase.
Cases virtually always start out in the “presuit” phase unless there is something odd going on (such as a statute of limitation approaching). This means that you obtain medical treatment so that we can determine the extent of your injury. While you are being treated, I am setting up the claim with the business and insurance company.
As you treat, I investigate the claim and determine how to best approach the liability argument. This is why Florida slip-and-fall claims are complex. You MUST PROVE LIABILITY in addition to proving damages. This is different than automobile claims, where a lot of times you only need to focus on the injury portion.
This is where everything comes full circle. Imagine you went to Sams Club or Target, slip and fall, and suffer the worst injury of your life. If there is no liability on behalf of Sams Club or Target, there is no claim to make against them. This is why you need to hire an attorney who understands and has experience with the liability portion of these claims.
It is ALWAYS the goal to settle a claim WITHOUT having to file a lawsuit. Why? For a number of reasons. First reason – time. Filing a lawsuit takes time. When we are working on claims presuit, generally speaking we work in time frames of days and months. “The insurance company has 20 days to respond to this,” “I should get a check in 7 days,” “I should hear back next week.”
As soon as you file a lawsuit, the time shifts from days and weeks to months and years. This is especially true with the current Covid-19 / Coronavirus situation. The courts are effectively shutting down and not scheduling trials for over a year out AND POTENTIALLY TWO YEARS OUT.
But that means that your case would be scheduled for trial over a year FROM WHEN IT IS READY TO BE SCHEDULED FOR TRIAL. That could be 3-9 months after the lawsuit is filed. Believe it or not, this is a best-case scenario and an extremely high-level overview of the current court system. You can quickly see that based on time alone it is smart to attempt to settle a case in the presuit phase.
With that being said, you cannot be afraid to file a lawsuit and go to court in a slip and fall case. The business may flat out deny your claim or make a minimal offer to try to have you “go away.” If you have a case where there is strong liability and strong damages, at that point you need to file a lawsuit.