Attorney Myers: I was walking into a big box store a few months ago and slipped just outside of the store. I went down and hit the cement. I went to the hospital where I got treatment for facial cuts and bruising on the knee. Later I was very sore and the doctor told me to do some physical therapy which I did. Do I have a case?
The law is very clear that the mere occurrence of an accident does not entitle the injured person to a recovery. You need to prove that the store was negligent. This can involve a number of different theories. The bottom line is that you have to show that the store did something wrong. Were they negligent in maintaining the area where you fell? Was the design of the area sub standard? Was there a "defect", such as a broken sidewalk, a broken drain pipe that caused an unnatural buildup of ice or something similar?
Where the injuries warrant it, these questions are answered by hiring an expert who knows building codes, construction, property maintenance and other areas. If the insurance company is not made to understand that their customer has been negligent, then the case goes to court.
However, one problem in all slip and fall cases is that there is always a potential for "contributory negligence". In other words, the injured person claims that the store should have noticed whatever it was that caused you to fall. They will say, OK fine. But, you know what, if we should have noticed it, why didn't you notice it and go around it?
This is an oversimplification, but I have never seen a slip and fall case without some level of defense saying that the injured person was not at least partially responsible for the accident and/or that they could have avoided it.
Many states and municipalities have "notice" provisions. This is not a statute of limitations, but rather a requirement that you must give notice of your accident, in the proper form, within a certain period of time after the injury. It is not enough that "they knew it happened," even if the manager came over to you. The notice in the proper form, usually a certified letter, may be required in 30 or 60 days or some other time period. Or, it may not be a hard and fast rule, such that they would have to prove that they were prejudiced by your failure to give the notice.
Do yourself a favor and find an experienced personal injury attorney in your area and go see them.
Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to firstname.lastname@example.org.