WHAT INVESTIGATION AND EVIDENCE IS REQUIRED TO PROVE A PREMISES LIABILITY CASE?
In a premises liability case, immediately at the time of the incident, photos should be taken of the condition of the premises. Anyone at the scene should take photographs, preferably with a measuring ruler, a quarter (.5 inch), or some other way to provide reference of displacement, degree of mis-levelment, or some way to document, safekeep, or preserve the dangerous substance. In most states, the standard for admitting the photos into evidence is do they accurately reflect the scene at the event. The client or person who took the photographs can testify and the photos can be admitted through these witnesses at the time of trial.
It is important to determine what is the size of the alleged dangerous condition. The defendant will likely argue that the condition was open and obvious if the condition is too big, or the defendant will argue that the condition is not dangerous if too small. An injured plaintiff who claims to not see the “displacement” of the Grand Canyon will not prevail, nor will the plaintiff succeed if the alleged trip hazard is simply a hairline crack in a sidewalk or just a single droplet of fluid on the floor. Generally accepted standards of care must be compared when evaluating these alleged dangerous conditions.
When investigating a potential premises liability case, it important to develop a thorough understanding of exactly how, when, and where the premises liability incident occurred. There are many questions that a potential claimant will be expected to answer by a premises owner or management company responsible for the maintenance of the property. The following is a series of questions that are very typical in the investigation of a slip and fall, trip and fall, or premises liability claim:
- Where did you fall?
- When did you fall?
- How did you fall?
- How did you land and which body parts were injured?
- On whose property did you fall?
- What is the exact location of the fall?
- Were you able to obtain pictures of the fall?
- What are the names and addresses of any witnesses to your fall?
- What were the lighting conditions where you fell?
- What do you feel the owner of the property or the persons responsible for the management and upkeep of the property did, or failed to do, which resulted in your fall?
- What are your reasons for feeling that the owner or the premises manager or store owner was responsible for your fall?
- What are the names of the owner and/or manager of the premises who had notice of the condition that caused you to fall?
- What was the exact nature of the condition that caused you to fall?
- What kind of shoes were you wearing at the time of the occurrence?
- Were you carrying anything? If so, what?
- Where was your attention focused or concentrated?
- How could this fall have been prevented?
HOW CAN EVIDENCE BE PRESERVED IN A PREMISES LIABILITY CASE?
In any premises liability case, preservation of evidence early on is critical to the case. The duty to preserve evidence is a requirement imposed by law. “Spoliation” is the term used when evidence is destroyed or lost, in light of pending or foreseeable litigation. For example, it is a business owner’s duty to preserve relevant maintenance records, surveillance, or personnel communications in a premises liability case. Relevant evidence missing due to the opposing party’s bad faith can result in discovery or monetary sanctions or the jury’s adverse inference may be instructed by the Court.
Regardless, the plaintiff bears the burden to prove its own case. Evidence is lost, destroyed, misplaced, or may even be tampered with. It is best that the plaintiff documents and preserve as much evidence as possible within their own control. The plaintiff cannot rely on any opposing party to preserve persuasive evidence that weighs on them incurring legal responsibility.