Don't get Sued! A Guide to Help Reduce Your Business's Exposure to Lawsuits

This blog contains the content of Chapter 1 of my book, Don’t Get Sued! A Guide to Help Reduce Your Business’s Exposure to Lawsuits. Chapter 1 deals with Premises Liability and reads as follows:

A business owner has a duty to it’s invitees (again, customers, employees, delivery personnel, etc.) to warn of dangerous conditions that are known to the business plus a duty to make reasonable inspections to discover dangerous conditions and then either make the dangerous conditions safe, or at least warn of the hazard.

In order to better illustrate what I mean, it may be helpful to look at cases that I have handled in which a store was negligent for a dangerous or hazardous condition. A week doesn’t go by when I don’t get called by someone who fell at a supermarket. Usually, the potential client was caused to fall by something slippery, like juice, or melted ice, water leaking from a refrigerator or freezer or water from where a mop was used. The most important things for me to are: (i) whether the store knew or should have known about the hazard, (ii) whether the potential client was injured as a result of the fall and (iii) whether there were any witnesses.

The first (whether the store knew or should have known about the hazard) is the most difficult for my client to know and thus for me to prove. This is where witnesses and surveillance video come in. I ask my clients if they had any idea how long the hazard had been present. If they say they have no idea, unless the injuries are really significant, I usually don’t take the case because I don’t want to waste my time and money and the client’s, on a case that I don’t know if I can prove at least until I file suit and get into the discovery phase of litigation, which may give me access to video and statements from employees. But here’s the thing, you would probably be surprised to know just how many clients tell me that just after they fell, another shopper, or even an employee, told them that the spill had been there for hours and no one had cleaned it up, or that the freezer had been broken for a week and it’s a miracle no one fell sooner because of the puddle of water. As the owner or manager, you must advise your employees not to talk to someone that is injured, other than asking if the injured party needs medical attention and to inform the injured party that store would like to complete a report (see below) about the incident.

There are other ways, of course, to estimate how long it has been since a hazard had been created. I successfully handled a case for a woman who was caused to fall from water which leaked from a bag of melted ice. The fact that the ice melted created enough of an inference that the hazard had been there long enough for the store to recognize it and clean it up, or warn of the risk.

The key for the store to remember is to inspect the premises at reasonable regular intervals. How often that is may be impossible to answer. But the more often the better. One or more employees should be charged with the duty of inspecting aisles in the store and documenting that everything is clear and safe. Include the employees initials and the time of the inspection on any forms that you may create for this purpose.

Regarding the second component which I mentioned above (i.e., whether the client was injured), naturally, there is little the store owner/manager can do to control this point. However, I will pass on a trick that insurance companies use. As soon as the fall occurs, or any other situation in the store in which an invitee appears to have a potential claim, fill out a report. Among other details, including the identity of the injured party and witnesses, ask the invitee whether they’re injured. Often, soft tissue pain doesn’t start for hours, or even until the next day. So, if the client says they are not injured, or more likely, that they don’t think so, put down their direct quote on the report and have the client sign and date the report on the bottom. Although this document may be inadmissible at trial, it is nevertheless likely to be helpful.

Beyond injury information, be sure to include on the report the potential claimant’s version of how the incident occurred. If there was a sign warning of the hazard, ask if they saw it and take photos of the sign which should be attached to the report. Ask also if they saw the hazard itself, before the incident. Do not include the store’s version of how the incident occurred on the report and do not discuss the incident with anyone other than your store’s own insurance company representative.

Independent witnesses are great, but not always available. Install a surveillance camera. In most instances, the video will help support the store’s version and it will also help dissuade crime.

When an object in the store (that belongs to your business) caused the injury, take it out of circulation. If the item was for sale, put it in the storage area and make sure employees are instructed not to tamper with it. The item is evidence and may need to be inspected by an expert in the future. Your failure to remove the item and preserve it, is known as spoliation of evidence, which may invite a spoliation instruction to a future jury. Such an instruction may free the plaintiff from otherwise bearing the burden of proving that the item in question was defective or a hazard.

Finally, do not forget that the exterior of your store may be your responsibility. You must be sure to read your lease and understand what areas your store is responsible for. For example, if your business is responsible for the parking lot, you must make sure the lot is kept safe, well lit and clear of hazards, just like the inside of the store. The same goes for the sidewalk. Use a critical eye when inspecting the outside of the business. Do not neglect this area. Look for things that are out of the ordinary, such as “parking stops.” A parking stop is simply the low to the ground concrete barrier that is placed at the end of the parking space to let the driver know that he is nearing the end of the parking spot. I do not recommend using the stops. If they move to a location other than where they were intended and someone falls, your store may be liable. Also, city, county or state codes may require keeping them painted a certain color. These codes should also be reviewed to make sure everything on the outside of the store is being done appropriately. Par particular attention to laws about how long before ice or snow need to be cleared and the painting of curbs. Also, constantly inspect the sidewalks and parking lanes for hazards and keep a report, as suggested for the inside of the store. All reports should be filed and saved.