If you can show that the store had notice of the hazard, it can prevent your case from getting dismissed. Getting past the dismissal stage of a lawsuit typically results in the business or its insurance company making an offer to settle.
If you want to try to settle your case before a lawsuit, you should know what the odds are that it would get dismissed if you sued.
Proving notice may also increase your chances at getting a good settlement, or winning at trial.
This articles focuses on how you can use what a store employee tells you – after your fall – to help your case. It also applies if you hear an employee say something.The article also applies if a store employee speaks with your spouse after the accident.
When I used the word “store” employee above, I’m also referring to an employee of a supermarket, cruise ship, hotel or any other business.
(Any cases in this article aren’t mine unless I specifically say that they are.)
Store Pays Shopper $10,000 for Foot Injury; Employee Admitted That Store Knew of Water on Before the Fall
Mrs. Smith (not real name) was shopping at a pharmacy store chain in Orlando, Florida. The shopper claimed that she slipped and fell on water on the floor.
Mrs. Smith said that after the fall, a store employee said that another customer dropped an item. The employee said that they “Cleaned it up, but must have missed something.”
Mrs. Smith fractured her navicular bone in her foot. She only had 3 or so doctor visits. Her foot healed fast.
The store paid $10,000 to settle the personal injury case. I represented the shopper.
Auto Parts Store Employee Tells Shopper’s Husband That He Spilled Substance on Floor; Court Won’t Dismiss Case
In Jones v. Discount Auto Parts, LLC Dist. Court, MD Florida 2017, Lola Jones visited an Advance Auto Parts store located in Orlando, Florida.
After purchasing some glue and a bottle of Dr. Pepper, she walked toward the exit. Her feet slipped out from underneath her, and she fell to the ground.
She did not know why she fell, she did not feel anything wet or sticky on the floor, and she did not see anything on her shoes or clothing.
Jones later reported that she had slipped on a substance known as “Tire Wet” or “Tire Shine” based on information told to her by her husband, William Hamilton (“Hamilton”). Hamilton had spoken with a store employee, Alex, on the phone the day of the accident. (I assume that they spoke after the accident.)
Alex told Hamilton that:
- He had spilt Tire Wet on the floor;
- “They tried to buff it out”;
- “They watched a few people slip, but not fall”; and
- Jones had fallen in the location that the Tire Wet had been spilled.
I’ll call those statements “Employee Statements”.
Jones Sued Discount Auto Parts
Jones sued for negligence in Florida state court on December 7, 2015. Discount Auto Parts removed the case to federal court.
Jones claimed that Discount Auto Parts:
- Carelessly and negligently maintained the premises in an unsafe and dangerous condition;
- Failed to maintain the premises in a reasonably safe and proper condition;
- Negligently failed to warn her of a dangerous condition on the premises of which it had greater knowledge; and
- Caused her to slip and fall, resulting in substantial and permanent physical injury to her back, neck, and right ankle.
Discount Auto Parts Tried To Get Case Dismissed; Says She Didn’t Know What Caused Her Fall
Discount Auto Parts pointed out that:
(1) Jones did not know why she had fallen;
(2) she did not see or feel any foreign substance on the floor; and
(3) there was nothing on her shoes or clothing after the fall.
Discount Auto Parts said that Jones failed to present a prima facie case of negligence. The Court disagreed.
Court Won’t Dismiss Case Because Employee’s Statements Are Admissible
The Court disagreed that Jones had failed to present a prima facie case of negligence. The court said this because the Employee Statements are admissible. (The jury gets to the hear the Employee Statements.)
Jones wanted use those Employee Statements to prove that Discount Auto Parts’ employees were aware that the floor was slippery because they had spilled Tire Wet earlier that day and watched multiple customers slip in that area.
In order for the Employee Statements to be admissible, Jones needed to show that the statements were within Alex’s Employment
Discount Auto Parts admitted that Alex was employed for it as a salesperson. Jones testified that she fell between the sales counter and the store exit.
Thus, Discount Auto Parts’s identification of Alex as a salesperson is enough to show that the Employee Statements fell within the scope of his employment.
It is clear that a salesperson’s job performance would include the observation of occurrences that take place on the sales floor. The court said these Employee Statements are admissible.
Basically, the court said that the Employee Statements may show that Discount Auto was aware of the dangerous condition before Jones’ fall.
My guess is that Discount Auto Parts offered more money after the judge said that Jones’ case can get to trial.
Jones’ Saving Grace Was That Her Husband Said an Employee Made These Statements
If Jones’ husband would’ve never claimed to have heard Alex make those Employee Statements, the case would’ve likely been dismissed.
Jones’ would have been unable to show that Discount Auto knew, or may have known, about the dangerous condition of the floor.
Hospital Visitor Slips and Falls, Then Hears Hospital Employee Say “Too Much Wax On Floor”; Court Keeps Case Alive
In Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228 (Fla. 3d DCA 2001), Miriam Troya sued Miami Beach Health Care Group, Inc.
After visiting a friend at the Miami Heart Institute, Ms. Troya slipped, fell and was injured as she was leaving the patient’s room.
According to the Troya, as soon as she fell, an otherwise unidentified hospital employee exclaimed that there had been “too much wax” on the floor.
This statement was alone enough to create an issue as to the hospital’s liability for the fall. Thus, the appeals court refused to dismiss the case.
The hospital likely increased its offer after the appeals court refused to dismiss the case.
Winn Dixie Shopper Says Cashier Said “I Called That Boy Minutes Ago to Clean This Up”; Jury Gets to Hear This
Her theory of the case was that she slipped on vomit and that an employee of the store knew that there was vomit on the floor for at least a few minutes before the fall.
After she fell, she heard an unidentified store employee say “[she] called that boy a few minutes ago to come here and clean this up”.
The trial court refused to let the jury hear this statement. Winn Dixie initially won the trial.
However, the appeals court said that the cashier’s statement is admissible against the Winn Dixie to establish actual or constructive notice of dangerous condition. The appeals court ordered a new trial.
Winn Dixie likely increased its offer after a new trial was ordered.
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