Can You Sue to Recover Compensation for a Slip and Fall Accident in a New York Store?

Anyone who has ever stepped foot in a store of any kind will likely have encountered a wet floor sign. You can probably picture one now, yellow and rectangular, featuring the image of an anonymous figure slipping on a puddle, surrounded by the words “Caution! Wet floor.” 

The wet floor sign represents slip and fall liability rules in a nutshell. Stores put them up because they are responsible, within reason, for protecting their visitors from hazards on the premises. And when a store fails to reasonably account for your safety, you may be entitled to compensation for any resulting injuries. In this article, we will explore how the law thinks about slip and fall accidents that occur in stores and how you can recover compensation if you’ve been injured in such an accident.

What Is a Slip and Fall Accident?

As the name suggests, a “slip and fall accident” is an accident where someone slips, falls, and either hurts themselves or damages their property. Claims for compensation most commonly arise from injuries rather than property damage. Common injuries include the following:

  • Broken bones
  • Soft tissue injuries
  • Traumatic brain injuries
  • Hip fractures
  • Sprained wrists or ankles
  • Back and spinal cord injuries
  • Cuts and abrasions
  • Shoulder and neck injuries

These accidents are also commonly called “trip and fall” accidents, since they also include situations where someone trips and falls. In this article, we are specifically concerned with slips, trips, and falls that happen on someone else’s property in New York, namely in a store. Under these circumstances, it is possible to recover compensation from the property owner. 

What Are Your Options for Compensation?

If you’ve been involved in a slip and fall accident in a store, you may be eligible for compensation from the store’s owner. Injured shoppers frequently recover economic damages, which includes things like medical expenses and lost wages, and non-economic damages, such as pain and suffering. We will look at when you may be eligible for compensation later in this article, but for the time being, assuming you are eligible, you have three main paths to compensation:

  1. Making an Insurance Claim
  2. Filing a Lawsuit
  3. Reaching a Settlement

Making an Insurance Claim

While New York does not currently require businesses to carry commercial liability insurance, many stores will nevertheless have an insurance policy covering accidents that take place on their premises. Your first option, then, is to file an insurance claim directly with the store’s insurance company. 

When you file an insurance claim, the store’s insurance company will assign a claims adjuster. The adjuster will investigate your claim and decide whether the store is liable and, if so, for how much. One major advantage of filing a claim directly with the insurance company is that the burden of investigating and deciding the case is passed on to the insurance company, which means less work on your end. There is, however, a downside as well:

The insurance claims process has a built-in conflict of interest.

The person responsible for deciding the case, the claims adjuster, works for the insurance company, who will be responsible for paying you if the adjuster decides the store is liable. Naturally, insurance companies don’t want to pay out money if they can avoid it. So, the insurance adjuster has an incentive to rule against you. This doesn’t mean insurance claims are always denied, but it does make it more difficult to get the compensation you deserve.

Filing a Lawsuit

A second option you have is to sue the store owner in court. These lawsuits rely on an area of the law known as “premises liability.” The basic idea is that landlords and commercial property owners have a duty to maintain the safety of their premises. So, when a store has an unsafe condition that causes someone to be injured, the store’s owner can be held responsible for the resulting damages.

A lawsuit will go before a judge or a jury, who will decide whether the store’s owner is liable for your injuries and, if so, for how much. One disadvantage of filing a lawsuit is that they tend to be time consuming and involve a rather complicated process. Still, many people favor the lawsuit option because of the legal process’s impartiality. Unlike with the insurance claims process, the people deciding your case in a lawsuit, the judge or jury, are free of any conflicts of interest.

Reaching a Settlement

Whether you make an insurance claim with the store’s insurance company or sue the store owner in court, there is a strong possibility that your case will be resolved by a “settlement,” an agreement between the parties to a dispute to resolve their differences by striking a bargain. Usually, the insurance company or store owner will agree to pay the injured party a sum of money in exchange for the injured party promising not to take the case to court. Settlements are popular because they are efficient. No one wants to go to court if they can help it, as it is time consuming and costly. By settling, both parties save time and money.

Who Is Liable?

So far, we have discussed liability for slip and fall accidents in a store as resting with the store’s owner. This will be true in many cases, but sometimes, it’s more complicated than that. This is because commercial properties frequently have an owner/landlord and a tenant. In the context of a store, imagine if the “store’s owner” is not the owner of the physical building but is leasing it from the building’s owner. In these cases, it can be tricky to determine who is responsible for maintaining the safety of the premises, the landlord/building owner or the tenant/store owner. 

Your attorney will need to examine the precise facts of your case and do some further investigating before determining who should be sued. Often, the answer is found in the lease agreement between the landlord and tenant and how they have conducted themselves in the past with respect to maintenance. But this is an oversimplification, and you will certainly need to consult an experienced attorney for help.

How Is Fault Determined?

Whether you make an insurance claim, file a lawsuit, or settle in either case, the most important issue will be deciding who was at fault for causing the accident. At the outset, you should understand that you should not expect to handle your case yourself. Pursuing a slip and fall case is complicated for a number of reasons. Chief among them is the fact that the law itself is complicated and fact-specific, meaning whether or not you have a valid claim will depend on the precise circumstances of your case. Only an experienced personal injury attorney can accurately evaluate the strength of your claim. That being said, in this section, we will outline the legal rules at play when determining who is at fault for a slip and fall accident in a New York store. 

Premises Liability

Cases arising from slip and fall accidents in a store are “premises liability” cases. Remember that the law imposes a duty on store owners to maintain the safety of their premises. But this doesn’t mean they are automatically responsible for any injury that occurs on their premises, even if there is a genuinely unsafe condition. The rule is that a store’s owner is liable when their negligence causes an injury to someone who is lawfully on the premises. 

This leads us to the concept of negligence. This is a special legal term that roughly translates to “carelessness.” For our purposes, we only need to know that there are two circumstances under which a store owner is negligent in the slip and fall context:

  1. When they created the hazardous condition, or
  2. When they knew of the hazardous condition within enough time before the accident to correct the condition.

A couple points of clarification. First, what do we mean by “they?” When we say “they,” we mean the store’s owner or one of its employees. Obviously, the store owner is usually not involved in the day-to-day operation of the store. More commonly, it will be the employees who create an unsafe condition or become aware of one.

So, premises liability boils down to this. When an insurance adjuster, judge, or jury is deciding whether the store owner is liable for your injuries, they will ask the following series of questions:

NY slip and fall suing graphic

1. Were you on the premises lawfully?

If the answer is yes, you were on the premises lawfully, then…

2. Was your accident caused by a hazardous condition on the premises?

If it was caused by a hazardous condition on the premises, then… 

3. Was the store’s owner or employees negligent in a way that caused your accident?

To figure this piece out, they will ask whether 

  1. the store created the hazardous condition, or 
  2. the store had “constructive notice” (knew or should have known of its existence within enough time before your accident that they could have reasonably remedied the condition). 

If they answer yes to either of these questions, then the store owner will be held liable.

Comparative Fault

There is one more piece to the puzzle that will factor into the fault inquiry: comparative fault. Fault is rarely absolute. Many times, when an accident occurs, both the victim and the accused played some part in causing the accident. New York accounts for this with its “pure comparative fault rule.” This means that if an insurance adjuster, judge, or jury decides the person accused of being at-fault is responsible, they may also consider whether the victim is partly to blame. And if the victim is partly to blame, whatever damages (compensation) they receive will be reduced by the percentage of fault they carry. Notably, under New York’s rule, the victim can recover compensation even if they were more at fault than the person they sued.

Consider this example. Suppose a woman slips and falls while shopping in her local grocery store and sues the store’s owner. In court, she proves that a store employee mopped the end of the aisle she was in and failed to put down a wet floor sign. When she reached the end of the aisle, not realizing the floor was wet, she slipped and broke her leg. The court concludes the store’s owner is liable for her injuries. After all, the shopper was on store premises lawfully, her injuries were caused by the hazardous condition of the wet floor, and the store was negligent in creating the hazardous condition without warning shoppers. Once the court has determined the store owner is liable, they can turn their attention to whether the injured shopper was at all to blame. 

Imagine now that the grocery store owner produces video surveillance footage showing our shopper was looking at her phone when she slipped and therefore not paying attention to her surroundings. The court might decide that a reasonable person under the circumstances would have paid attention to where they were walking and perhaps would have noticed the floor was wet. On this basis, our shopper could be considered partly to blame for causing the accident; she should have been looking where she was going. The decision-maker would then assign to her a percentage of blame, say 20%. If she were 20% to blame, the amount of her damages would be reduced by 20%.

Proving Fault

When you make an insurance claim, you are not really responsible for proving fault. This is because the claims adjuster does all the heavy lifting.

But when you file a lawsuit, it is your burden to prove that the offending store’s owner is liable for your accident.

Keep in mind that for these types of cases, you have a toolbox containing a few reliable sources of evidence that, if available, can all contribute in some way to proving your case. These sources include:

  • The store’s video surveillance footage
  • Your deposition testimony
  • Store employees’ deposition testimony
  • Fellow shoppers’ deposition testimony
  • Store maintenance records

To clarify, a deposition is a witness’s official statements made outside of court. The attorneys will usually handle gathering deposition testimony. 

To prove fault, you will need to show:

1. You were on the store premises lawfully.

In the vast majority of cases, this element is easily satisfied. Stores invite people onto their premises during business hours to browse their products and hopefully make a purchase. And slip and fall accidents normally occur when people are in a store during normal business hours. Unless you were on store premises unlawfully, such as by breaking in during non-business hours, you should satisfy this element with ease.

2. A hazardous condition on the premises caused your accident.

Obviously, if you are bringing a slip and fall case claiming the store is responsible, it must be true that a hazardous condition on the premises caused your accident. This element is often proved by security footage, since most stores have a video surveillance system. However, sometimes the footage is of bad quality or even non-existent, such as when stores have a policy of automatically deleting footage every few days. In such cases, we rely on other sources of evidence, including your testimony and the testimony of store employees and other shoppers present at the time of the incident.

While this element might appear simple enough, it should not be overlooked. Without sufficient proof of this element, your entire case can be destroyed. Consider the real-life case, Moody v. F.W. Woolworth Co. Ms. Moody sued F.W. Woolworth Co. after she slipped and fell on the floor of their store. Woolworth responded by moving for summary judgment, meaning they asked the court to dismiss Moody’s case before it could go to trial because they felt she had failed to prove a key element: that a dangerous condition in the store caused her accident. The court agreed with Woolworth and dismissed the lawsuit. 

In her deposition, Moody testified that she discovered her pants were wet after she slipped and fell. She recalled seeing a plant display nearby and leaves and flower petals that had fallen from a plant. The court pointed out that Moody only speculated about what caused her accident. Crucially, she failed to identify a dangerous condition in the store that caused her to slip and fall. Without this key element, her case failed, and the court was forced to dismiss her lawsuit.

3. The store’s owner created the hazardous condition OR knew or should have known of its existence within enough time before your accident to remedy the condition.

This element is usually the most difficult to prove. Let’s consider each part individually.

The store’s owner (or employees) created the hazardous condition.

This will apply to your case if the store’s owner or employees did something to cause the unsafe condition. Think back to our example of the grocery store employee mopping the floor and failing to put down a wet floor sign. They created the hazardous condition of a wet floor without a warning for unsuspecting shoppers. Another great example is the plaintiff’s claim in Moore v. A & C Supermas, Inc. Ms. Moore claimed she slipped in a puddle of red wine created and caused by the wine crates having been stacked in the aisle by store employees. That the store’s owner or employees created the hazardous condition can be proved by any of the available sources of evidence mentioned previously. The employees’ deposition testimony and video evidence from the store’s cameras are especially powerful.

The store’s owner (or employees) knew of the hazardous condition.

That a store’s owner or employees had actual notice (knew) of a hazardous condition will most commonly be demonstrated by

  • evidence of someone having previously reported the condition, or 
  • evidence of a store employee having noticed the condition themself. 

This can be proved primarily by deposition testimony of employees and other shoppers. Employees might testify that a shopper notified them of the dangerous condition, or a shopper themselves could confirm they reported it. Another great source of evidence is store records, such as maintenance records. For example, imagine a shopper injures themselves tripping over a damaged piece of carpet. Store maintenance records might indicate that the store had knowledge that the carpet was damaged and intended to repair it. 

Timing is also an important factor here. The store must have had sufficient time to respond to the hazard. If you slipped in a puddle of milk seconds after it was spilled and reported, it might be unreasonable to expect the store’s employees to have responded in time. The timing will usually be established by whatever proof you use to show the store had enough advance notice of the condition.

The store’s owner (or employees) should have known of the hazardous condition.

Proving that the store’s owner or employees had constructive notice (should have known) of the hazardous condition is more subjective and therefore slightly more challenging. In the case of Gordon v. American Museum of Natural History, a New York appeals court defined constructive notice as when a hazard is “visible and apparent” and has “exist[ed] for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” So, there are two things you must prove to show the store’s owner had constructive notice, or should have known of the hazardous condition. 

1. You must show the hazard was visible and apparent. 

This can be proved by testimony, video surveillance, or photo evidence of the scene of the accident. 

2. You need to show the hazard existed for long enough before the accident that the store could have noticed it and fixed it. 

And this makes sense. It wouldn’t be fair to make the store liable for an accident if the hazard occurred just moments before because it wouldn’t be reasonable to expect employees to pick up on and respond to the hazard so quickly. To prove how long the hazard existed, you will probably need to rely on evidence, including testimony from employees and shoppers, video surveillance footage, and store maintenance records.

Case Law Example: Velocci v. Stop & Shop

This third element is quite tricky, but this example should clear things up. In this case, Stop & Shop escaped liability when Mr. Velocci sued them after slipping in front of an ice machine in their supermarket. Velocci claimed that after paying for his groceries, he slipped in a large, clear puddle situated in front of the ice machine. He said he did not see the puddle and that there were no other clues, such as footprints, skid marks, or wet floor signs. Stop & Shop avoided liability by convincing the court that

  1. they didn’t create the puddle,
  2. they didn’t have constructive notice of the puddle, and
  3. they didn’t have actual notice of the puddle.

Though it is Velocci’s responsibility, as the person bringing the lawsuit, to prove to the court all the necessary elements, if the accused party can prove to the court that the required elements don’t exist, the lawsuit can be dismissed before it even gets to trial. That is what happened here.

1. Stop & Shop didn’t create or cause the puddle.

The court first pointed out that Stop & Shop’s employee’s didn’t appear to have created the puddle. Velocci’s own testimony established that he didn’t see employees mopping or removing ice from the machine or doing anything else to create the puddle. Velocci admitted he didn’t know what caused the puddle.

2. Stop & Shop didn’t have constructive notice of the puddle.

The court then tackled constructive notice. Remember that for there to be constructive notice, the hazard must have been visible and apparent, and it must have existed for long enough before the accident that the store could have noticed it and fixed it. The court pointed to two key pieces of evidence proving there was no constructive notice of the puddle. First, as Velocci himself admitted, the puddle was not visible. Second, according to a maintenance log and an employee’s testimony, the area in question had been inspected about an hour and a half before the accident, and the employee that did the inspection hadn’t recorded any hazards. This showed the water was not on the floor for long enough for them to have constructive notice of it. 

3. Stop & Shop didn’t have actual notice of the puddle.

Finally, the court concluded the store had no actual notice of the puddle because there were no complaints, and the maintenance log showed no hazards had been recorded in the area. 

Without these key elements, Stop & Shop couldn’t be held liable, and Velocci’s lawsuit was dismissed.

What if I Wasn’t a Shopper?

Up to this point, we have framed everything in terms of shoppers that slip and fall inside of a store. Of course, shoppers are not the only people that go inside of stores and get injured. For example, you might be a delivery worker who slipped and fell while making a delivery to a store. Or, you might be an employee of the store. And slip and fall accidents don’t always occur inside of a store. Frequently, people slip and fall in the parking lot. 

If you slipped and fell in a store while at that store in a work capacity, or slipped and fell in the parking lot of a store, while much of the underlying law remains the same, the information relevant to your case might differ in significant ways. For example, if you were injured while working, you may be eligible for worker’s compensation benefits. Or, if you slipped and fell in a store’s parking lot, it might be relevant to consider whether the store even owns the parking lot to begin with. If they do, there are still slightly different standards for proving a store’s responsibility for maintaining the safety of a parking lot versus the inside of a store. For these reasons, we recommend also checking out our articles (linked above) addressing these circumstances head-on. 

Will I Need an Attorney?

As you can see, slip and fall accidents are a complicated matter so you should seek the assistance of a qualified personal injury attorney. This is true whether you are pursuing an insurance claim or a lawsuit. Here are just five vital ways an attorney can support your case.

  1. Holding the claims adjuster accountable: If you pursue an insurance claim, you have to be extra vigilant, given the inherent conflict of interest. An attorney can protect your rights by ensuring the claims adjuster investigating your case follows proper procedure and remains faithful to the law.
  2. Evaluating your claim: You will need a skilled attorney with a strong understanding of slip and fall cases to evaluate the facts of your case and determine the most effective strategy to help you secure the amount of compensation you deserve.
  3. Navigating the legal process: If you decide to pursue a lawsuit, you will need an attorney to help you navigate the complex legal procedures that lawsuits entail. In a court of law, every last detail matters from how you prepare your paperwork, to when you file it, to which font you use. Not following procedure can derail an otherwise winnable case.
  4. Convincing the court: Even if your case is bulletproof, you can lose if you do a bad job of persuading the court. Your attorney should have enough courtroom experience to maximize your chances of taking your case across the finish line.
  5. Negotiating a settlement: As we mentioned before, whether you file an insurance claim or pursue a lawsuit, your case is very likely to settle. A settlement requires shrewd negotiation. Just because the insurance company or store owner is willing to pay you to avoid going to trial does not mean they will be fair in how much they decide to pay you. An attorney will keep them honest and maximize your settlement amount.

Slip and Fall Accident Statistics

While there aren’t many reliable statistics concerning slip and fall accidents in stores, available data underscores the point that slip and fall accidents are common and dangerous. The National Safety Council reports that in 2019, falls accounted for 39,443 deaths in the United States. The Centers for Disease Control and Prevention warns that one out of five falls causes a serious injury, with falls being the most common cause of traumatic brain injuries. Admittedly, these statistics can be slightly misleading, since the data reflects “falls” generally, meaning they include situations like people falling from great heights. Nevertheless, since slip and fall accidents usually involve a “fall” of some kind, this data gives us a good idea of the capacity for these accidents to cause serious injury.

Frequently Asked Questions 

What should I do after a slip and fall accident in a store?

The first thing you should be concerned about after a slip and fall accident in a store is the severity of your injuries. If you are seriously injured, seek medical attention immediately. If safe and possible, you should also report your accident to the store’s manager. Many stores will have an accident report form you can fill out and file with the store. Be sure to get a copy if you do fill one out. Finally, contact an attorney.

How long do I have to sue for a slip and fall accident?

The statute of limitations for personal injury lawsuits in New York is three years from the date of the accident.

How soon should I contact an attorney after a slip and fall accident?

You should contact an attorney as soon as possible after your slip and fall accident. This is because the investigation stage can be crucial to your claim, and if you wait too long, key evidence can be spoiled. For example, when you hire an attorney for a slip and fall case involving an accident in a store, your attorney will usually put the store on notice that you are pursuing legal action and that they therefore need to ensure any video surveillance footage is preserved. If you hire your attorney too long after your accident, the footage and other key pieces of evidence may already be destroyed.

How are slip and fall settlements determined?

Whether you are settling after pursuing an insurance claim or after filing a lawsuit, your settlement will be guided primarily by what would likely happen if your case went to court. Settlements usually reflect a prediction by either side about how a court would decide the case if it made it that far. The other party is settling to begin with because they don’t like their chances in court and recognize a settlement will be cheaper and less time consuming. Your attorney will use their understanding of what you would be eligible to recover in court to guide the negotiations. Of course, since it is a negotiation, other factors will come into play. But primarily, it will be based on what a court would be likely to decide if the case went to trial. 

Who Should I Contact?

If you or a loved one have slipped, tripped, and fell in a store, you may very well be entitled to compensation. This area of the law is complicated, and your right to compensation is too important to risk going it alone. At Rosenblum Law, we combine our extensive knowledge of slip and fall cases with superb courtroom skills to ensure our clients receive the compensation they deserve. E-mail or call 888-815-3649 for a free consultation.

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