Clients often ask, What are my rights if I have been injured on someone else’s property? Whatever the case, the analysis is often the same. It does not matter if the property was big box retailer, a small merchant, or anything that occurred at a neighbor’s place.
Nonetheless, there is one very important thing to understand.
Simply because the injury took place on someone else’s property does not necessarily mean that you have the right to recover. You may have that right but you may also not have one.
Things to Consider
The question of the right of recovery boils ultimately boils down to a couple of issues. Among them are:
1. The Reason for Your Presence on the Property
What brought you to someone else’s place? That is that first thing that you need to consider and analyze. The thing is…
In such cases, the law identifies the injured party according to 4 possible categories. You as the injured party could either be an adult trespasser, an invitee, a licensee, or a child. These categories serve as a guide to determine whether you can recover based upon the duty of the property owner.
For instance, if the owner called you over to his property, the law considers you as an invitee. You entered the property at the owner’s expressed or implied invitation.
The invitation itself carried with it an implied representation, assurance or understanding that the owner was conscious of his decision. He used reasonable care to prepare the premises and to ensure safety.
A store or restaurant patron is one example of an invitee.
If that were the case, the owner had the duty to exercise reasonable or ordinary care for the person he invited. And, he would also be liable for injuries if he violates his duty.
Getting Clear on the Issue
Notice the special emphasis on being the invitee. We most often get the same question from clients.
You may have been injured in some way in a grocery store, restaurant or big box retailer. As mentioned, people tend to assume that the owner is liable simply because the injury occurred on his property. But, that is just a misconception.
We often find cases where the injury took place in a grocery store setting. But he can offer no explanation as to how the injury occurred, why it occurred, or what the store could have done to prevent it from happening.
In such cases, liability is certainly an uphill battle and the likelihood of recovery is remote. You have to determine the important details in a case or situation.
The Need for Evidence
Generally speaking in South Carolina, the injured party must present either of the following this to recover damages:
- That the injury was caused by a specific act of the storekeeper which created the dangerous condition or,
- That the defendant had actual or constructive knowledge of the dangerous condition and failed to do something about it.
2. The Motive for the Injury
What does it mean for the owner to have created the dangerous condition?
Going back to the grocery store example, the storekeeper could be held liable for creating a dangerous condition if he placed an ice machine that was known to drop ice onto a slippery tile floor.
The storekeeper may also be held liable if merchandise was stacked in such a way that it was unreasonably dangerous and fell onto a customer.
There are countless examples of ways that a storekeeper could create a dangerous condition. It is important to evaluate the case individually to see if the storekeeper created any condition.
3. The Consequence for the Property Owner to Have Actual or Constructive Knowledge
Oftentimes we hear from clients who have walked into a grocery store and slipped on a foreign substance. At that point, the question that becomes absolutely critical is whether or not the storekeeper knew that something was on the floor.
Did he know that the foreign substance existed?
In such cases, the injured party must be able to offer some explanation as to whether or not the storekeeper knew it was there.
How does this happen?
The store may have owned some cameras that were able to film the incident. They could have a video that shows the employee actually spilling the material on the floor.
Or, there could be other records that prove the employee was present around the time of the incident. These records could be in the form of cleaning or maintenance logs.
Both are examples of how one could go about proving that notice existed on the part of the storekeeper.
An Important Warning
The evidence regarding what occurred, how it occurred, and the storekeeper’s role is critical evidence. It is very important that you take note of such details. You can definitely use them to advance your case.
You can find them either at the scene of the injury or shortly thereafter. The storekeeper can help resolve the issue by taking the affirmative duty to document the scene and preserve any evidence that exists.
I cannot tell you how often we see cases where clients have not even reported the injury at the time that it occurred and therefore imposed no duty on the storekeeper to preserve evidence.
Without the report of an injury, evidence such as video surveillance will likely disappear within 48 hours. Mistakes like this are almost always dispositive of potential actions to recover for these injuries.
On a monthly basis, we see slip-and-fall or trip-and-fall cases that involve broken bones, paralysis, surgical intervention. They oftentimes lead to catastrophic monetary damages by way of medical expenses or an inability to work.
These cases are anything but laughable and must be handled with great care. Because these sorts of cases very often involve serious injury, one cannot underestimate the lengths that major retailers will go to in protecting their own interests while compromising the interests and rights of the injured party.
I have seen more cases than I would like to remember where retailers have intentionally destroyed or disposed of video footage, destroyed or disposed of incident reports documenting what occurred as well as the names and identities of witnesses that saw the accident take place. For these reasons it is vitally important that injured parties seek legal assistance in very short order.
Steps for Protection
Even prior to speaking with an attorney the client can and should take the following steps to protect their interests themselves:
1. Secure Documentation
Take any pictures of the area in question to illustrate the. Even if the injury is one that will not allow for documentation to take place immediately, it would be a good idea to send a family member or friend back to the scene to document as soon as reasonably possible thereafter.
2. Report All Injuries to the Owner
Make sure to report all injuries to the property owner. Obtain a copy of any incident report that is filled out and make sure to note the names and identities or physical descriptions of any employees that were close to the accident at the time that it occurred or took part in some form of investigation.
3. Take Note of Witnesses
Take note of the names and identities of any witnesses that saw the event occur or any witnesses that may have been in the area at the time of the injury.
Do not rely upon or expect that the retailer or storekeeper will do this for you. If there are witnesses favorable on your side, the storekeepers consider them unimportant. And the identity of the witnesses may never be documented.
4. Write a Report
If you are unable to file an incident report at the time of your injury, make sure that you do so in writing as soon as reasonably possible.
Oftentimes we see cases where the injury occurred on an empty piece of property. There was nobody around. A 24-hour fitness facility accessed by a key card for instance may be this sort of establishment. Whatever you do, do not delay in your reporting in writing to the property owner that an injury has occurred.
5. Avoid Recording Your Statements
Do not give a recorded statement or your version of what occurred to an insurance adjuster.
Very likely you will receive a call shortly after having filled out an incident report. It will come from an individual trained in taking a recorded statement from you in such a way that harms your liability position.
Do not make this mistake. It is always best to retain a qualified attorney or at the least seek legal advice before giving such a statement.
If you, a family member or friend has been injured on someone else’s property and would like to talk about the available options, Hank Burriss and Wayne Ridgeway look forward to discussing the case. With offices in Columbia, Orangeburg and Lexington, Burriss and Ridgeway services clients across the State of South Carolina. Visit burrisslaw.com or call (803) 4514000 to learn more or schedule a free consultation.