How to Prove and Document Your Accident Injury Case in Florida
In This Article:
• The Landowner’s or Businesses’ Duty To Maintain Its Premises
• The Negligence Standard Explained
• Types of Hazards That Cause Injury
• How Do You Prove Negligence (And Therefore That You Have a Viable Case)
• Negligence Must Be The “Legal Cause” Of The Injury
• Florida Is A Comparative Negligence State
• What Should You Do If You Fall At A Premises
• How To Take Pictures Of Your Accident Scene To Support Your Case
• Treat Your Injuries And Document Your Economic Damages
• What If I Don’t Have Insurance Or Money To Get Treatment With A Doctor After My Accident
• How To Protect Your Legal Right To Damage Recovery: This Might Sound Cliché But Seriously Get a Lawyer Right Away
Despite attempts to watch where you’re walking or for owners of property to keep the premise safe, trip or slip and fall injuries occur all the time. Fall injuries occur everywhere. They occur in homes (yours and someone else’s), offices, sidewalks, parking lots, buildings, retail stores, malls, grocery stores, and even at places of work. Whose fault is it? Can you make a claim against the owner of the property just because you got hurt on their property or does the owner have to be negligent in some regard? Can you be compensated in a legal settlement for your injuries even if you could have seen the hazard if you were looking directly at it? These are some of the issues involved when injuries occur on someone else’s property in Broward, Palm Beach, Miami Dade or elsewhere in Florida, also known as premise liability.
LANDOWNER’S OR BUSINESSES’ DUTY TO MAINTAIN ITS PREMISES
Generally, business owners have a duty or responsibility to maintain their premises in a reasonably safe condition for its’ business invitees. If you enter a business as a potential customer you would have some expectation that the premises is in a reasonably safe condition and the duty of the owner would extend to you. Similarly, homeowners have a duty to maintain their property (inside and out) in a reasonably safe condition. However, if you fall or get injured on a business or personal property, it doesn’t automatically mean the owner of the property is responsible.
THE NEGLIGENCE STANDARD EXPLAINED
Injury claims in the state of Florida for trip or slip and falls are dependent on proving that the owner of the property knew, or in the exercise of reasonable care, should have known that a hazard existed on its premises. If a hazard occurs with significant frequency, they should take reasonable steps to keep a look-out for a foreseeable hazardous situation. Generally, a duty to warn, repair, clean up, maintain or fix exists when an owner has notice of hazards on its property that expose invitees to harm (such as a tripping or slipping hazard). Liability of an owner arises when the owner fails to act reasonably to either keep a proper look-out for known hazards or fails to respond to a hazard it knew or should have known about.
TYPES OF HAZARDS THAT CAUSE INJURY
Hazards can take many forms on the property of another. Hazards that could cause injury in buildings could include poorly lit or constructed stairwell steps (uneven) or stairwells without adequate railings; poorly maintained escalators or elevators; mats that slide on tile floor when you step on them, turn up or are too thick and catch your foot; uneven flooring or rises in cement; bunched carpeting; excessive clutter in walking areas; poorly kept parking lots with dips, pot holes or oil slicks; misplaced parking stops or algae covered or slickly painted cement that becomes slippery when wet. Active construction areas that are not roped or taped off from foot traffic within the store may also be hazardous. In many circumstances, the owner inadvertently creates the hazard!
In stores or restaurants or areas where food is sold, hazards usually take the form of fluid or food on the floor (also known as “foreign transitory substances’). Holding a business owner accountable for a transitory foreign substance like water or other liquid or food is more difficult than a fixed hazard. Proving the owner should have known the substance was on the floor is the primary defense to holding the owner responsible for your fall. Proving the substance was on the floor long enough to have been cleaned is difficult. It must be proven that it was unreasonable for the business owner to have failed to clean up, rope off or warn of the hazard based on the length of time it existed.
HOW DO YOU PROVE NEGLIGENCE (AND THEREFORE THAT YOU HAVE A VIABLE INJURY CASE)
Direct proof of how long a substance was on the floor is difficult to come by. Sometimes there is an admission after the fact by someone who comes to clean up the hazard. Sometimes, a video will capture the time and manner when a spill occurs. Usually, the timing of when an object or liquid fell to the ground must be proven by circumstantial evidence or inferences based on what the hazard looks like, how it feels, where it is coming from or the location. Streaming water from a cooler filled with food, brownish or smeared fruit, footprints or tire tracks spread around through liquid or tackiness of drying soda may lead one to believe the hazard existed on the floor for a sufficient period of time for the owner to have known about it. A brown banana peel can infer that it had been on the floor for an extended period of time.
Nasty, wet, dirty, trash all over the bathroom floor might be just enough to hold a restaurant owner responsible for a slip and fall on a wet bathroom floor (the amount of filth build-up suggests no one had entered to clean the area for a long time). A floor that looks like it had been mopped, with no wet floor sign near it and a mop or maintenance cart near-by would be ample proof that the hazard was created by maintenance staff.
NEGLIGENCE MUST BE THE “LEGAL CAUSE” OF THE INJURY
Regardless, a slip or trip and fall must be caused by the negligence of another. There are circumstances where accidents and injuries occur solely as a result of the injured party’s own carelessness or inattentiveness. A fall can occur because you stumble forward after not picking your feet up when you walk or you intentionally walk into an area that is properly roped off. If an accident happens without someone else’s negligent participation, you do not have a claim just because it happened on someone else’s property.
FLORIDA IS A COMPARATIVE NEGLIGENCE STATE
Falls can also be caused by a combination of your negligence and the negligence of an owner of the property. The owner is not the only one who has a responsibility. Each person has their own responsibility to watch where they are walking and to keep a proper look-out for themselves! If negligence is shown to exist on the owner, the owner can then point the finger at the injured party by claiming that the hazard was open and obvious and should have been seen and therefore avoided altogether! Compensation can be obtained based upon the percentage of fault of each party. If the owner is 50% at fault and the injured person is 50% at fault, the injured person would be able to recover 50% of his/her damages. Florida is known as a “Comparative Fault” state, which means you can still recover damages even if you are at fault, but damages will be reduced based on the percentage of fault you had in causing the injuries sustained. Ability to see the hazard can work for or against you when determining whether the injured party is partially to blame. Distraction, obstruction to view and even gait alteration due to age or disability can help limit blame for a condition that might have been seen and avoided under perfect circumstances. You may not know that even if you had a prior injury or medical condition you can still receive a legal settlement according to Florida law.
WHAT SHOULD YOU SHOULD DO IF YOU FALL AT A PREMISES
So, what do you do when you fall and you believe it to be caused by the negligence of the premise owner? Sometimes, you get up quickly out of embarrassment without even knowing you are hurt until later. Sometimes you are hurt and can’t get up at all. Either way, notification should be made immediately if practicable. If there are any witnesses to what happened, get their contact information. Don’t be quick to say you are not hurt as many symptoms develop within 48 hours of a fall that may not have been noticed right away.
HOW TO TAKE PICTURES OF YOUR ACCIDENT SCENE TO SUPPORT YOUR CASE
You must take pictures of the hazard that caused the fall! Most often, not having pictures truly works against you when attempting to prove negligence against the owner! Video is also a great way to preserve the hazard and circumstances that caused your fall. Bad lighting in a stairwell…take a video of it! If an incident report is made, take a picture of it with your phone. Ask the store in the report to preserve the store video! Take pictures of visible signs of injury. Take the names of the people who come to help you after the fact or clean the area. Many stores will not take pictures and not give you copies of incident reports. When it comes time to make a claim, descriptions of hazards blur.
If you step in a hole, stick a shoe in it to shoe the depth of the hole and take a picture of it; if the sidewalk is lifted, take a ruler and measure the lift in the sidewalk (and take pictures of it). Take perspective pictures to show the location of the lifted sidewalk and any shading around the adjacent area that may have obscured your ability to see the height disparity. If you slip on algae or fruit or puddle of water, take pictures of it! If you fall in a parking lot, shopping mall, store, warehouse, office or other type of commercial or residential building, take pictures of any signs that document who manages the property. Take pictures of anything that is likely to disappear once you leave the area. Take pictures of your soiled or damaged clothes, substances on the bottom of your shoes or skid marks where you slip. You will never receive compensation for your injury if you can’t prove and/show the hazard that caused your fall! You must prove negligence before you ever get to talk about damages!
TREAT YOUR INJURIES AND DOCUMENT YOUR ECONOMIC DAMAGES
Damages are based on documentation and proof. Serious injuries such as head injuries, displaced fractures, torn ligaments and ruptured disc occur from falls. Less overt injuries such as soft tissue neck and back injuries occur as well. Regardless, you must get treated by a doctor so that your injuries and progress are documented. Damages for your injuries are based on the acute/initial injuries and symptoms, the nature of your treatment, and the likelihood of continuing compromise to your body once your reach a point where your progress has leveled off and is no longer helping you improve. Medical bills, out of pocket expenses, documented lost income and future medical needs are some of the other types of damages you can claim. Your claim will not proceed to settlement discussion until you have reached a point in your care where the treatment being provided will no longer make the injury better (Maximum Medical Improvement). Many fall injuries are significant and treatment can last anywhere from two months to two years depending on the nature of the injury.
WHAT IF I DON’T HAVE INSURANCE OR MONEY TO GET TREATMENT WITH A DOCTOR AFTER MY ACCIDENT?
It is important to seek treatment close in time to when the fall occurs. A link between the fall and the injuries you are claiming must be established and if too much time goes by, arguments can be made that some other event caused your injuries
Many medical facilities will treat people who are hurt based on a document called a Letter of Protection. A Letter of Protection is a document that gives the medical office a promise of payment once you recover money from a party you believe was negligent and caused your injury and need for treatment. Medical offices will not treat you on an LOP if you are not represented by an attorney at a law firm. The medical office will usually send an LOP to a lawyer’s office and ask about the details of the claim and representation. If the claim appears to be legitimate and there is a viable way to get paid at a later date, the medical provider may provide you with the treatment you need without requiring payment up front.
HOW TO PROTECT YOUR LEGAL RIGHT TO DAMAGE RECOVERY
This might sound cliché but seriously get a lawyer right away. You should not threaten to sue or discuss your claim with a representative of the location where you fell before consulting with a lawyer (after the day of the event when it is reported). Claims representatives are likely working for an insurance carrier who will attempt to limit responsibility. It is best to know your rights and be protected against over-reaching of persons who are generally not looking out for your best interest. If you have no health insurance coverage, getting a lawyer may also help you get treated by a medical provider.
NEED REPRESENTATION OR ADDITIONAL QUESTIONS ANSWERED?
Mr. Cohen has exclusively represented seriously injured individuals, and the families of those whose deaths were caused due to the negligence of others, since 1990. Mr. Cohen has resolved thousands of cases over his 20+ years of practice ranging from the families of victims of wrongful death, to individuals who sustain whiplash injuries in an automobile accident. Email or call Cohen and Juda P.A at (954) 424-1440 and we will speak to you and handle your case personally. Tell us what happened.
Cohen and Juda P.A.
8211 W Broward Blvd, Suite 310
Plantation, FL 33324
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