When you go shopping, you are not expecting an accident to happen. But the reality is that thousands of slip and fall claims are filed annually by customers in retail stores and restaurants. Many of these cases result in lowball settlements or denials because the injured victim delays in taking important steps to secure critical evidence. By the time the claims adjuster denies their claim, the evidence they could have used to win their case may be gone. For this reason, it is wise to consult a qualified slip and fall lawyer about your case immediately.
Who Bears the Burden of Proof for Business Liability for Falls?
When a fall happens on business property, the law places the burden on the injured victim or “plaintiff” to prove that the employees of the business were either aware of a dangerous condition and failed to warn, or that they failed to act reasonably to discover the dangerous condition. Otherwise, the store bears no liability for the fall and resulting injuries and losses.
The challenge for the victim is that they often have no idea how the dangerous condition got there in the first place in order to cause the fall. In many instances, the only evidence of how the condition wound up in the walkway and how long it was there is found in video evidence that is in the sole possession of the store security.
Must Stores and Businesses Preserve Surveillance Video of a Fall?
Under common premises liability law, a property is under no general duty to preserve evidence of a slip and fall unless the injured person places them on notice of a potential claim and specifies what evidence is relevant to the claim that the person wants preserved.
The Business Video Recycling Policy Stall Tactic
Stores commonly have a “recycle” policy with regard to their video tapes. Tapes that are not preserved for other reasons will be recycled or reused. It could be months or it could be as little as a few days. This policy is a liability defense trick that many injured parties do not understand. When a fall occurs, often the risk management team will carve out the part of the video that shows the exact moments of the fall and afterward. They will tell the injured party that they saved the video of “the fall” and to send bills for evaluation. This lulls the victim into thinking the company is working with them. Then one day, they get a denial, and it is too late.
The problem with slip and fall accidents is that the victim must prove not just that they fell, but also that they either knew of the dangerous condition or that it was there so long that a reasonable inspection would have uncovered it. To determine how long it was there, you need video from before the fall, not the time of the fall. If the victim waits until the recycle period has kicked in before they request video from a certain time period prior to the fall, that part of the video will be “recycled” and forever destroyed. In order to preserve critical evidence, the injured party needs to preserve the surveillance video for at least the 24-hour period preceding the fall.
Can I Request Surveillance Video Footage of a Fall at a Store, a Restaurant, or Other Business Property?
While it is possible to get a copy of a surveillance video from a store, you will likely need to hire a slip and fall accident lawyer and file a lawsuit in order to make the store produce it. But you will never get the video footage you actually need if you do not take steps immediately after the accident to preserve the relevant parts of the video footage. The store has no legal obligation to preserve the video unless you request exactly what you want preserved.
How Do I Make a Store Preserve Video of a Fall?
In order to preserve video evidence of a fall in a store, you should take the following steps immediately after an accident:
- Report the claim to the store.
- Prepare and send a preservation of evidence letter with return receipt or other proof of the date, of service, and receipt. The letter must specify the following:
- The nature of the claim or injury (i.e., a slip and fall).
- The date, time, and place of the fall in question.
- The exact period of time of the video you want preserved.
- Your contact information or the attorney’s contact information, if you have one.
What Kind of Details Should I Include in a Preservation of Evidence Letter?
The key to triggering a duty to preserve the video evidence is to be very specific about what you want preserved, but not to write something that could be used against you. We recommend that the letter request that they preserve the full 24-hour period preceding the fall, in addition to the 1 hour after the fall. This ensures that you can tell if they inspected the area, even if you cannot see where the condition originated from. Do NOT let them get away with just preserving the moment of the fall and beyond. To prove your case, you need to know how the dangerous condition got there.
What Should I Not Say in a Preservation of Evidence Letter?
When you put the business on notice that you fell and were injured in their store, it is important that you DO NOT say anything that could be used against you. You were in their store, and you slipped and fell. That is the only description needed of how it happened. No discussion about where you were looking. No mention of what you did or did not see. You would be wise not to talk about the why or how without consulting a qualified premises liability lawyer and letting him or her review your description, because saying the wrong thing can hurt your case.
What Are the Next Steps After I Send a Preservation of Evidence Letter?
After you send a preservation of evidence letter and have proof it was received, the company is still under no obligation to turn it over to you. You can ask, but they may decline your request. The only way to force them to turn it over is to hire a personal injury lawyer, file a lawsuit, and send requests for production and/or depositions upon written questions to obtain the video.
What Type of Lawsuit Must I File to Get A Store’s Surveillance Video After a Fall in Texas?
There are actually two types of lawsuits that can be used for this:
- A personal injury lawsuit – This is a negligence lawsuit alleging the business is responsible for the fall and seeking to prove damages at trial.
- A Rule 202 Petition – This is a petition filed in order to take oral or written depositions to preserve testimony and/or evidence, such as a video. It is a tool used in Texas and some other jurisdictions to obtain evidence to evaluate a potential case before committing to proving it.
Conclusion
As you can see from the discussion above, handling a slip-and-fall case involves many complexities. There is no obligation to preserve evidence on the part of the business owner unless you put them on written notice of a claim and tell them exactly what to preserve through a preservation of evidence letter. Because of this, you would be well-advised to consult a lawyer early on so that the right letter can be sent before the video is gone.
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