Injured at a local business? Who takes responsibility?

Most people believe that if they are injured in a place of business, the business where the accident occurred should be automatically responsible for injuries caused by the hazardous condition on their property. While businesses generally have a responsibility to the public to keep things in good working order, the mere existence of a hazardous condition – even one that results in an injury to a patron – will not in and of itself establish liability on the part of the business.

A plaintiff must prove a variety of factors before a court will hold a business liable for injuries sustained. Specifically, the plaintiff has the burden of proving: (1) that the business had actual or constructive knowledge of a condition on the premises; (2) that the condition posed an unreasonable risk of harm; (3) that the business did not exercise reasonable care to reduce or to eliminate the risk; and (4) that the store’s failure to use such care proximately caused the plaintiff’s injuries. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006).

Establishing that a business had constructive knowledge of the hazardous condition is arguably one of the hardest elements of a premises liability case. A business cannot breach a duty it does not owe, and it can never owe a duty to correct a hazardous condition of which it is not aware. As such, the dangerous condition that caused the injury must have existed for some length of time before a business may be charged with notice of that condition.

In Brookshire Brothers v. Aldridge, the Texas Supreme Court held that in order for Brookshire’s to be liable for a slip-and-fall incident that occurred in their store, the evidence must establish that it is more likely than not that the hazardous condition existed for a long enough period of time to give the business a reasonable opportunity to discover the hazard and fix it. Due to the nature of such cases, generally all the evidence of constructive knowledge will be entirely circumstantial.

Document the accident scene using photographs or video. While premises liability cases may be won without such documentation, the chances of success increase substantially when the conditions of the premises at the time of the injury are documented appropriately. In cases where there is no photographic evidence, attorneys examining the potential success of a slip-and- fall case may need to resort to more creative means of establishing the existence of constructive knowledge, and the success of such arguments is questionable at best. Take, for instance, Wal-Mart Stores, Inc. v. Gonzalez, a case in which the plaintiff argued that the macaroni salad the plaintiff had slipped on had been on the floor long enough to establish the constructive knowledge element because it was contaminated with a lot of dirt and had other cart and footprints in it. The court disagreed and stated that the dirty state of the macaroni salad did not make it more likely than not it had been on the floor long enough to charge the store with constructive notice of it.

A personal injury premises liability case is much more likely to succeed when there is evidence of a prolonged or repeated hazard over a period of time rather than evidence that may or may not indicate the hazard existed for mere minutes. For instance, a stained floor caused by a continually leaky fridge or a rusty spot on a metal surface are much better for establishing constructive knowledge of an ongoing problem. While evidence that a hazard has existed for a certain period of minutes may in some cases be substantial enough to establish constructive knowledge (such as a puddle that three employees walked past in a 10 minutes time span), cases employing such evidence are generally less likely to succeed.

If you have been injured and believe you may have a case again the business where the injury occurred, please call me to discuss your case. Call me at 972-ASK-CHAD.

As featured in "Attorney at Law Magazine" Greater Dallas edition

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