Grocery Store Falls in Ohio: Why Surveillance Video Must Be Preserved Immediately

Published July 21, 2022 · Injury Law Basics

You are pushing a cart down the aisle, your foot hits something slick, and the next thing you know you are on the floor with a broken wrist or a hip that will not hold your weight. A manager comes over, fills out a form, and maybe offers to call an ambulance. Somewhere above you, a camera recorded the whole thing, and probably the spill that caused it.

Whether that video still exists a few weeks from now may decide your case. This post explains why, and what you can do in the first days after a store fall to keep the evidence from disappearing.

What Ohio law requires you to prove

A store is not automatically responsible because you fell on its floor. The Supreme Court of Ohio has said a shopkeeper owes customers a duty of ordinary care to keep the premises reasonably safe so they are not unnecessarily and unreasonably exposed to danger, but it is not an insurer of their safety. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203 (1985).

In Johnson v. Wagner Provision Co., 141 Ohio St. 584 (1943), the Court described the three ways a customer can prove a store hazard case. You must show one of these:

1. The store created the hazard. An employee spilled the product, over-waxed the floor, left a pallet in the aisle, or set up a display that leaked.
2. The store actually knew about it. An employee saw the spill, or was told about it, and failed to clean it up or warn customers promptly.
3. The hazard was there long enough that the store should have known. Lawyers call this constructive notice. If the spill sat on the floor long enough that a reasonably careful store would have found it, the failure to find it is negligence.

Johnson itself shows how much turns on timing. A customer slipped on mayonnaise from a jar another shopper had dropped, and the Court ruled for the store largely because only a very brief period had passed between the jar breaking and the fall. Time is the whole case in many of these claims, and timing is exactly what video proves.

We cover these elements in more detail in our earlier post on proving the store knew about the hazard and on our premises liability page.

Why the video matters more than anything else

Without video, a store fall case often comes down to your word against a store employee's recollection. With video, the questions answer themselves:

• How did the hazard get there? Footage can show an employee restocking and a bottle breaking, or a cooler dripping all afternoon.
• How long was it there? If the spill appears at 2:10 and you fall at 2:55, the store had forty-five minutes to find it.
• Who walked past it? Video can show employees walking by the spill without stopping, which goes straight to actual or constructive notice.
• Could you have seen it? Stores often argue that the hazard was obvious. Video shows the lighting, the angle, and whether a clear liquid on a glossy floor was visible at all.
• How did you fall? It also documents the mechanics of the injury, which helps your doctors and helps answer an adjuster who doubts the fall happened as you describe.

The problem: video systems record over themselves

Most commercial camera systems keep footage for a limited period and then automatically record over it. How long varies from store to store and system to system, and you will not know the answer until it is too late. Stores also commonly save only a short clip around the moment of the fall, which may leave out the earlier footage showing when the spill first appeared. That earlier footage is often the most important part.

Nothing in Ohio law requires a store to hold onto video simply because a customer fell. What changes the picture is notice.

Notice changes everything: Ohio's destruction-of-evidence claim

In Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 1993-Ohio-229, the Supreme Court of Ohio recognized a separate claim for willful destruction of evidence. The elements are:

• pending or probable litigation involving the plaintiff;
• the defendant knew litigation existed or was probable;
• the defendant willfully destroyed evidence designed to disrupt the plaintiff's case;
• the plaintiff's case was actually disrupted; and
• damages resulted.

The Court held this claim may be brought against the other party to the lawsuit or against a third party, and at the same time as the injury claim. I discussed the doctrine in our 2018 post on destroyed evidence.

Look at the second element. A store that has received a written demand to preserve the video knows litigation is probable. If it lets the footage be erased after that, it is no longer an innocent overwrite. Beyond a separate claim, courts can also allow a jury to hear that evidence was lost and to consider why. None of those remedies is as good as the video itself, which is why the letter needs to go out fast.

What to do in the first days after a store fall

Our guide chapter on the first 72 hours after an injury covers the basics. For a store fall specifically:

1. Report the fall before you leave. Ask that an incident report be completed. Ask for a copy; if the store refuses, write down the name of the manager who took it.
2. Photograph the hazard. Take pictures of the spill, the floor, any warning cones or the lack of them, and nearby shelves or coolers. Get your shoes in the photos.
3. Look up. Note where the cameras are. A quick photo of the ceiling dome near the aisle can be useful later.
4. Get witness names. Other shoppers and employees who saw the fall or the spill are valuable. One who says "I told someone about that twenty minutes ago" can win the case.
5. Put your own request in writing. A short note or email to the store manager and corporate customer service asking them to keep all video of the area from that day is better than nothing.
6. Get medical care the same day, and keep the receipts and records; our chapter on preserving documents and records explains how to organize them.
7. Call a lawyer within days, not weeks. A formal preservation letter to the store and its insurer should identify the date, time, location and every category of evidence: all camera angles for the full day, cleaning and inspection logs, the incident report, and employee schedules.

Do not give a recorded statement to the store's insurance adjuster before you have spoken with a lawyer. Adjusters often call within a day or two, and the questions are designed to establish that you were distracted or that the spill was obvious.

What this means for you

A store fall can cause serious injuries, especially for older shoppers: hip fractures, wrist fractures that need surgery, and head injuries. These are real cases worth real money, but only if the evidence survives. The store's video is usually the single most important piece of proof, and it is also the piece most likely to vanish. Our chapter on gathering evidence while it still exists explains why the side that moves first on evidence usually wins.