Slip-and-Fall Claims in Ohio: Proving the Store Knew About the Hazard

Published October 3, 2019 · Ohio Appeals Courts

You go down hard on a wet floor. Your head hits a counter, your back and neck hurt, and the floor is plainly slick. Most people assume that is the whole case: the floor was wet, I fell, the business is responsible.

Ohio law asks one more question, and it is the question that decides most slip-and-fall cases: did the business know, or should it have known, that the hazard was there? A decision from the Twelfth District Court of Appeals last month shows how that question plays out, and what evidence an injured person needs to gather to answer it.

The three ways to prove the owner knew

A business owes its customers and visitors ordinary care to keep the premises reasonably safe. It is not, however, an insurer of everyone's safety. To hold a business responsible for a slippery substance or other hazard, Ohio courts require evidence of one of three things:

1. The business created the hazard. An employee mopped and left no sign. A cleaning crew over-applied floor polish. A stocker dropped a jar of pickles and walked away.
2. The business actually knew about it and did not clean it up or warn people in time. A customer reported the spill to a cashier. An employee walked past it.
3. The hazard was there long enough that the business should have found it. Lawyers call this constructive notice. A spill with cart tracks and footprints running through it, a puddle that has partly dried at the edges, or a leak that drips every time it rains can show the problem existed long enough that a reasonable inspection would have caught it.

Every piece of evidence in a slip-and-fall case should be gathered with those three categories in mind.

The case: a fall in an office-building restroom

In Anderson v. Jancoa, 2019-Ohio-3617, decided September 9, 2019, David Anderson arrived early for a business meeting at an office building in West Chester. He used the lobby restroom, washed his hands, turned to leave, and his foot slipped forward. He fell backward and struck his head hard, possibly on the sink counter.

He got up, felt something wet on the back of his sport coat, and tried to wipe it off. It did not feel like water to him. He went to his meeting. About fifteen minutes in, the person he was meeting with noticed he seemed rattled, asked what was all over his jacket, and called someone to clean the restroom. Anderson cut the meeting short and went for emergency treatment of neck and shoulder pain. He sued the building owner and the janitorial company that cleaned the restroom.

What the court said he proved

The defendants argued Anderson could not even say what made him fall. The Court of Appeals disagreed. Viewing the evidence in his favor, his testimony that there was something on the floor, combined with the wet, non-water substance on the back of his coat, was enough to show that a wet substance caused the fall. Quoting earlier Ohio cases, the court explained that a plaintiff "does not have to know" that an oily substance is motor oil; it is enough to know the oily substance caused the fall.

That is good news for people who fall. You do not need a lab analysis of what was on the floor.

What was missing: evidence of notice

The case still failed, because there was no evidence the owner or the janitorial company had put the substance there or knew about it. And because Anderson never looked at the substance, he could not say how big it was, what color it was, whether it was dirty or tracked through, or anything else that would suggest how long it had been there. Without those details, the court held, there was no basis to infer constructive notice.

(The court also held the trial judge could rule before Anderson deposed the person responsible for cleaning the restroom and that person's supervisor, because no formal Civil Rule 56(F) request for more time had been filed; Judge Piper dissented, arguing the case should have been decided on its merits after those depositions.)

Why this is an evidence lesson, not a technicality

Read closely, Anderson is a reminder about what must happen in the first minutes and days after a fall. The people who knew whether the restroom had been checked, when it was last cleaned, and whether anyone had complained were the cleaning staff and their supervisor. That kind of evidence is in the business's hands, and it can disappear.

Here is the evidence that answers the notice question:

At the scene, if you are able:

• Look at what you slipped on, and photograph it before it is cleaned. Note its size, color, and whether it has footprints, cart tracks, or dirt in it, or has dried at the edges. Those details are what prove how long it was there.
• Photograph the area, including any warning signs or the absence of them, nearby leaks, coolers, mop buckets, or floor mats.
• Photograph your shoes and clothing. The residue on Anderson's coat helped prove what caused his fall.
• Get names and phone numbers of anyone who saw the fall or the hazard, including employees.
• Report the fall to a manager and ask that an incident report be prepared. Ask whether anyone had already reported the spill.

Within days, through a lawyer:

• Demand preservation of surveillance video. Many systems record over themselves in days or weeks. Video can show when a spill happened and how many employees walked past it.
• Request cleaning and inspection logs. Restrooms and grocery aisles often have sweep sheets or checklists. A log showing no inspection for hours supports constructive notice; a missing log raises its own questions.
• Identify the cleaning contractor. As in Anderson, the company responsible for the floor may not be the property owner.
• Collect prior complaints and incident reports for the same area, such as a recurring leak.

In an earlier post on slip-and-fall proof, I walked through the basic elements. Anderson shows why gathering the right evidence early is what makes those elements provable.

When the hazard is an employee, not a spill

Not every fall at a business is a "condition" case. Last month I wrote about a restaurant case where a waitress backed into a diner. When an employee's own actions cause the fall, the business is responsible for that conduct directly, and the notice question works differently.

What this means for you

If you fall on a wet or slippery floor in a store, office building, restaurant, or hotel, the strength of your case will likely depend on proving the business created the hazard, knew about it, or should have found it. Much of that proof is in the business's possession, and some of it, especially video, has a short shelf life. Get medical care first. Then get help preserving the evidence. Our premises liability practice handles these claims throughout the Dayton area, and our personal injury page explains how we work.