Slip and Fall in a Store: What Ohio Law Requires You to Prove

Published November 3, 2010 · Injury Law Basics

A woman pushing a cart through the produce section at a Kettering grocery store steps on a crushed grape, goes down hard, and fractures her wrist. A man leaving a big-box store in Beavercreek slips on a puddle inside the entrance during a rainstorm and tears the ligaments in his knee. Both are hurt. Both assume the store is responsible. Only one of them may have a claim, and the difference is not how badly they were hurt. It is what they can prove about the hazard.

This post explains what Ohio law actually requires in a store fall case, why "I fell in their store" is the beginning of the proof rather than the end of it, and why the evidence that wins these cases disappears faster than in almost any other kind of injury claim.

The store is not an insurer of your safety

Ohio courts have said for decades that a business owes its customers a duty of ordinary care to keep the premises reasonably safe, but that it is not an insurer against every accident. The Ohio Supreme Court put the customer's burden into a three-part test in Johnson v. Wagner Provision Co., 141 Ohio St. 584 (1943), a case about a shopper who slipped on mayonnaise another customer had dropped minutes earlier. To recover, the injured customer must show one of three things:

1. The store created the hazard. An employee mopped the floor and left it wet without a sign, stacked merchandise so it fell into the aisle, or left a pallet in a walkway.
2. The store actually knew about the hazard and did not warn of it or clean it up promptly. An employee saw the spill, or a customer reported it, and nothing was done.
3. The hazard existed long enough that the store should have found it. This is "constructive notice." A spill that has been on the floor for forty-five minutes, with cart tracks running through it and a dried edge, is one a reasonably careful store would have discovered. A grape dropped thirty seconds earlier is not.

In Johnson, the customer lost because a very short time passed between the jar breaking and her fall, and there was no evidence employees knew. That is the defense in nearly every store fall case: "we didn't know, and we couldn't have known." Beating it is a matter of evidence.

The "open and obvious" defense

There is a second hurdle. Ohio recognizes what is called the open-and-obvious doctrine: a property owner owes no duty to warn of a danger that is so visible that it serves as its own warning. The Ohio Supreme Court reaffirmed the doctrine in Armstrong v. Best Buy Co., 99 Ohio St.3d 79, 2003-Ohio-2573, a case in which a customer tripped over a visible shopping-cart guardrail at a store entrance. The court held that where a danger is open and obvious, the owner owes no duty of care to people lawfully on the premises.

The doctrine is a favorite of defense lawyers, and I will say more about its limits in a later post. For now, the point is that circumstances matter. A hazard that would be obvious to a person standing still and looking at the floor may not be obvious to a shopper whose attention is where the store wants it, on the shelves. Earlier this year the Second District sent a Miami County case to the jury on exactly that kind of reasoning, in a case I discussed in Fall Down Dark Stairs? Dayton-Area Appeals Court Says a Jury Should Decide. Lighting, distractions, the store's own directions to the customer, and the location of the hazard can all make the question one for a jury rather than a judge.

The evidence that wins these cases

Because the whole case turns on what the store knew or should have known, the evidence has to show the hazard, its age, and the store's practices. Almost all of it is time-sensitive.

At the scene

• Photograph the hazard before it is cleaned up. Phone cameras have made this far easier than it used to be. Capture the substance, its size, its edges, any tracks or footprints through it, and the surrounding area, including any missing warning cones.
• Photograph your shoes and clothing. Residue on the sole of a shoe is evidence of what you slipped on. The defense will otherwise suggest your footwear was the problem.
• Get names. The employee who responded, the manager on duty, and any customer who saw the fall or, better, saw the spill before the fall. A witness who says "that was there when I walked by twenty minutes ago" is the whole case.
• Report it and get a copy. Most chain stores prepare an incident report. Make sure one is done, make sure it records what you slipped on, and ask for a copy. Do not sign anything that characterizes fault.
• Do not minimize your injury to the manager. Say what hurts.

In the days after

• Seek medical care immediately and tell the provider you fell in a store and what you slipped on.
• Preserve the surveillance video. This is the single most important step and the one with the shortest fuse. Most stores keep camera footage for a limited time, often measured in days or weeks, before it is overwritten. The video shows how long the spill was on the floor, whether employees walked past it, and how the fall actually happened. Our office sends a written preservation demand to the store as soon as we are retained, putting it on notice that destroying the footage will have consequences.
• Request the store's inspection and sweep logs. Many stores require employees to walk and inspect aisles on a schedule and record it. A log showing the aisle was last checked two hours before your fall is strong evidence of constructive notice. A log showing it was checked five minutes before is a problem, which is why we want to see it before the store decides whether to keep it.

Why these cases are worth pursuing when the injury is serious

Store falls have a reputation as small cases. Many are. But a fractured hip in an older customer, a torn rotator cuff requiring surgery, a herniated disc, or a head injury from striking a shelf or the floor is not a small case, and national retailers carry substantial insurance. The question is never whether the injury is "a slip and fall." It is whether the evidence proves the store's fault and whether the injury is significant. When both are true, these claims are won.

What this means for you

If you have fallen in a store and you are seriously hurt, three things should happen in this order: get medical care, preserve the evidence described above as best you can, and call a lawyer before the store's insurance adjuster calls you. The two-year deadline under R.C. 2305.10 that applies to most Ohio injury claims is not the deadline that matters here. The deadline that matters is the day the surveillance video is overwritten, and nobody will tell you when that is.