DON’T MISSTEP AFTER A FALL Taking Steps to Preserve your Evidence Deborah Nelson+ March 4, 2014

A guest blog by our friend Fred Schwartz of The Law Office of Fred Schwartz.

While various jurisdictions have causes of action and monetary damage remedies to deter, guard and protect against Defendants tampering, spoiling or destroying evidence, all too often it is the injured party who unknowingly harms their case by failing to properly gather and preserve evidence.  This situation often arises in slip and fall accident cases.

In most premises liability cases, the injured party must prove the negligence of the defendant.  In meeting that burden, the injured person will likely need to present evidence demonstrating that the defendant either created the dangerous condition, had actual notice of the condition, or had sufficient time to discover the condition had they used reasonable care, but failed to remedy the danger or hazard.   The injured party needs to obtain, gather, document and preserve the evidence as best they can immediately following the incident.  The following steps should be taken at the accident scene and immediately thereafter:

  • Photograph.  Most cell phones are equipped with cameras. Take photographs of the accident scene.  What caused you to fall? Photograph any spills, puddles of liquid or water, sources of the spill or hazard such as a leaky freezer or refrigerator; broken pipe, exposed wire, pot hole, etc. Look to see and photograph whether there were any warning signs or cautionary cones posted. If you slipped on a puddle of water or liquid, was there a rubber mat in place.
  • Surveillance Cameras.  Check for any surveillance cameras that may have captured the incident and captured the activity around the accident scene. Request a copy of the surveillance tape at the scene and demand that it is preserved and not erased or recorded over.
  • Measure and Observe. Take measurements or at least observe the size and dimensions of the dangerous condition. Try to determine the source of the dangerous condition.
  • Witnesses. Obtain witness information and try to get them to write a witness statement as to what they observed and heard.
  • Incident Reports. Obtain copies of any incident statements or reports that you provided at the accident scene.
  • Clothing and shoes.  Do not wash or discard the clothes you were wearing at the time of the accident.  Your stained or soiled clothing helps demonstrate   the source and extent of the liquid, substance, oil, dirty or water that you slipped in.  Also, do not discard or continue wearing the shoes or footwear that you had on at the time of your fall.  It is important to preserve the condition of the footwear at the time of the fall.  The substance you slipped on may still be on the sole of your shoes.  Further, the type of shoe, heel height, and bottom may be an important component of the fall.

Admittedly, at the time someone is seriously injured and in excruciating pain they are most likely not thinking about gathering and preserving evidence.  They just want help alleviating the pain. However, they may later want to seek compensation for the pain they suffered and related economic loss.  That is why it is advisable to promptly seek the advice of an experienced slip and fall/premises liability attorney whose team can take prompt action to put the defendant on notice of its duty to preserve the evidence; obtain witness statements; investigate the accident scene; and take any needed photographs, measurements or tests.

About the author/blogger:

Personal injury and consumer justice attorney, Frederick S. Schwartz, is a Los Angeles based California licensed lawyer with over two decades of experience in fighting injustice and founder of the Law Office of Frederick S. Schwartz.