Actual or Constructive Knowledge Necessary Element in Indiana Slip-and-Fall Lawsuit

Justices for the U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in an Indiana slip-and-fall lawsuit filed after a woman suffered an injurious fall at a pharmaceutical chain store. The court was asked to consider whether the lower court correctly granted summary judgment in favor of the defendant. The court affirmed, finding the plaintiff had failed to establish the defendant had actual or constructive knowledge of the hazard in question.

As noted by the 1992 Indiana Court of Appeals ruling in Barsz v. Max Shapiro, Inc., allowing the existence of a hazardous substance on the floor of a business can be a breach of the duty to exercise reasonable care (an essential element in any personal injury lawsuit rooted in the legal theory of negligence). However, before liability can be imposed on the invitor/property owner in such a case, one must first establish the property owner/controller had actual or constructive knowledge of the hazard. Actual knowledge is established if the defendant was informed or knew about that particular hazard existing at that time and location. Another 1992 premises liability ruling by the Indiana Supreme Court, Wal Mart Stores, Inc. v. Blaylock, held that constructive knowledge can be established if the plaintiff can show the condition existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented the injury if the storekeeper, its agents, or its employees had used ordinary care.

In the most recent case, the federal appeals court explained the facts of the case as follows. It was a cold day when the plaintiff arrived at a pharmacy store in Hebron, where a snowplow was just exiting the parking lot. She spent some time in the store and then was walking to the registers when she slipped and fell. She saw nothing on the floor that would have caused her fall. She simply felt her foot make contact with something wet, she slipped, and all her weight landed on her left knee before she fell backward onto her back. She suffered a broken kneecap and back injuries. more

Another customer did not recall seeing anything on the floor, and neither did the manager. A friend of the plaintiff’s, who arrived about seven minutes after the incident, took several photographs that seemed to show “water everywhere.” Several puddles of water existed in the general area where the plaintiff had fallen.

Paramedics who responded to the scene later told investigators the plaintiff had told them she was walking and slipped on something wet in the store. A doctor noted the same thing. Those statements were later excluded from evidence as hearsay.

The plaintiff filed her lawsuit in state court, but the defendant moved it to federal court. The judge concluded the plaintiff failed to show the store’s negligence caused her injury and granted summary judgment to the defense. The plaintiff appealed.

The plaintiff argued the store had knowledge of the hazard because the assistant manager of the store admitted anytime there was snow outside (as there was on this particular day), there was a possibility customers could track snow into the building and create potential hazards. However, the federal appeals court ruled that just because a hazard was possible doesn’t mean they were aware it had actually materialized in the place the plaintiff fell. The law doesn’t hold a store owner liable for a fall that occurs before it has a chance to remove the foreign substance from the floor.

Our Munster slip-and-fall attorneys recognize these cases are challenging, but we also understand how to overcome many of these challenges and help you ascertain early in the process whether you have a viable lawsuit.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Austin v. Walgreen Co., March 23, 2018, U.S. Court of Appeals for the Seventh Circuit

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