Slip and Fall Claims: Proving Notice in a California Premises Liability Case

People tend to think of a slip and fall as a minor case. Oftentimes the opposite is true. You're falling onto a hard concrete or tile floor, sometimes onto broken glass, and the injuries in these cases are often much more significant than most people expect: fractures, head injuries that bleed, and in some of our cases a significant brain injury from a fall in someone's own neighborhood grocery store. They weren't in a car. They had gone shopping.

The hard part of these cases is the proof. A slip and fall case has two parts, and people often have one without the other. They have a photo of the thing they slipped on, but that's not the whole case. The second part is notice, meaning whether the property owner knew, or should have known, that the hazard was there in time to do something about it. This chapter is about that second part: how it gets proven, which falls don't support a claim at all, why the evidence disappears so quickly, and how the rules change when the property belongs to a city.

Premises liability is the duty property owners have to keep the people they know will be on their property safe from hazards. That duty runs from owners, tenants and property managers to the general public, both to the people who come onto the premises and to the people who work there. To put it in plain terms, if you run a place that people walk through, you're responsible for keeping it reasonably safe to walk through.

When I look at one of these cases, there are a few components. The first is notice. The second is the link between the hazard and the injury. If someone gets hurt for a reason that has nothing to do with the hazard, the hazard doesn't matter for our purposes. If the hazard causes the injury, we have the link, and that's what's important.

Notice comes in two forms. In some cases the owner knew about the hazard because the owner created it. Picture a pallet sticking out into a walkway, or set down crooked so its edge hangs into the aisle. That pallet wasn't there until the store or the tenant put it there, and when someone trips on it, we don't necessarily need to provide notice at all. Most premises cases are not like that. Most are should-have-known cases, and those take more work.

The classic should-have-known case is the grocery store spill. A jar of salsa falls off the shelf and smashes, and there's broken glass and liquid spread across the aisle. Someone comes down the aisle and doesn't see it, because they're looking at the shelves, which is exactly how stores are set up: to keep shoppers looking up and out, not down at their feet. They step in it, they slip, they fall, and maybe they land on the glass and cut themselves too.

Grocery stores are full of jars and containers of liquid. Salsa, milk, juice, melted ice cream, even spilled flour can make a floor slippery enough to seriously hurt someone who doesn't see it. Because these hazards are so common and the stores know it, they have to have safety protocols in place to catch them. The most common is a sweeper, an employee whose job is to walk the aisles on a loop, back and forth through the whole store and then around again, looking for anything dangerous and cleaning it up or at least flagging it before someone steps in it.

The gaps in that system are where a should-have-known case comes from. In a very large store, the company may run one sweeper where it needs two. The sweeper goes on a lunch break and nobody fills in. The sweeper's shift ends at five o'clock while the store stays open until midnight, and nobody is paid to sweep in between. In those situations something falls and sits for thirty minutes, forty-five minutes, an hour, and then someone gets hurt. If a store has safety protocols and isn't following its own protocols to save money, that gives us a way in. We can show the store knew this was dangerous and chose not to do what its own rules said.

The evidence for that comes from a few places. Sweep logs record how often the aisles were patrolled. The other piece is how long the hazard had been on the floor, because sauce that had been there 10 seconds and sauce that had been there 15 minutes are very different cases. Typically what proves that is surveillance footage. It can show the timestamp when the jar fell, and the 45 minutes of shoppers who walked past it. Sometimes it shows a store employee walking by, looking right at the spill, and moving on to get to it later, and then someone slipping on it half an hour afterward.

Not every fall in a store is a case against the store, and I think it's important to say so plainly. If something falls a second before you get there, the store may not have had adequate notice. It had no reasonable opportunity to see the hazard and clean it up. If you're directly following someone and they drop something behind them and you trip over it, you're not going to be able to pursue that case against the store. If someone knocks something to the ground directly in front of you and you step on it, you may have a negligence claim against that person, but you're likely not going to have one against the store.

The more common scenario, and the more likely one in most of these cases, is different. Something was stacked improperly or knocked down by another shopper, and then 30 minutes, an hour, maybe two hours go by before someone slips on it. A lot of people don't think about that distinction when they think about slip and falls, and it's often the whole case.

I think you should expect the property owner to fight on both fronts. The first move is usually to put as much fault as possible on the person who got hurt, by attacking their credibility. Maybe they had a beer before they came in, so the store says they were intoxicated. Maybe they were wearing sandals, which is pretty common in the summertime, so the store says the sandals caused the fall. Surveillance footage is what answers that. It's a lot harder to blame the flip-flops when the video shows someone walking normally until they hit something wet and their feet go out from under them. The second move is to dispute notice: the store had someone sweeping, the sweeper didn't see it, so it must have just happened. That's where the logs and the timestamps matter.

So people get out of there. They want to be somewhere quiet where nobody is looking at them. They figure their knee hurts but they'll go home and ice it. Nobody would call that a mistake in the moment. The problem is what happens next, or rather what doesn't. If nobody contacts the store, nothing happens on the store's end. No incident report gets filed, and the surveillance system keeps doing what it does, which is record over itself. Some systems record over themselves every day, some every couple of weeks, some on a longer cycle. Once you're a month out, I assume the footage is gone.

Then a week or two later, the knee is still bothering them. They see a doctor or go to the ER, get an X-ray, and learn the knee is fractured, and now they realize this may affect them for a long time. By then it can be too late. Without an incident report, without the footage, and without a preservation letter sent before the recording cycled over, we may not have an avenue of recovery. It's often to the owner's benefit not to preserve the footage, because the owner knows what we have to prove, and every missing piece puts the owner in a better position.

What you can do at the scene, if you're able, is simple. Take photos. If people come over to check on you, and in a grocery store someone usually will, get their name and phone number. Six months later the property owner may say the fall never happened and you were never in the store. A witness who saw you on the ground can prove those cases even without surveillance footage. Without a witness and without footage, there's often nothing left to pursue.

I know nobody wants to rush out and hire a lawyer after a fall. It sounds litigious, like you had it planned all along. But more than almost any other type of case, this is one where getting a lawyer involved early decides whether there is a case at all. If there is any doubt, get the answers early, while the evidence still exists.

For a standard slip and fall, you typically have two years (California Code of Civil Procedure section 335.1). But a lot of the falls I see happen on sidewalks or around city and government buildings, and those carry a much shorter deadline. When a public entity is involved, the claim typically has to be presented within six months (California Government Code section 911.2). What happens all too often is that someone gets hurt, treats for seven, eight or nine months, realizes they are seriously injured, and then learns the six-month window has closed and the claim may be lost.

Part of the problem is that the person who falls often doesn't know who owns the property. Is it a private owner, a business, the city, the state? Each answer changes which insurance is in play and how much time you have. Sidewalk cases themselves are often strong on notice, because an uplift or a crack in a sidewalk has typically been there a long time, a year, maybe two. Some cities routinely maintain their sidewalks and some don't, and when a city doesn't, taking it to court is sometimes the only way to get the change that's needed.

One notice defense I remember well came from a city that had done the work. We had a case against a fairly large city in Orange County involving a palm tree. The city had crews out trimming that palm tree about a month before the incident, and it said immediately that it wasn't liable. It had inspected the tree, deemed it safe and trimmed it, so whatever happened was unforeseeable. Several attorneys had passed on the case because they didn't see a way around that notice defense.

What fell was the pineapple, the brown, scruffy section just under the fronds that you see at the top of the tall, thin palms in places like Los Angeles or Beverly Hills. It collapsed and fell about 50 feet, directly onto our client's head. They were unconscious at the scene and still unconscious when police and paramedics arrived, so we're talking about five to ten minutes with no consciousness at all. It was a severe head injury.

We hired an expert who explained what had happened. Cities with rows of palm trees may tell crews to trim every pineapple to a set specification, so much pineapple and the rest of the trunk. If the crews trim to that specification without checking the pineapple's structural integrity as they go, they can shave away the material that supports it. A pineapple starts narrow and grows outward, and once the underlying material is gone, you're left with a heavy, unsupported mass that can collapse on its own. The city was supposed to have certified arborists pruning those trees. What it had was work crews with a certified arborist overseeing them but not on site to see how the work was done. The city's own trimming created the dangerous condition.

That case went from a zero offer, or at most a nuisance offer of $10,000 or $15,000, to a case that resolved for over $5 million. Results depend on the facts of each case, and no past result promises another. The injury was severe from the first minute. What changed was that someone dug past a defense that looked very good on the surface.