Video Killed The Big Box Slip & Fall Defense

There is a belief that the use of video surveillance in stores helps companies bolster their defense in the event of a lawsuit. But that’s not always the case. In fact, sometimes the opposite is true, and surveillance can lead to excellent results for the injured party. An injured person just needs to hire a personal injury law firm who is willing to fight for their rights through the court system. That is exactly what happened in a recent case handled by JB Law’s Managing Partner, Jonathan Burns.

As we have documented previously, there are two stages of a lawsuit.  The vast majority of cases resolve in pre-suit and do not require the filing of the lawsuit. However, in a premises liability case, it is exceedingly rare to get access to the surveillance video prior to the filing of the lawsuit. So, the premises liability cases that settle in pre-suit, often do so without the injured party or his/her attorney seeing the surveillance video.

In this case, our client “Janie Doe” was walking through a big box retail store when she slipped and fell as a result of liquid on the floor. Janie injured her back and went to the hospital for treatment. However, after several months of not improving, Janie’s orthopedic doctor informed her that the best chance of recovering was to undergo a significant back surgery known as a fusion. Janie agreed.

After Janie healed from her surgery with positive results (but not back to her pre-fall habits or lifestyle), Mr. Burns sent a Demand Package to the retailer. On behalf of the client, Mr. Burns demanded a sum of money to compensate Janie for her serious injury and resulting surgery.

In response, the big box retailer offered a solid settlement, but not as much as Mr. Burns was expecting. The store’s legal team claimed the surveillance video did not clearly show what caused Janie to fall. In fact, they said it appeared as though she may have tripped on her flip flop. Despite the confusion, the retailer offered Janie approximately 75% of what Mr. Burns was expecting to resolve the case.

Following the initial settlement offer, Mr. Burns sat down with Janie to explain her options:

• File the lawsuit and pursue the big box store through the court system. This would include gaining access to a copy of the surveillance video, which showed the fall.
• Settle the lawsuit for a pretty good result, but not the result Mr. Burns and Janie were expecting.

Given Mr. Burns’ background in litigating high-end personal injury cases stemming from on-premise incidents and auto accidents, Mr. Burns suggested the first option. Sensing Mr. Burns’ confidence, Janie quickly agreed and they proceeded to pursue the case through litigation.

Upon filing any case, along with the Complaint, Mr. Burns served the defendant with discovery requests for information such as documents, video footage, and photographs. In Janie’s case, Mr. Burns immediately requested the surveillance video from the store. But the big box retailer objected to the request, claiming the surveillance video should not be produced until after Janie was deposed about her slip and fall.

Mr. Burns responded by filing a Motion To Compel Production of the Video and set the motion for a hearing with the judge assigned to the case. After much back and forth at the hearing, the judge ordered the store to produce a copy of the surveillance video within ten days.

A few days later, Mr. Burns received the surveillance video and immediately watched it on his computer. Interestingly, the video was not as cut and dried as the store’s pre-suit adjuster implied in earlier negotiations.

Mr. Burns watched Janie walking through the aisle when her right foot clearly slid across the white floor. While it is always difficult to see water on a white floor, it was clear this was not a situation where Janie tripped on her flip flop. Her foot was consistent with sliding in liquid. Further, Janie explained that her clothing was wet following the fall and she saw remaining liquid on the floor after she hit the ground. Mr. Burns and Janie’s instinct to file suit had already paid dividends and thanks to the surveillance video, it was about to pay off with even larger settlement offers.

A couple days after producing the surveillance video, the attorneys for the big box store requested an early mediation to resolve Janie’s case. Had their team been more straightforward during the pre-suit phase, they would have paid significantly less. But instead, they challenged Mr. Burns to pursue them in court – a challenge Mr. Burns gladly accepted. As a direct result of placing the case into litigation, Janie received 130% of what Mr. Burns initially suggested. JB could not have been more pleased with the outcome of the case. This was yet another win for one of our many deserving clients.