Litigation Defenders

In the context of litigation, it pays to be proactive.

There are key pieces of evidence every business owner should think about gathering when they receive a claim that someone had a slip-and-fall or trip-and-fall on their premises. This critical evidence includes:

1. Drafting a contemporaneous incident report
2. Maintaining surveillance video
3. Obtaining statements and contact information of witnesses (including employees)

In Michigan, if a business fails to preserve relevant evidence once it is aware of the possibility of litigation, this is called spoliation. Importantly, Michigan courts have the authority to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation has even commenced. See Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997).

Recently, the Michigan Court of Appeals doubled down on this concept. Nagel v Old Shillelagh, Inc, is an unpublished opinion of the appellate court, issued Jan. 13, 2022 (Docket No. 355669), 2022 WL 128586 at *2.

In Nagel, the appellate court held spoliation can occur when a party fails to preserve relevant evidence once the possibility of litigation arises, “regardless of whether the evidence is missing as a result of a deliberate act or simple negligence.” 2022 WL 128586 at *2.

Court sanctions can negatively impact your legal positioning in a case and can result in severely damaging consequences. One possibility is that the trial court could rule the opposing party is entitled to an adverse inference jury instruction. Nagel, 2022 WL 128586 at *2. Such an instruction allows a jury to infer the missing evidence or testimony from a party would have been unfavorable to that party’s case if it had been produced.

Incident Reports

Maintaining an incident report is key in slip-and-fall litigation. Incident reports document valuable information that may provide a defense to a claim.

Details an incident report should capture include:

• Date of the incident;
• Time of the incident;
• Witnesses (including contact information);
• Information on how the fall occurred;
• Information on what created the spill (or lack thereof);
• The location where the incident occurred; and,
• Whether or not photographs and/or surveillance video were created.

Incident reports allow defense attorneys to paint a picture for the jury of what really happened. And incident reports often provide key facts to counter a premises liability claim.

Surveillance Video

Cases can be won and lost because of surveillance video.

Quite often, surveillance video contains significant information that would not otherwise be available in mounting a defense to a claim. For example, if a surveillance camera captured the incident, did the camera also capture when the spill was created? Surveillance video should be retained even if it does not show any evidence of a fall as it may be used to disprove one even happened.

This key question can determine the outcome of a case. A strong defense against a premises liability claim is that the premises possessor did not have (1) actual or (2) constructive notice of the condition.

Actual notice exists when the premises owner had actual knowledge of the existence of a dangerous condition or if the premises owner caused the alleged dangerous condition. Hampton v Waste Mgt of MI, Inc, 236 Mich App 598, 603-604; 601 NW2d 172 (1999).

A premises possessor is presumed to be put on constructive notice of a dangerous condition on its premises if the condition is of such a character that it would be found by a reasonable inspection, or if the condition was present long enough that the possessor should have known of it. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 10; 890 NW2d 344 (2016).

If surveillance video demonstrates that a customer spilled a cup of ice just minutes before the plaintiff’s slip-and-fall, and no employee or customer observed the spill, this could be a game changing fact in favor of the premises owner.

Witness Statements

Memories fade, and so do important facts if they are not recorded.

It is essential to take the statements of any witnesses, including employees, after a slip-and-fall occurs. Key pieces of evidence are often found in statements, including:

• Were the business’ employees aware of the spill?
• Did any witnesses see the spill occur?
• Were there employees in the area before the fall who did not observe the spill?
• Were any employees informed about the spill by other patrons?
• Was there a wet floor and/or caution sign present?

These are just some of the important steps a premises owner can take to prepare for slip-and-fall litigation. If you are aware of even the potential that litigation may occur, you could be on notice to preserve evidence.

Remember, the memories of eyewitnesses fade quickly, and video surveillance is all too often overwritten within short time frames.

By being proactive and taking these steps to prepare for potential litigation, you could save yourself a headache later or even help win your case!