After almost thirty years, I can tell you exactly what separates winning slip and fall cases from losing ones. It is not the severity of the injury, although that matters for the value. It is the evidence. Specifically, three categories of evidence that either make your case bulletproof or leave it vulnerable.
Notice is the first and most important category. You have to prove that the property owner knew or should have known about the hazard that caused your fall. There are two types of notice. Actual notice means the property owner had direct knowledge of the condition. A customer reported the spill. An employee saw the ice. A maintenance crew identified the broken step and put in a work order. Constructive notice means the condition existed long enough that a reasonable inspection would have discovered it. A puddle that sat for an hour in a high-traffic aisle should have been found and cleaned up. An icy sidewalk that persisted for two days after a storm should have been salted.
The hardest cases to win are the ones where the hazard appeared moments before the fall and the property owner had no opportunity to discover it. If a customer dropped a grape thirty seconds before you walked down the aisle and slipped on it, the store may not be liable because they did not have reasonable notice. This is why surveillance footage is so valuable. The timestamp on the footage can establish exactly when the hazard appeared and how long it existed before your fall.
The condition of the hazard is the second category. You need to document what caused you to fall with specificity. Not just a wet floor, but what substance was on the floor, how large the area was, whether there were warning signs or barriers in place. Not just ice, but the specific location, the thickness, whether it was the result of natural accumulation or an unnatural condition created by drainage or prior plowing. The more detailed the documentation, the harder it is for the defense to characterize the hazard as open and obvious or trivially minor.
Your own conduct is the third category, and it is the one the defense will focus on. Were you looking at your phone? Were you wearing appropriate footwear? Were you in an area you should not have been in? Were you rushing? Were there warning signs you ignored? Under Illinois comparative negligence law, if you were more than fifty percent at fault, you recover nothing. If you were less than fifty percent at fault, your recovery is reduced by your percentage of fault. The defense will scrutinize your behavior, so your lawyer needs to be prepared to explain why the property owner's negligence was the dominant cause.
If you have a slip and fall case and you are wondering whether the evidence is strong enough, call me at 312-500-4500. I will give you an honest evaluation based on the facts.
If we can’t prove that the owner or manager did something wrong, then we can’t prove that they were negligent. In every injury case, we have to prove that the business or person we are using was negligent, otherwise, we can’t recover. In slip and fall cases we have to prove exactly what caused you to fall and resulted in your slip and fall injuries, then we have to be able to prove that the landlord or manager created the problem, or knew about the problem. Or that the problem was there for so long that they should have known about it and fixed it. We have to be able to prove one of those three things, or it’s impossible for us to win the case.
You need to prove three things: (1) a dangerous condition existed on the property, (2) the property owner knew or should have known about the condition and failed to fix it or warn you, and (3) the dangerous condition directly caused your fall and your injuries. If you can establish all three, you have a strong case.
There are two types of notice: actual notice (someone told the property owner about the hazard, or they saw it themselves) and constructive notice (the hazard existed long enough that a reasonable property owner would have discovered it through routine inspections). Surveillance footage showing a spill sitting on the floor for 30 minutes before your fall is powerful constructive notice evidence.
You can still win your case without eyewitnesses. Surveillance footage, photos of the hazard, the incident report, your medical records showing injuries consistent with a fall, and evidence that the property owner had notice of the condition can all support your case. A lawyer can help you gather this evidence.
They need to have had actual or constructive notice. They don't have to have personally witnessed the hazard, but they must have known about it or should have known about it through reasonable inspections. A store that does floor checks every hour has a strong defense; a store that never inspects its floors does not.
Yes, though it may reduce your recovery. Under Illinois comparative negligence law, you can recover as long as you were less than 50% at fault. Your recovery is reduced by your percentage of fault. Even if you were distracted, the property owner still had a duty to maintain safe conditions.
The open and obvious doctrine is one of the most common defenses raised in Illinois slip and fall cases. The argument is that the hazard was so apparent that a reasonable person would have noticed and avoided it - and therefore the property owner had no duty to warn or correct. The doctrine has two important exceptions: the 'distraction exception' (where the claimant's attention was reasonably diverted in a foreseeable way, such as a customer looking at displayed merchandise) and the 'deliberate encounter exception' (where the claimant had no reasonable alternative but to confront the danger, such as needing to reach a building entrance over a snow-covered walkway). The open and obvious analysis is fact-specific, and many cases that defendants try to dismiss under this doctrine survive on one of the exceptions.
Illinois follows a long-standing rule that property owners are generally not liable for falls on natural accumulations of ice and snow - fresh snowfall, frost, freezing rain. The Illinois Snow and Ice Removal Act, 745 ILCS 75/, reinforces this for residential property owners. The big exception is unnatural accumulation: ice or snow that exists or was made worse because of the property owner's actions. Examples include a downspout that drains onto a walkway and freezes; a plowed snow pile that melts and refreezes across a sidewalk; a poorly drained surface that collects water and ices over; a roof that drips onto an entrance area. Winter slip and fall cases are won and lost on the natural-versus-unnatural distinction.
Two years from the date of the fall under 735 ILCS 5/13-202 for claims against private property owners. If the fall happened on city, county, state, or other government property, the Illinois Local Governmental and Governmental Employees Tort Immunity Act applies a one-year statute of limitations, plus written notice requirements that can be even shorter (within six months for some entities). Claims against the CTA have a six-month notice deadline and a one-year filing deadline under 70 ILCS 3605/41. The exact deadline depends on who owns the property where the fall occurred - which is sometimes not obvious. Talk to a lawyer early.
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Scott DeSalvo founded DeSalvo Law to help injured people throughout Chicago and surrounding suburbs. Licensed to practice law in Illinois since 1998, IARDC #6244452, Scott has represented over 3,000 clients in personal injury, workers compensation, and accident cases.
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