Slip and Fall – Inside of a Shopping Mall
Fall and winter weather can make shopping malls more hazardous, as snow, rain, and slush get tracked inside. These conditions, combined with the increased crowds during the busy holiday season, increase the risk of injury. If you are hurt in a shopping mall, it is important to know what steps to take. This guide will explain your options.
Understanding Occupiers’ Liability
In Ontario, the Occupiers’ Liability Act governs most claims for injuries that happen on someone else’s property, including shopping malls. An occupier is defined in Section 1 of the Act as:
- A person who is in physical possession of the premises, or
- A person who has responsibility for and control over the condition of the premises, the activities carried out there, or the persons allowed to enter the premises.
There can be more than one occupier involved, especially in complex spaces like shopping malls where responsibility may be shared between store owners, mall owners, property managers and third party cleaning/maintenance contractors (among others).
Section 3(1) of the Occupiers’ Liability Act states that an occupier “owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while on the premises.” This duty means that both the mall and the stores inside it must be maintained to prevent injuries, whether that involves clearing wet floors, fixing broken escalators, removing hazards or keeping walkways clear.
Special Considerations for Shopping Mall Injuries
When an injury happens in a shopping mall, the situation can be more complicated than in other places. Here are some things to consider:
- Who is responsible? If you slip and fall inside a store, it might not be clear who is responsible for your injury. It could be the store owner, the mall owner, or both. In these cases, it is often smart to sue both the store and the mall to make sure the right party is held accountable.
- Common areas can be tricky. Even if your injury happens in a common area like a hallway or food court, you might need to sue more than one party. For example, if you fall because of a wet floor, the mall owner, individual custodians, and the custodians’ employers could be responsible. This makes it important to figure out who is responsible for maintaining that area.
- What about Property managers and unknown occupiers? Some malls are run by property managers rather than the mall owners themselves. The property manager or a third party maintenance contractor might be the true occupier responsible for maintaining the mall’s condition. However, their identity may not be known immediately after an injury, so you may need to add them to your lawsuit later as more information becomes available.
Gathering Evidence Early
If you are injured in a shopping mall, it is essential to gather evidence as soon as possible. Shopping malls are busy places, and evidence like witness statements, video footage, and photographs may disappear quickly. Most malls have security cameras, but footage may only be kept for a limited time. Taking immediate action will help preserve valuable evidence. You should take pictures of the scene, and document the cause of your fall or injuries if possible. Identifying and contacting witnesses early is also crucial. Speaking to a personal injury lawyer right away will ensure that this evidence is preserved and that your rights are protected. Delaying could mean losing critical evidence that supports your claim.
Contributory Negligence
The occupier may argue that you were partially at fault for your injury. This is called contributory negligence. For example, they could claim that you were not paying attention to your surroundings or that you were wearing inappropriate footwear. To counter this argument, it is essential to document the incident immediately and gather as much corroborating evidence as possible, such as video footage of the fall or witness statements. While contributory negligence does not mean you cannot receive compensation, it may reduce the amount you can recover.
Limitation Periods
You must be aware of the statute of limitations, which governs how long you have to issue a claim after being injured. In Ontario, the general limit is two years from the date of injury, as per the Limitations Act, 2002.
Final Thoughts
If you are injured in a shopping mall, taking immediate action is critical. Beyond identifying the right parties responsible for your injury, securing crucial evidence early can make or break your case. Witnesses forget, video footage gets erased, and physical conditions change quickly. By speaking to a personal injury lawyer as soon as possible, you ensure that all necessary steps are taken to protect your rights, preserve key evidence, and build a strong case. With the right legal guidance, you can pursue the compensation you deserve and focus on your recovery.
