By Michael Shemtoub, trial attorney, Beverly Law. Updated November 2026.
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The elements, state by state
| What the injured person must prove | Source | |
|---|---|---|
| California | The defendant owned, leased, occupied or controlled the property; was negligent in using or maintaining it; you were harmed; and the negligence was a substantial factor. Negligence means a condition created an unreasonable risk, the owner knew or should have known of it, and failed to repair it, protect against it or warn. | CACI Nos. 1000 and 1003; Civ. Code 1714 |
| Texas | Actual or constructive knowledge of a condition; the condition posed an unreasonable risk of harm; the owner did not use reasonable care to reduce or eliminate the risk; and that failure proximately caused the injuries. | Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) |
| Washington | The owner knew of the condition or would have discovered it with reasonable care, should have realized it posed an unreasonable risk to invitees, should have expected they would not discover it or protect themselves, and failed to use reasonable care to protect them. | Tincani v. Inland Empire Zoological Society (1994), applying Restatement section 343 |
Keetch is a reminder that proving the hazard is only half the job. A Kroger shopper fell in the floral department near a desk where employees had sprayed plants with a leaf-shine product, and the jury agreed the slick spot was dangerous. It did not find that Kroger knew or should have known about it, so she recovered nothing.
Evidence of the hazard
You need proof of what you slipped or tripped on. The strongest is a photo or video of the substance or defect before anyone touched it. Next come descriptions from people who saw it: the employee who mopped it up, a cashier who called for a cleanup, the person who helped you stand. Physical details matter too. A spill with a cart track through it, a broken jar, a torn mat or a missing handrail all tell a story about the condition. Keep the shoes you wore so the other side cannot claim your footwear caused the fall without anyone being able to check.
Evidence of notice and time
This is where most cases are won or lost. California lets a jury infer notice when the owner did not inspect within a reasonable time before the fall, so the store’s sweep logs and its inspection policy are central (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1212-1213; CACI No. 1011).
Texas asks how long the hazard existed. In H-E-B, LP v. Peterson (Tex. 2026), the court contrasted the case before it with one where video showed employees walking past a large grease spill several times in the five minutes before a customer slipped, which counted as some evidence that the store should have known. Time-stamped footage of the spot is the kind of proof Texas courts look for.
Washington starts with the same notice rule but lets a shopper skip it when the way the business operates makes the hazard reasonably foreseeable (Pimentel v. Roundup Co., 100 Wn.2d 39, 49 (1983)). Evidence about the business’s methods, such as how it stocks shelves, handles produce or manages a wet entryway, can matter as much as evidence about the spill. Our Washington store fall page covers recent rulings on that exception.
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When the video or records disappear
Destroying or failing to keep evidence is called spoliation, and each state responds to it in its own way.
| How courts respond | |
|---|---|
| California | Jurors may consider a party’s willful suppression of evidence (Evid. Code 413) and may decide that evidence a party intentionally concealed or destroyed would have been unfavorable to it (CACI No. 204). There is no separate lawsuit against the other party for intentional spoliation that was or should have been discovered before trial; the court pointed instead to other remedies, such as that jury inference and discovery sanctions (Cedars-Sinai v. Superior Court (1998) 18 Cal.4th 1). |
| Texas | A duty to preserve arises when a party knows or reasonably should know there is a substantial chance a claim will be filed. A spoliation jury instruction generally requires a finding that the party acted with intent to conceal or destroy the evidence; negligent loss qualifies only in rare cases that leave the other side with no meaningful ability to present its claim or defense (Brookshire Bros. v. Aldridge (Tex. 2014)). |
| Washington | Courts look at how important the missing evidence was and how culpable the party that destroyed it was (Cloninger v. Chen (Wash. Ct. App. 2014), describing Henderson v. Tyrrell (1996)). |
Brookshire is a grocery store fall case, and its facts show why speed matters. The store kept about eight minutes of video, from just before the shopper walked in until shortly after he fell. Its system recorded over older footage after roughly 30 days, so everything else was gone. A written request to preserve the full recording, sent within days, takes that argument off the table.
Evidence of the injury
Liability gets you in the door. The injury evidence decides what the case is worth. That means the emergency room record, imaging, follow-up visits, physical therapy notes, bills and proof of missed work. Photos of bruises, swelling or a cast taken over several weeks show what a chart cannot. A short daily note about pain, sleep and what you could not do helps you answer questions accurately months later. Our page on whether a slip and fall is worth suing over explains how those records turn into damages.
What this means for your case
Think of evidence in two piles: what you control and what the owner controls. You control your photos, your shoes, your notes and your medical care. The owner controls the video, the incident report, the inspection logs and the names of employees on shift, and those are the items that need a written preservation request right away. If no one saw you fall, read slip and fall with no witnesses, and for falls in a large store see our California store fall page. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. More answers are in our injury FAQs.
Common questions
Is the store's incident report evidence?
It can be, but the store usually keeps it. Ask for the report number before you leave, and let a lawyer request the report and any photos employees took.
Do I need photos to win a slip and fall case?
Photos are not required, but they are often the clearest proof of the hazard. If you could not take any, a relative can photograph the area later, and a lawyer can ask for the store’s own pictures and video.
Should I keep the shoes I was wearing?
Yes. Put them in a bag and do not wear them again. The defense may blame your footwear, and having the shoes lets your side answer that.
Can my medical records prove how I fell?
They can help. Doctors often write down how an injury happened, so tell the emergency room exactly what you slipped on and where.
What if the store says it has no video?
Ask in writing what cameras covered the area and how long footage is kept. If footage existed after the store had reason to expect a claim and was then lost, the rules in the table above may apply. Beverly Law offers a free case review in English or Spanish at (310) 552-6959. You owe no fees or costs unless we win.
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Related pages
Sources
- Cal. Civil Code 1714 (leginfo.legislature.ca.gov)
- Judicial Council of California Civil Jury Instructions, 2026 ed. (CACI Nos. 204, 1000, 1003, 1011) (courts.ca.gov)
- Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200 (scocal.stanford.edu)
- Cal. Evidence Code 413 (leginfo.legislature.ca.gov)
- Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 (scocal.stanford.edu)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (courtlistener.com)
- H-E-B, LP v. Peterson, No. 24-0310 (Tex. Apr. 10, 2026) (txcourts.gov)
- Brookshire Bros., Ltd. v. Aldridge, No. 10-0846 (Tex. July 3, 2014) (law.justia.com)
- Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121 (1994) (courtlistener.com)
- Pimentel v. Roundup Co., 100 Wn.2d 39 (1983) (courtlistener.com)
- Cloninger v. Chen, No. 31833-8-III (Wash. Ct. App. 2014), describing Henderson v. Tyrrell, 80 Wn. App. 592 (1996) (law.justia.com)
Important: This page is general information, not legal or medical advice, and reading it does not create an attorney-client relationship. Every case is different; talk to a lawyer about yours. Texas cases are handled by the firm’s Texas-licensed attorneys, Joyce Ondich and John Efstathiou. Last reviewed: November 7, 2026.