What is contributory negligence? If you are one percent (1%) at fault, you cannot recover. Most states, 46 to be exact, are comparative negligence, and if you are one percent (1%) at fault, you recover 99% of the award. Consequently, when you are walking on your own two feet in a store and fall and get hurt, it is hard to say you weren't at least one percent (1%) at fault.
What do you do if you fall and get hurt?
First, if you can, or if you are with someone, get the names and telephone numbers of witnesses. They will be needed down the line. Make sure the store manager fills out an incident report and see if you can get a copy. Many times, they will refuse to give you a copy. Keep your clothes and shoes to show what you were wearing and any substances that might have caused your fall (spilled ketchup, coke, etc.). When you seek medical treatment, be clear about the fact that the fall caused your injuries and where they occurred. Those records will be used down the line.
What do you have to prove?
In order to win your case, you will have to prove the store did something wrong. In order to do that, they have to have actual notice of the problem or constructive notice. Actual notice means that they either created the problem or knew that it existed and failed to clean it up. For example, if a clerk spills a substance on the floor and someone is injured before he cleans it up, or if a clerk sees a spill but doesn't tell anyone about it. The other type of notice, constructive, means that the substance has been on the floor for a significant period of time and should have been cleaned up. For example, a customer spills ketchup on the floor, and it sits there for 2 hours. This is why witnesses and statements are so important. Many times, the manager might say, "I told Johnny to clean that up two hours ago." If you have a witness other than yourself, it means a lot more instead if it just being your word against his.
Many of these cases get thrown out of court before reaching a jury because they are so hard to prove. Most times, the employees don't admit to creating a problem or knowing it's there, and without that testimony or a witness, how do you prove it had been there too long. The store also tries to defend these cases by saying the problem was "open and obvious", and therefore, you should have seen it and not fallen. In that defense, the store has the burden of proof, but many attorneys and judges don't recognize that. The main thing is to try to document the incident to protect your rights.