Checklist · Tort

Documenting and Presenting a Premises Liability Claim: A Practical Checklist

28 U.S.C. § 2675

Type
Checklist
Jurisdiction
National
Date
2023-11-26
Topic
Tort

This checklist runs a premises liability claim from the ninety seconds after the fall through settlement, in ten phases. Phase 1 is the scene, where the case is created or lost, and Phase 2 covers the first twenty-four hours and the medical record. Phase 3 is the preservation letter, without which the video that would prove notice is overwritten within days. Phase 4 identifies every entity with control, and Phase 5 covers the deadlines, including the government notice of claim that is measured in weeks rather than years. Phases 6 and 7 cover discovery, the records that come from third parties, and the experts who must inspect a condition before it is repaired. Phase 8 covers dog bites and negligent security, which follow different rules from ordinary hazards. Phase 9 covers damages, liens, comparative fault, and settlement, and Phase 10 runs the property owner's response protocol. Model letters, a deadline table, a division of responsibility, and a ranked failure-mode list are included.

Documenting and Presenting a Premises Liability Claim: A Practical Checklist

Tort > Premises Liability | Published 26 November 2023 - Updated 2 July 2026 | UpLaw - uplaw.us

Phase 1 happens in ninety seconds, on the floor, before anyone helps you up. It decides more about the case than everything in Phases 2 through 10 combined.

The narrative is It Was Wet and Nobody Said So: How Premises Liability Cases Are Won and Lost. The doctrine is Premises Liability: A Comprehensive Guide to Duty, Notice, Dog Bites, and Negligent Security. The letters and worksheets are in The Premises Liability Claim Toolkit.

Phase 1 — The scene

☐ PHOTOGRAPH THE CONDITION BEFORE ANYONE CLEANS IT.

  • ☐ Close shot of the substance or defect
  • ☐ The edges — dried rims, cart tracks, footprints, dirt. These prove how long it was there, and they are the whole case.
  • ☐ Wide shot in both directions showing context
  • ☐ The absence of any cone or warning sign
  • ☐ Something for scale — a shoe, a hand, a store item
  • ☐ Lighting conditions
  • ☐ Your shoes

☐ Photograph the camera locations.

☐ Get witness names and phone numbers — especially other customers, who are neutral and who vanish within ninety seconds.

☐ Report to a manager. Get their name.

☐ Insist on an incident report, and read it before signing.

  • ☐ Does it describe what actually happened?
  • ☐ Does it record the substance? If the report says "no substance observed," say so out loud and ask for a correction.
  • ☐ Do not sign a description in words you would not use.
  • ☐ Ask for a copy. If refused, photograph it on the clipboard.

☐ ⚠ DO NOT SAY "I'M FINE." Say: "I don't know yet. I'm going to get checked out." Adrenaline masks injuries for hours, and "I'm fine" appears in every incident report and every defense argument.

☐ Do not sign a release or a medical authorization at the scene.

☐ Note the exact time, the aisle or location relative to fixed landmarks, and what employees said — especially anything like "I told them about that" or "that's been leaking all day."

Phase 2 — The first twenty-four hours

☐ Get medical attention today. A gap between the incident and the first treatment is the defense's best argument.

☐ Describe the mechanism precisely to the provider: the date, the location, the substance, how you fell, and every body part that hurts, including the ones that hurt less.

☐ Do not minimize. "It's probably nothing" becomes an exhibit.

☐ Write your own account the same day, in full sentences: time, place, what you were doing, what you saw before and after, who was present, what was said.

☐ Preserve the clothing and shoes you were wearing, unwashed, in a bag.

☐ Start a treatment log — every visit, every provider, every out-of-pocket cost, every mile.

☐ Do not post about it.

☐ Do not give a recorded statement to the property owner's insurer before consulting counsel.

☐ If the property is government-owned or operated — a sidewalk, school, park, transit station, or public hospital — flag it now. See Phase 5.

Phase 3 — The preservation letter

☐ Send within days, not weeks. Most surveillance systems overwrite in seven to thirty days, some in three.

☐ Understand what the defendant will otherwise save: a two-minute clip around the fall. That is not the evidence you need. The hour before shows how long the condition existed and whether anyone inspected.

Model preservation letter

"This firm represents [name] regarding an incident at [address] on [date] at approximately [time], in [precise location].

Litigation is anticipated. You are requested and required to preserve the following, and to suspend any automatic deletion or overwriting:

1. All video from all cameras with any view of the location, from two hours before to one hour after the incident. This request is not limited to any clip already extracted. 2. The incident report and all drafts, notes, and internal communications about the incident. 3. All photographs taken by you or on your behalf. 4. All witness statements. 5. All inspection, sweep, cleaning, and maintenance logs for the location for the day of the incident and the preceding thirty days. 6. All prior incident reports for this location and for this type of hazard for the preceding three years. 7. Employee schedules, time records, and assignments for the shift. 8. All contracts with cleaning, maintenance, security, and snow-removal vendors. 9. All policies, procedures, and training materials governing inspection and hazard response. 10. The physical condition or surface itself, unaltered, pending inspection.

Failure to preserve this material after notice may support sanctions, including an adverse inference instruction."

☐ Send it to the store, the corporate registered agent, and any known insurer. ☐ Send it by a method that proves delivery. ☐ Note the federal framework for lost electronically stored information at Federal Rules of Civil Procedure § 37, with discovery scope at Federal Rules of Civil Procedure § 26 and production at Federal Rules of Civil Procedure § 34. See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

Phase 4 — Identify every entity

☐ Who owns the property? — county land records ☐ Who manages it? ☐ Who is the tenant in control of the area? ☐ Who has the cleaning contract? ☐ Who has the maintenance contract? ☐ Who has the snow-removal contract? ☐ Who provides security? ☐ Is a general contractor working on site? ☐ Is there an anchor tenant whose lease allocates common areas?

☐ Duty runs with possession and control, not with title. The lease and the vendor contracts sort out indemnity later; your job is to reach the entity that could have prevented the harm.

☐ Was this a work injury? Then workers compensation applies against the employer, exclusive remedy bars a tort claim against them — but not against a third-party property owner. See Filing and Pursuing a Workers Compensation Claim: A Practical Checklist.

Phase 5 — Deadlines

☐ Ordinary personal injury limitation for your state: ______ Due: ______ ☐ Calendared in three places

☐ ⚠ GOVERNMENT NOTICE OF CLAIM. If the property is public — sidewalk, school, park, transit, public hospital, municipal building:

  • ☐ As short as 60 or 90 days, in a specified form, to a specified office
  • ☐ Missing it bars the claim entirely
  • ☐ Federal claims: administrative presentment to the agency under 28 U.S.C. § 2675, with the waiver of immunity at 28 U.S.C. § 1346, liability measured like a private person's under 28 U.S.C. § 2674, and the exceptions — including discretionary function — at 28 U.S.C. § 2680
  • ☐ Due: ______

☐ Statute of repose for construction or design defects — runs from substantial completion, not from injury. Due: ______

☐ Contractual limitation in a lease, membership agreement, ticket, or waiver: ______

☐ Read the waiver, if there is one. Enforceability varies enormously: many states enforce for ordinary negligence, most refuse for gross negligence, several refuse against minors, and a few refuse entirely. Read it before concluding there is no case, and again before concluding there is one.

☐ General doctrine: Statutes of Limitations and Repose: A Comprehensive Guide to Accrual, Tolling, and Revival and Calculating and Preserving a Limitations Deadline: A Practical Checklist.

Phase 6 — Discovery

☐ From the defendant:

  • ☐ All video, all cameras, the full window — never accept the extracted clip
  • ☐ Incident report and all drafts
  • ☐ Witness statements and defendant-taken photographs
  • ☐ Sweep, inspection, and maintenance logs, plus the policy setting the interval
  • ☐ Prior incident reports for this location and hazard type — the most valuable single category
  • ☐ Internal policies and training materials
  • ☐ Employee schedules and time records for the shift
  • ☐ Vendor contracts
  • ☐ Insurance information and premises claims history

☐ From third parties:

  • ☐ Weather records — free, archived, decisive in outdoor cases
  • ☐ Police call history for the address, by public records request
  • ☐ Building department permits, inspections, violations
  • ☐ Health department inspections, for food premises
  • ☐ Elevator and escalator inspection certificates, which are public
  • ☐ Animal control records, for dog cases
  • ☐ The 911 recording

☐ Depositions: the manager; the employee who created or should have found the condition; the person who preserved the video; the corporate designee on inspection policy, prior incidents, and retention; and any vendor representative.

☐ Evidentiary framework: relevance at Federal Rules of Evidence § 401; business records at Federal Rules of Evidence § 803; expert reliability at Federal Rules of Evidence § 702; subsequent remedial measures generally inadmissible to prove negligence but admissible for control and feasibility, Federal Rules of Evidence § 407.

Phase 7 — Experts

☐ Human factors or safety engineer — coefficient of friction, walkway surfaces, warning adequacy, visibility ☐ Code or architectural expert — stair geometry, handrails, guardrails, egress ☐ Lighting expert — foot-candles against code and industry standards ☐ Security consultant — negligent security standards for that property type ☐ Meteorologist — snow and ice accumulation timeline ☐ Treating physician — causation and permanence; retained physician where causation is contested ☐ Life care planner and economist — permanent injury ☐ Vocational expert — impaired earning capacity

☐ ⚠ Coefficient-of-friction testing must be done on the actual surface, in the actual condition, before it is replaced. Include the physical condition in the preservation demand.

☐ Measure and photograph a stair before repair. Riser height, tread depth, uniformity, handrail height and continuity.

☐ Return at the same hour to document lighting.

☐ Applicable standards: accessibility at 42 U.S.C. § 12182, definitions at 42 U.S.C. § 12181, enforcement at 42 U.S.C. § 12188, standards at 28 CFR Part 36; workplace safety at 29 CFR Part 1910 and 29 U.S.C. § 654.

Phase 8 — Dog bites and negligent security

8A — Dog bite

☐ Medical treatment first, then: ☐ Photograph the wounds before treatment, and again weekly during healing ☐ Identify the owner and the animal — name, address, breed, description ☐ Report to animal control the same day. This creates the record on which a future case depends ☐ Obtain the rabies vaccination record ☐ Request animal control history for the animal and the address — prior complaints, quarantines, citations ☐ Witness information ☐ Determine the regime — strict liability by statute in most states; the "one bite" scienter rule in the rest ☐ Check the landlord, where the animal was on rented property and the landlord knew and could have required removal ☐ Identify the policy — homeowners or renters liability, and check for breed exclusions ☐ Damages skew toward children and facial injuries — document scarring with professional photographs over time

8B — Negligent security

☐ Request the police call history for the address, three to five years, by public records request. This is frequently the entire case. ☐ Demand the owner's own incident reports ☐ Find prior complaints about lighting, locks, gates, or loitering ☐ Document the security that existed — cameras working or decorative, lighting measured, gates functioning, guards actually posted ☐ Find any promise of security in a lease or advertisement, which can create a duty ☐ Retain a security expert on standards for that property type ☐ Anticipate the superseding-cause defense — the answer is always foreseeability

Phase 9 — Damages and settlement

☐ Assemble: medical records and bills; wage loss documentation; out-of-pocket costs; mileage; and a written account of functional limitations, kept over time.

☐ Identify every lien early — health plan, Medicare, Medicaid, providers, letters of protection. Negotiate them before, not after, agreeing on a number.

☐ Run the comparative fault analysis honestly:

  • ☐ Pure comparative — recovery reduced by the percentage
  • ☐ Modified, 50 or 51 percent bar — a 60/40 case is not a discount. It is a coin flip on total defeat
  • ☐ Contributory negligence in a few jurisdictions — any fault bars recovery

☐ Understand what drives value: notice evidence, comparative fault, objective medical findings and surgery, documented wage loss, coverage, and venue.

☐ Understand what does not: how much it hurt, how rude the manager was, and how dangerous the condition looks in hindsight.

☐ Have the gross-versus-net conversation at the first meeting.

☐ Check for medical payments coverage in the premises or homeowners policy — a small no-fault benefit that is available immediately and routinely never claimed.

☐ See Preparing for and Attending a Mediation: A Practical Checklist.

Phase 10 — The property owner's response

☐ Aid first, always. ☐ Photograph the condition BEFORE cleaning it. Defendants who do this win cases; defendants who clean first lose them, because the plaintiff's description becomes the only description. ☐ Take witness names, including the customer's. ☐ Write the report factually. No characterization, no speculation, and do not record "customer states she is fine" as though it were a medical opinion. ☐ Preserve a wide video window immediately — an hour before and after, all cameras. ☐ Do not ask for a release at the scene. ☐ Issue a litigation hold on notice of a claim. ☐ Review the inspection log — was it followed on the day? ☐ Notify the insurer and any indemnifying vendor, and collect certificates of insurance. ☐ Fix the condition. A pattern of prior incidents at the same location is the most damaging evidence in this field, and it is entirely self-created.

The deadline table

Deadline Typical window Runs from Consequence
Video overwrite 3–30 days The incident The notice evidence disappears
Preservation letter Days The incident Spoliation inference lost
Government notice of claim 60–90 days The incident The claim is barred
Federal administrative presentment 2 years — 28 U.S.C. § 2675 Accrual The claim
Personal injury limitation 1–6 years by state Accrual The claim
Statute of repose Varies Substantial completion Claims against builders and designers
Contractual limitation As written As written The claim
Medical payments claim Policy terms The incident A small immediate benefit

Who does what

The injured person, in ninety seconds. Photograph the condition. Nothing else in this checklist substitutes for it.

The injured person, in twenty-four hours. Medical care with a precise mechanism, and a written account.

Counsel, within days. The preservation letter and the entity identification. Both take an hour and determine whether there is a case.

Counsel, within weeks. The deadline analysis, including the government notice of claim that nobody thinks about.

Experts, on the physical condition — before it is repaired or replaced.

The property owner. Photograph before cleaning, preserve a wide video window, write a factual report, and fix the condition.

Failure modes, ranked

  1. No photograph of the condition before cleanup.
  2. No preservation letter within days — and the video is overwritten.
  3. Missing a government notice of claim deadline.
  4. Signing an incident report written in the defendant's words.
  5. Saying "I'm fine."
  6. A gap between the incident and the first treatment.
  7. Not identifying every entity with control.
  8. Not requesting prior incident reports for the same location.
  9. Pleading only constructive notice when negligent creation was available.
  10. Undervaluing comparative fault in a modified jurisdiction.
  11. Letting the physical condition be repaired before testing.
  12. For owners: cleaning before photographing.
  13. For owners: preserving two minutes of video.
  14. For owners: an inspection log nobody follows.
  15. For owners: repeating the same hazard at the same location.

Items 1, 4, and 5 all happen within five minutes of hitting the floor.

Model communications

Requesting the incident report and video, before counsel is retained

"On [date] at approximately [time] I was injured at your [location] in [precise location]. An incident report was completed by [manager name].

I am requesting: (1) a copy of the incident report; (2) preservation of all surveillance video from all cameras covering that area, from two hours before to one hour after the incident; and (3) the name of your insurer and any claim number assigned.

Please confirm in writing that the video has been preserved. I understand that your system may overwrite recordings and I am asking you to prevent that from occurring."

Send this the next day, even before consulting a lawyer. It costs nothing and it starts the preservation obligation.

Public records request for police call history

"Under [state public records act], I request records of all calls for service, incident reports, and offense reports for the address [full address, including any suite or building number] for the period [three to five years] to the present.

If the volume is large, please begin with a call-for-service log listing date, time, and offense classification, and I will narrow from there. I request a fee waiver / I agree to fees up to $______."

This single request frequently is the negligent security case.

Weather records request, for snow and ice cases

"I request certified climatological records for [nearest official station] for [dates], including hourly temperature, precipitation type and amount, and snow depth."

Free, archived, and decisive. The question is never whether it snowed; it is when it stopped, when it thawed, and when it refroze.

Notice of claim to a public entity

"Notice is given under [state tort claims act] of a claim by [name], residing at [address], for injuries sustained on [date] at approximately [time] at [precise location], which is owned, controlled, or maintained by [entity].

The incident occurred when [brief factual description]. The condition was [description]. Injuries include [list]. Damages to date are approximately $______ and are continuing.

This notice is submitted within the period required by [statute]."

☐ Confirm the correct office, the correct form, and the correct deadline before sending. These three details defeat more claims than any substantive defense.

The evidence hierarchy

Ranked by how much each item actually moves a premises case. Spend effort in this order.

Rank Evidence Why
1 Video showing creation or duration Ends the notice fight
2 Photograph of the condition before cleanup Duration indicators; unavailable later at any price
3 Prior incident reports, same location Pattern, and actual notice
4 Sweep logs contradicted by time records The defendant's own standard, unmet
5 Employee testimony about creation Converts the case to negligent creation
6 Neutral customer witnesses Credibility
7 Weather records Decisive in outdoor cases
8 Police call history Decisive in negligent security
9 Code measurements and lighting readings Objective, and expert-supported
10 Internal policies and training materials The standard the defendant set for itself
11 Animal control history Decisive in dog cases
12 The plaintiff's own testimony Necessary, and rarely sufficient alone

Note what is at the bottom. A plaintiff who can testify only that the floor was wet, with no duration evidence and no creation theory, loses on summary judgment. That is why the first ninety seconds outrank everything a lawyer does afterward.

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