As you prepare to settle your slip and fall claim, follow these six tips to get the best result you can.
Slip and fall cases are the subject of many popular misconceptions. "If you fall in a store, it's an easy case to win." Not so. Lots of businesses and their insurance companies fight slip and fall cases tooth and nail. The fact that you fall and are hurt on someone else's property doesn't mean the property owner is legally responsible.
"Slip and fall cases are easy to settle." While it's true that most personal injury cases—including slip and falls—settle without a trial, slip and fall claims can be among the most difficult to settle for a fair amount.
Slip and fall cases often involve several thorny issues that you'll need to get a handle on before you try to settle. We'll walk you through some of those issues, giving you six tips to get the best slip and fall settlement you can.
Overview of the Issues
To get the best settlement for your slip and fall claim, you'll need proof of these elements:
- Liability. To prove that the property owner is legally responsible for your injuries, you must show that the owner knew about the dangerous condition that caused your fall. You'll also have to show that your own carelessness didn't cause you to fall.
- Your injury. The nature and extent of your injury is the engine that drives the value of your slip and fall case. Proving injury can be a challenge, especially if it's soft tissue damage.
- Causation. You need to prove that your injuries were caused by your fall, not by some preexisting condition.
Tip 1: The Property Owner Knew of the Danger
Contrary to popular belief, proving that a property owner is liable—legally responsible for your fall—is rarely a simple matter. For starters, you must show that you fell because of a dangerous condition on the property. Maybe some liquid leaked from product cans on a shelf onto the floor. Or a broken floor tile created a trip hazard. Typically, it's not hard to prove that a dangerous condition was present.
But it's not enough to prove that there was a danger. You also need to show that the property owner:
- knew of the condition (or that it was there long enough that the owner should have known of it), and
- had a reasonable opportunity to fix or warn about it before you were hurt.
Proving that the property owner had notice of the danger can be a challenge. Here are three ways to get the proof you need.
Statements from others who saw the danger. If someone other than you saw the hazardous condition and knows how long it existed, that person can establish that the property owner was on notice of the danger. Get written or recorded statements from these witnesses.
Surveillance video. It's increasingly common for businesses to have surveillance video of their property. If you fall outside, look for surveillance cameras on nearby properties, too. The video may show how long a dangerous condition was there before you fell.
If you think there might be surveillance video of your fall, request it immediately. Surveillance cameras often record on a continuous loop. If you don't request the video before it loops, your fall will be recorded over—and lost forever.
Information regarding prior falls. Businesses and their insurance companies keep records of falls (and other incidents) on the property. These records often take the form of written or electronic documents called "incident reports."
Ask for information about falls (or similar incidents) that preceded yours. The insurance company will object to giving you copies of the incident reports, which might be protected from disclosure. But the fact that others fell or were injured in the same place you were isn't protected. If they don't want to share incident reports, ask for the data from those reports.
Tip 2: Your Own Carelessness Wasn't to Blame
In nearly every slip and fall claim, the property owner will argue that you were also negligent (careless) and that your "comparative negligence" should reduce or eliminate the amount you can collect for your injuries. This legal defense often gains traction in slip and fall cases, so you should understand how it works and what you can do to avoid it.
At some point after you fall, expect the insurance adjuster to ask you a question like this: "Did you see [whatever caused your fall] before you fell?" There are three answers to this question, and none of them help your claim.
"No, I didn't see it." This is an admission that you weren't watching where you were going before you fell. The response is obvious: Had you been paying attention, you would have seen the danger and could have avoided it.
"Yes, I did see it." This answer admits that you saw the danger but took no action to avoid it. You should be ready to explain why, but there's really no good explanation. You're probably going to end up with some of the blame for your fall.
"I don't remember whether I saw it or not." This might seem like a clever response, but chances are you're just prolonging the misery. Expect follow-up questions such as "Can we agree that if you had seen it, you would have taken steps to avoid it? Because you fell, is it reasonable to conclude that you never saw it?"
Your goal should be to deflect as much of the blame back to the property owner as you can. Suppose, for example, that your fall happened in a store. As you walked through the store, your gaze was probably focused on the shelves where the products were located. You weren't looking down at the floor or paying much attention to your surroundings.
This, after all, is exactly what the store owner wanted you to do. The owner shouldn't be able to entice you to look at the shelves and then penalize you for doing so.
Tip 3: How to Prove Your Injuries
If your fall causes a broken bone or an open, bleeding wound, proving your injury won't be a problem. Often, though, your fall will leave you with soft tissue injuries—a sprain or a strain, or a back or neck injury that won't show up on an X-ray. How do you prove your injuries in that case?
Ask your doctor to document it. Make sure that your doctor documents your injury and the symptoms you experienced in your medical records. Those records are likely to be your best source of proof should the insurance company try to deny or minimize what happened.
When you're preparing to settle your claim, think about asking the doctor to write a letter explaining:
- the nature and extent of your injuries
- the pain and suffering, emotional distress, and other symptoms and limitations you've experienced, and
- the medical care and treatment you received.
Keep a journal. A journal or diary is one of the best ways to document your injuries and the problems they've caused. Beginning with the day you were hurt, record how the fall happened, all of your symptoms, the medical care you received, and limits on your daily activities such as time off work or an inability to do household chores.
Keep in mind that if your claim doesn't settle and you end up in a lawsuit, the other side is entitled to a copy of your journal if you rely on it during your case. Make sure to keep your entries factually accurate. Don't exaggerate or embellish your injuries.
Tip 4: Proving the "Causal Link"
In addition to proving your injuries, you must prove that the fall caused them. If you don't have a history of injuries to the same part of your body hurt in the fall, causation shouldn't be a problem. But what if, for example, the fall hurt your lower back, and you have a history of pre-existing back problems?
As with proof of your injury, you'll need to rely on your doctor to establish the causal link between the injury and your fall. Ask your doctor about it during a scheduled visit. Explain that you have a claim, and it would help to resolve the claim if the doctor wrote a letter describing what injuries are attributable to the fall.
Tip 5: Be Realistic, Don't Exaggerate, and Don't Get Greedy
There's an old saying in the personal injury business: "Pigs get fed. Hogs get slaughtered." If you try to exaggerate your injuries or get greedy and ask for far more than what your claim is worth, there's a good chance it will work against you.
Be realistic about the value of your claim. Barring truly catastrophic injuries, your slip and fall isn't worth millions. Coming to settlement negotiations with an outlandish demand simply exposes you as an amateur who's out of their league. The adjuster with whom you're negotiating has handled hundreds or thousands of claims like yours.
Similarly, there's no point trying to exaggerate your injuries or limitations. Your medical records should provide ample details about how you were hurt. When you go overboard with your symptoms or limitations, you simply lose credibility. The adjuster knows that kind of dog-and-pony show won't fly in front of a jury, and it won't help you in settlement talks, either.
Tip 6: Hire a Good Personal Injury Lawyer
Might you be able to resolve your slip and fall case on your own? Sure. If the facts are straightforward, your injuries are minor, and there aren't any tough legal issues (like comparative negligence) causing problems, you can try to go it alone.
Is it a good idea to be without a lawyer? No. For starters, the insurance adjuster isn't likely to take you or your claim as seriously as when you've got legal help on your side. Without representation, you're an easy mark for the insurance company. Adjusters know all the tricks in the book, and they won't hesitate to use them against you.
While it might take a bit longer to settle your case, having a lawyer probably means more money in your pocket when settlement negotiations are done. Do your research. Find out which lawyers specialize in slip and fall claims. As with other areas of the law, slip and fall claims have their own unique nuances. Make sure the lawyer you hire understands these nuances and how to navigate them.
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