If you were hurt in a fall on someone else's property and you're thinking about making an insurance claim, you've got to answer two important questions. First, do I have a slip and fall claim? And second, if I do have a claim, how much is it worth?
In this article, we're going to assume that the answer to the first question is yes, you do have a claim. Our focus here is on the value of your claim. To get a ballpark estimate of how much your claim is worth, you'll need to consider these factors:
Several of the factors that have the biggest impact on the value of your claim—your injuries, medical treatment, and damages—are closely related. Your injuries dictate the medical treatment you receive, your medical treatment drives your medical bills, and your damages are calculated, in part, based on your medical bills.
You'll also need to consider your own fault and what impact that will have on the value of your claim before you start to write a settlement demand letter to the property owner's insurance company.
The single most important factor driving the value of your claim is your injuries. If your injuries are serious and their effects will be permanent, your claim is worth more than if your injuries are minor and you quickly recovered. Lawyers and insurance adjusters often divide injuries into two groups:
We've all suffered these at one time or another—a cut or bruise, or a broken bone or torn ligament. Everyone knows that these injuries are painful, can be disabling, and need medical care and plenty of time to heal. Here are the categories of hard injuries:
These are physical injuries that usually can't be seen, including things like muscle sprains and tendon strains. Because they can't be seen, they're more difficult to describe and for others (who haven't experienced them) to understand. Like hard injuries, soft tissue injuries are painful and can be disabling. They might also require medical care and they take time to heal.
It will come as no surprise that hard injuries typically are valued higher than soft tissue injuries. Insurance adjusters sometimes view soft tissue injuries as nuisance cases having little real value. Hard injuries, by contrast, have greater value for at least two reasons. First, hard injuries are more likely to require invasive and extensive medical treatment. As a result, the medical bills associated with hard injuries are usually higher than those from soft tissue injuries. Second, they're easy for judges and juries to understand and relate to.
If you have only soft tissue injuries, then you'll have more work to do when you write a settlement demand letter to the property owner's insurance company. Be sure you describe in detail how you were hurt, the physical and emotional pain your injuries caused, and the medical treatment you received. Remember that your fall was caused by someone else's negligence. Your soft tissue injuries are real and you deserve to be fairly compensated for them.
Permanent injuries, including permanent disability or disfigurement, will significantly impact the value of your claim. Suppose, for example, you break your ankle in a fall. Your doctor does surgery to repair the fracture and after several months of physical therapy, tells you that you've got arthritis in the ankle which is permanent and will get worse with age. You now must deal with a lifetime of pain and disability. A lifelong injury will have more value than one that heals completely after a few weeks or months.
Finally, you're also entitled to compensation for injuries like pain and suffering, emotional distress, and loss of enjoyment of life. These can be hard to value. As we'll see below, most often the value of these damages is driven by your medical expenses.
The kind of medical treatment you get for your injuries is likely to impact the value of your claim. As discussed above, hard injuries tend to require more extensive, and often more invasive, medical treatments. Fractures, ligament tears, and other internal injuries might need surgery to repair, and casting or splinting for immobilization. Open wounds like cuts or gashes must be closed with stitches. Everyone knows that these treatments cost money, are painful, and require plenty of time to heal.
By contrast, insurance adjusters are likely to be more skeptical of things like chiropractic care, acupuncture, massage therapists, or other non-physician practitioners. Your focus, of course, must be on getting the care you think best suits your needs. Simply be aware that insurers will not value these nontraditional treatments as highly as they do more "conventional" care.
Injuries are the physical and emotional harms you suffer because of your fall. "Damages" is a legal term used to describe the value of your injuries and other compensation you might receive for accident-related losses.
In a typical slip and fall case, damages fall into two categories. Economic (sometimes called "special") damages include things you can easily value in dollars, like medical bills, lost wages and loss of earning capacity, and other out-of-pocket expenses. Noneconomic (sometimes called "general") damages are more difficult to value. Pain and suffering, emotional distress, disability and disfigurement, and loss of enjoyment of life are examples.
Let's look at these categories of damages more closely.
Medical expenses almost certainly will be the largest of your economic damages. Examples of medical expenses include:
You might also have bills for skilled nursing or other in-home care, or for medical transportation charges if you couldn't take yourself to medical appointments. When you calculate economic damages, total your medical expenses separately from all your other out-of-pocket costs.
If you were away from work for some time because of your injuries, get proof of your lost income. You'll need to document your lost wages and any paid time off you used to cover your time away. Get a letter from your employer's human relations office to prove these amounts. If you're self-employed, be prepared with proof of both lost income and lost business opportunities—work you lost out on because you couldn't meet with prospective customers or bid on jobs.
What if your injuries are so severe that you're unable to return to work in the future, temporarily or permanently? Or suppose that you can go back to work, but you're not able to keep doing the kind of work you did before? In that event, you're going to need expert testimony to calculate your lost future earning capacity.
If you're seeking damages for loss of earning capacity, you should seriously consider hiring an experienced personal injury attorney to handle your case. Working with expert witnesses isn't something you want to do on your own. Hiring a lawyer will give you the best shot at getting the full value of your claim.
You're entitled to compensation for any other out-of-pocket expenses you paid because of your injuries. Perhaps you couldn't take care of your lawn and had to pay a neighbor kid to do it for you. Or you couldn't take care of routine home repair chores and had to hire a maintenance person. Maybe you had a trip planned and had prepaid for nonrefundable airline tickets. All of these incidental expenses are damages for which you should seek reimbursement.
You're entitled to fair compensation for your pain and suffering, emotional distress, and similar injuries. But first, you've got to put a value on them. How do you measure pain and suffering? Or value your emotional distress? There's no one "correct" way.
Most insurance adjusters and lawyers use a formula, multiplying your total medical expenses by a factor (called a "multiplier") of between 1 and 5 to arrive at a value for noneconomic damages. Here's an example. Suppose your medical bills total $9,000. In a typical slip and fall case, you might begin settlement negotiations by using a multiplier of 3, meaning you'd value your pain and suffering, emotional distress, and other noneconomic damages at $27,000.
Once you've calculated your noneconomic damages, simply add your total economic and noneconomic damages together. The sum of the two is your total damages. But you're not quite ready to make a settlement demand to the property owner's insurance company.
In a slip and fall case, the answer to this question is probably yes. Why? Here's the question the insurance adjuster (or the insurance company's lawyer) will ask: "Did you see the dangerous condition before you slipped or tripped on it?" There really are only three possible answers to this question:
This answer is an admission that you weren't watching where you were going before you fell. Had you been paying attention, the argument goes, you would have seen the dangerous condition and could have taken some action to avoid it. You're partly at fault for not paying attention.
This answer is an admission that you saw the dangerous condition but failed to do anything to avoid it. Be prepared for the follow-up question—"Why didn't you do anything to avoid it?" There's no good answer to that question. You're partly at fault for failing to avoid the dangerous condition that you saw before you fell.
This might seem like a clever answer but in reality, you risk losing credibility and you're just inviting more unpleasant questions that won't end well for you. For instance, an adjuster or lawyer might ask you: "Would you agree with me that if you had seen the dangerous condition before you fell on it, you would have taken steps to avoid it? And so, because you did fall, can we agree that you must not have seen it?"
To make a long story short, you're almost certainly going to be found partly at fault for your fall. In a few states, if you're even the slightest bit at fault, it kills your slip and fall claim entirely. In most states, your share of the fault reduces the value of your claim by that amount.
For instance, let's say that your total damages are $20,000. If the property owner is 100% at fault, the value of your claim is $20,000. But if you're 30% at fault, you must reduce your damages by your share of the fault—$6,000—to arrive at the correct value of your claim, which is $14,000.
Learn more about what happens if both sides are at fault in a personal injury case.
When valuing your claim, you need to be realistic about your share of the fault. But don't start settlement negotiations with the insurance company by admitting that you were partly to blame for what happened. Your fault is a defense that's up to the insurance company to raise. If (or more likely, when) the insurance adjuster raises it, you can negotiate over it.
If you live in a state where your fault can destroy your claim entirely, or if you're concerned about losing significant value because of your share of the blame, consider hiring an experienced personal injury attorney to handle settlement negotiations.
This is a difficult question to answer. In the end, only you can make that decision. It may help, though, to start by considering the "net value" of your claim.
The net value is equal to the value of your claim minus the cost of your claim. So: Value of claim - cost of claim = net value of claim.
Our discussion above should help you arrive at the value of your claim. Let's run through a quick example. Suppose your medical bills are $8,000 and your lost wages are $1,000, for total economic damages of $9,000.
You're valuing your pain and suffering and emotional distress at three times your medical expenses, or $24,000 ($8,000 x 3).
Your total damages are $9,000 + $24,000, or $33,000. But let's assume that you're one-third (33%) at fault for the accident. You need to reduce the value of your claim by $11,000, meaning your claim has a value of $22,000.
How much will it cost you to realize that value? In other words, how much will you have to spend to get the insurance company to write you a check for that amount? If you're handling the claim on your own, probably not much. Let's say you spend $100 for copies of medical records and bills. Maybe you hire a private investigator to track down witnesses and take photos of the property where you fell. The investigator charges you $1,000.
You'll spend a considerable amount of time gathering and organizing materials, writing your demand letter, and negotiating with the adjuster. Your time has value; for purposes of our discussion, let's say it's worth $30 an hour. If you spend a total of 30 hours to get to a settlement, that means your time is worth $900. Your total investment, then, is $100 (copies) + $1,000 (investigator) + $900 (your time) = $2,000.
If you can settle for $22,000, then the net value of your claim is $20,000.
If your case doesn't settle and you decide to file a lawsuit, the equation changes a great deal. For starters, your costs will begin going up quickly. But the value of your case might go up too. If the insurance company is convinced that you're willing to take your case all the way to a trial, its costs go way up, just like yours do. This means that the insurance company might be willing to pay more to make the case go away after you file a lawsuit.
You also need to think about hiring an experienced lawyer to handle your case from this point forward. Filing a lawsuit is no simple task. There are complex rules of procedure and evidence that you'll be expected to understand and follow. You're at a real disadvantage if you try to go it alone. The insurance company will be represented by experienced lawyers who know their way around a case like yours—they've worked on hundreds of them.
If you hire a lawyer, you'll end up paying the lawyer between 25% and 33% of any settlement or jury verdict you get, after subtracting out whatever case expenses the lawyer has advanced. Let's take another example.
Suppose that, with a lawsuit filed and a lawyer representing you, the same case discussed above settles for $45,000. The lawyer has spent $6,000 on case expenses and you've agreed to pay a 33% attorney's fee. Keep in mind, too, that you spent $2,000 before you filed a lawsuit. The net value of your case is $45,000 - $6,000 - $13,000 ($39,000 x 33%) - $2,000 = $24,000.
In this example, hiring a lawyer and filing a lawsuit has increased the net value of your case by just $4,000. That said, the equation looks much different if your lawyer is able to settle the case for $100,000 instead of $45,000. If you're thinking about hiring a lawyer, you'll want to have some frank, candid discussions about the costs and benefits of pursuing a lawsuit. You're likely to come out dollars ahead, but how much will depend on the facts of your case.
Up to this point, we've talked only about dollars and cents. But there are other things you should consider too. Specifically, think about the emotional cost of pursuing your slip and fall claim. You're headed into unfamiliar territory here, in all likelihood. You'll end up negotiating with an experienced insurance adjuster or lawyer, which can be anxiety-provoking and intimidating.
Things might get easier if you hire a lawyer to do most of the work, but it will still be a stressful experience. This is especially true if you end up filing a lawsuit. At some point, you'll have to sit through a "deposition," where the insurance company lawyer will get to ask you questions while you're under oath. If the case doesn't settle and ends up in a trial, you'll need to testify in court. The entire experience can be an emotional roller coaster.
You must decide for yourself whether it's worth it to pursue your case. Maybe you just want to write a demand letter, settle for as much as you can get, and put it behind you. That's fine. If you're more adventurous and can handle lots of stress and anxiety, you might decide that filing suit and going to court are worth it.
Putting a value on a slip and fall claim isn't an exact science. We've covered the factors you need to consider, and we've given you some simple equations you can use to approximate a value for your case. But there's more to it than factors and equations.
Don't feel like you need to make this decision alone. Consult with someone who's been there—an experienced personal injury lawyer. You can use the tools on this page to find a lawyer in your area.