Sample Demand Letter - Slip and Fall in a Store

Michael Roberts

1313 Mockingbird Lane

New Rochelle, NY 00000

February 1, 20xx

Mr. Harry Wilde

Wilde Insurance

12 Main St.

New Rochelle, NY 00000

Re: Your insured: New Rochelle Automotive

Claimant: Michael Roberts

Date of injury: July 15, 20xx

Your file number: 9449445B (Be sure to use the insurer's file number on all correspondence with the adjuster.)

Dear Mr. Wilde:

As I explained in my claim notice letter dated August 11, 20xx, I was injured when I slipped and fell at the auto parts store owned by your insured, New Rochelle Automotive. This letter is my pre-filing settlement demand.

Facts

I was at New Rochelle Automotive with my four-year-old son, Eddie, shopping for replacement brake pads for the family car. (Robert explains that he was at the store for a business purpose, which might put increased legal responsibility on the store owner.) While carrying four boxes of brake pads to the checkout counter, I slipped and fell on what was clearly some kind of oily substance in the aisle. I stepped on the oily substance with my left foot. My foot shot out from under me very quickly and before I could react, launching me into the air. I fell with all of my weight, and the weight of four boxes of brake pads, on my rear end. (Describe in as much detail as you can how you slipped and fell. Be sure to include facts showing the force with which you fell and hit the ground.)

I felt a sharp, searing pain in my lower back as soon as I hit the floor, and I recall being a bit stunned or dazed by the force of my fall. But I got up right away because I did not want Eddie to be frightened. As might be expected from a four-year-old, Eddie found the whole thing quite amusing, exclaiming "Daddy you fell!"

I did not see the oily substance before I slipped on it. (In a premises liability case, it's common for a jury to find that the injured party was partially at fault. Here's the dilemma. If you claim not to have seen the dangerous condition that caused you to fall, the adjuster will argue that had you been watching where you were going more carefully, you would have avoided the dangerous condition. On the other hand, if you admit to seeing the dangerous condition before falling, the adjuster will argue that you're at fault for failing to take steps to avoid it. Your goal, in a slip-and-fall case, is to explain away as much of your responsibility as possible. What follows is Robert's attempt to do that.) I was focused on carrying the weight of four boxes of brake pads, and trying to keep an eye on my four-year-old son. I'm only glad that Eddie did not fall and hurt himself on it. (Your best bet is to try to argue that you did not see the dangerous condition because you were prevented from seeing it—something blocked your view, or you were distracted by circumstances beyond your control. But the odds are that you'll still be found partially to blame. If you find yourself in a situation like this you should consider hiring an experienced personal injury lawyer. Comparative or contributory fault issues can significantly reduce the value of your claim, or destroy your claim entirely.)

Once I got back to my feet, I carefully looked at the floor and my left sneaker. I also touched the floor and my sneaker. The substance looked, felt, and smelled like motor oil. I have been changing my own oil for 20 years and I know what motor oil looks and feels like. I am certain that the substance on the floor was motor oil.

It looked as if there were shoe prints leading in both directions from the oil, meaning that other customers must have walked through it, too. I do not know if there was any security or surveillance camera in the store, and I'm not aware of any witnesses to my fall other than Eddie. If I must file a lawsuit, I'll ask about witnesses and recordings in discovery. (This part of your slip-and-fall demand letter is critical because it details facts showing the store owner was negligent. These facts help you to prove two important negligence elements. First, you must show that the store owner knew or should have known about the dangerous condition that caused you to fall. This means that the store owner should have expected to find this dangerous condition, or something like it, in the store. In an auto parts store, it wouldn't be unusual to find motor oil or similar substances on the floor. Second, you must also show that the store owner had enough time to correct the dangerous condition. Robert's claim that he saw footprints tracking the oil in both directions suggests that the oil had been there for some time, making it more likely that the store should have discovered and fixed this dangerous condition. Robert will argue that these facts show the store owner was negligent, below.)

When I got to the checkout counter, I mentioned my fall to the clerk, whose name tag said "Jason." He did not seem surprised by this news, and he did not offer to report it to the manager. I did not ask him to report it because I figured that I would be OK, and I had my son with me. It turned out that I was not OK. (The adjuster will argue that if Robert had actually fallen and been hurt, he would have insisted on reporting it right away. Robert explains why he didn't.)

After I found out that I'd been seriously injured, I went back to New Rochelle Automotive and asked to see the manager. I told the manager, Curtis Stevens, that I had fallen two weeks earlier and that I wanted to make a claim. Mr. Stevens was not friendly. He denied that I had fallen, and denied that anyone named "Jason" ever worked at the store. After accusing me of making the whole thing up, Mr. Stevens said there was nothing he could do and that I should write a letter to the store if I wanted to bring an insurance claim. I later wrote the claim notice letter that the store passed on to you.

My Injuries and Medical Treatment

After a week of nagging back pain, I went to see my primary care physician, Dr. Sharon Walsh. Dr. Walsh sent me for x-rays and then an MRI, and diagnosed a bulging disc at L5-S1 with mild impingement on a nerve in my spine. Before this fall, I had never had any kind of back injury or back pain. (Robert describes his injury in detail, and he explains that he's never had any kind of preexisting back condition or back problems. This helps to prove that his injuries, and all of his damages, are the responsibility of the store.) Dr. Walsh sent me for a month of physical therapy.

After I finished physical therapy my back was still sore, so I went to a chiropractor, Dr. Peter Bates. Dr. Bates treated me twice a week for the first three weeks. After that, I saw him twice a month until November 17, 20xx. Dr. Bates's treatments did help with the pain and stiffness in my lower back, but the discomfort still returns from time to time. (Robert explains that the pain has diminished but isn't completely gone.)

According to both Dr. Walsh and Dr. Bates, my back is probably as good as it will get. Both have also told me that my back is not healed, because the disc is still bulging. It could flare up at any time, according to them. If that happens, the only thing I can do is try more therapy or chiropractic care. Both of them have also told me that my back is likely to get worse with age. (Robert raises the prospect of future problems and future medical treatment. The adjuster will not want to be on the hook for future medical expenses, so disclosing this information might encourage the adjuster to settle.)

Shortly after I fell, Dr. Walsh prescribed an anti-inflammatory medication to help relieve the pain. I took the medicine as prescribed for a few days but found that it made me feel groggy. I work as a lumber store manager where heavy machinery and large stacks of lumber are constantly moving in every direction. I was worried that someone might get hurt because of the effects of the prescribed medicine. I couldn't afford to take time off for my injury so I just worked through the pain. After a few days, I stopped taking the prescription anti-inflammatory and just used over-the-counter Tylenol.

In a typical workday, I sit at a desk part of the day and I spend a few hours in the yard. Sometimes I have to carry around heavy lumber or tools. I asked my workers for help carrying heavy items for several weeks. I was embarrassed by my inability to do my fair share.

I was also limited in what I could do at home. I couldn't get down on the floor and play with my children for a few weeks. I felt bad because the kids are too young to understand that I was hurt. I had to hire a neighbor kid to mow the lawn and do other yard work. Several projects around the house were left undone. (In these paragraphs, Robert explains his pain and discomfort, and the limitations he experienced as a result of his injury. Be sure to describe your pain and suffering, emotional distress, and loss of enjoyment of life in detail. These are damages for which you can seek compensation.)

New Rochelle Automotive's Responsibility

New Rochelle Automotive's negligence is clear. Spills of motor oil, automotive fluids, and other substances must be common occurrences in an auto parts store. That there were footprints in both directions from the motor oil is proof that this spill had been there for some time. As you know, your insured has a legal obligation to inspect the store—which isn't very large—to find and fix dangerous conditions like this one. When I reported my fall to "Jason," he acted as if this kind of event was a regular occurrence. A jury will have no difficulty finding New Rochelle Automotive at fault.

My Economic Damages

I have attached copies of all my medical records and medical bills. Here is a summary of my medical expenses to date:

My economic damages to date are $9,050. For ease of discussion, I'm rounding this amount down to $9,000.

My Noneconomic Damages

Your insured was clearly at fault for my fall and the resulting serious and permanent injury. The facts indicate that New Rochelle Automotive simply doesn't take seriously its legal responsibility to keep its business premises safe for customers. Even worse, New Rochelle Automotive appears completely indifferent to customers who are injured because of its negligence.

I continue to live with the effects of my injury—back pain and stiffness, and the emotional distress caused by the likelihood that my injury will get worse with age—every single day. Under these circumstances, I believe a jury would not hesitate to award me three times my medical expenses to compensate me for my pain and suffering, emotional distress, and loss of enjoyment of life.

My noneconomic damages total $27,000, bringing my total damages to $36,000. (This figure is probably high. As discussed above, if Robert is found partially responsible for his slip and fall, which seems likely, his damages will be reduced by his share of the fault. As a negotiating tactic, though, Robert is right to start with a settlement figure which is higher than what he's actually willing to accept.)

Settlement Demand

I demand $36,000 to settle my claims against your insured. Of course, if we are unable to settle and I'm forced to take my case to court, I will ask a jury to award substantially more. (If you're finding it difficult to decide how much to ask for in your demand, see How Much Should You Ask For in Your Demand Letter?)

This demand is an attempt to settle my claims against your insured. If I must file suit and the case goes to trial, evidence of this settlement offer will not be admissible at trial.

Please let me hear from you within 30 days from the date of this letter.

Very truly yours,

[signature]

Michael Roberts