In Florida, as in every state, the vast majority of slip and fall claims reach a settlement, with very few cases ever making it to trial. But how might a settlement play out in the real world? The following example should give you a pretty good idea.
After an exciting morning touring the Kennedy Space Center, Kenny stopped for lunch with his mom and aunt at the Gator Bites Café. At age 12, Kenny was fascinated by space exploration and had just downloaded to his tablet an app that provided more detail about the exhibits he saw at KSC. While his mom went to order some food, Kenny followed his aunt to a booth near the back of the café as he configured his new app.
As Kenny started to enter the booth on his right, his left foot slipped out from under him. He did not see the paper napkin on the floor and the fried piece of gator with sauce on it underneath the napkin. His mouth hit the corner of the table, knocking out a large piece of his left tooth, and his left elbow struck the concrete floor. So did his iPad.
X-rays at the ER showed a nondisplaced fracture of the ulna, which meant that the bone of the little finger side of the forearm broke completely, but the ends remained aligned. The ER physician referred Kenny to an orthopedist and sent him home with an ice pack and an elbow splint.
The orthopedist put Kenny’s elbow in a cast for six weeks and prescribed physical therapy afterwards to restore the elbow’s range of motion.
Kenny’s tooth broke diagonally, leaving about half the tooth intact. Kenny’s dentist decided the best treatment was to cap or crown the tooth.
To Kenny, his greatest loss was his beloved and fully-loaded iPad Air, which was “totaled,” as Kenny put it, when it shattered on the floor.
Kenny had four years in which to file a lawsuit for his injury and property damage under the Florida statute of limitations. (To understand the importance of this law in a case like Kenny’s, see How long do I have to file a slip and fall lawsuit in Florida?
Age, good health and good luck aided Kenny’s healing, and hisattorney sent a demand letter just three months after the accident claiming that Gator Bites was negligent in connection with Kenny's injuries and describing specifically how the accident occurred.
The letter asserted that Gator Bites management knew about the food on the floor under Kenny’s table because a manager had instructed an employee to clean it up at least an hour before the accident. The employee admitted he knew about the food on the floor and had neglected to clean it up promptly. His failure to clean the floor when instructed created the hazardous condition that caused Kenny’s injury. It was reasonably foreseeable that a guest like Kenny would slip on the sauced piece of fried gator, and be injured. (Learn more about Proving Fault for a Slip and Fall.)
The demand letter also spelled out Kenny’s damages stemming from his slip and fall accident, including the cost of his medical and dental care and the cost to replace the iPad Air.
Kenny’s total out-of-pocket compensatory damages amounted to $6,500. His attorney decided that another $16,250 was appropriate tocompensate Kenny for hispain and suffering. The total demand was $22,750.
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $10,000 to settle the matter. The insurance company asserted that, under the legal theory of comparative negligence in Florida, which would partially offset any liability on Gator Bites’ part, Kenny shared the fault for his own injuries by not watching where he was going and, instead, fixating on his iPad. (More: What if I am partly at fault for my slip and fall in Florida?)
Additionally, the insurance company argued that Kenny’s aunt was negligent as she walked ahead of him to the table because she knew that Kenny was engrossed in his iPad app, and yet she failed to warn her young nephew about the food on the floor.
After several phone conversations between the insurance company and Kenny’s attorney, the insurance company made a final offer of $14,500. Kenny and his mom discussed the offer with the attorney, considering the costs and attorney’s fees if a lawsuit were filed and the case went to trial, and the uncertainty of how a jury might decide the case. Kenny’s mom accepted the settlement offer on Kenny’s behalf.