In Massachusetts, as in every state, most slip and fall cases alleging a dangerous property condition reach a settlement, with very few claims ever going to trial. But what might a settlement look like? The following example illustrates how a slip and fall settlement might play out in Massachusetts.
Emma and Daniel walked back to their Salem hotel after leaving the Wizards and Witches Ball on Halloween night. Emma excitedly waved and pointed an elaborate and ornate “wizard’s wand” that she purchased earlier in the day, telling Daniel she was clearing their path of negative energies.
They came upon an old gothic house where a massive tree draped its branches above the sidewalk. Just as the pair walked under the tree’s canopy, Emma thrusted her wand upward and spoke a loud incantation. Motion sensors in the tree branches caused 20 rubber black bats with red-lit eyes to drop immediately on strings from tree limbs all around Emma and Daniel.
Emma screamed and jumped back, startled by a red-eyed bat that appeared suddenly less than a foot from her face. She didn’t notice the small jack-o’-lantern next to the sidewalk on the edge of the walkway leading to the front door of the house, where a reputed local witch lived. The heel of her shoe landed inside the jack-o’-lantern, its candle burning her heel, as the entire pumpkin slid out from under her. She landed on the stone walkway with a thud -- and a sharp pain in her rib cage. A woman from the house heard Emma scream, came out and called an ambulance.
Emma complained of pain in her ribs and difficulty breathing. X-rays confirmed two broken ribs and a collapsed right lung (pneumothorax) that had been punctured by one of the ribs. The ER doctor thought it prudent to remove the excess air from Emma’s thoracic cavity with a syringe, put her on oxygen and admit her to the hospital for a day or two.
Emma was discharged home with portable oxygen to speed the lung healing and re-expansion. She followed up with her primary care doctor.
Emma worked as a personal fitness trainer, aerobics instructor and yoga teacher. Her personal doctor advised her against returning to both her aerobic and yoga classes for at least six to eight weeks to allow her lung, as well as her burned foot, to fully heal.
Emma’s hand-carved and bejeweled wand, like her ribs, had broken in two places.
Emma had three years in which to file a lawsuit for her injury under the Massachusetts statute of limitations. (For details on this law, see How long do I have to file a slip and fall lawsuit in Massachusetts?)
Four months after her accident, her attorney sent a demand letter claiming that Lady Alexa Eastwick -- owner of the property where Emma was injured -- was legally responsible for Emma’s injuries, and describing specifically how the accident occurred.
The letter asserted that Eastwick knew or should have known about the dangerous condition of the property caused by the jack-o’-lantern and the rubber bats, given that:
The demand letter included an itemized list of Emma's losses stemming from her slip and fall accident, including:
Emma’s total out-of-pocket compensatory damages amounted to $2,500 for her medical expenses and $24,000 for the loss of her personal training, aerobics and yoga class income. The wand had cost Emma $185. Her attorney decided that another $6,500 was appropriate to compensate Emma for her pain, discomfort, fear, anxiety and other suffering. The total demand was $33,185.
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $15,000 to settle the matter. The insurance company asserted that Emma was a “trespasser” rather than an “invitee” at the time of the accident to whom Eastwick owed no duty of care. The jack-o’-lantern was on Eastwick’s property, and Emma had not been invited onto the property. (More: When is a Property Owner Liable for a Trespasser’s Injuries?)
Alternatively, even if Eastwick was liable, under the legal theory of comparative negligence, Emma shared some of the responsibility for her own injuries by not paying attention to the jack-o’-lantern, which was a “safety device to help light the way to Eastwick’s door.” (More: What if I am partly at fault for my Massachusetts slip and fall?)
In response, on the trespassing issue, Emma’s attorney asserted that Eastwick couldn’t have it both ways; the fact that she deliberately intended to light the path to her front door was a generally understood invitation onto her property, particularly on Halloween night. He also argued that “the notion that the jack-o’-lantern was intended as a ‘safety device’ is a complete sham, a deception, a typical magic ‘misdirection’ of a person’s attention.
After several phone conversations between the insurance company and Emma’s attorney, the insurance company made a final offer of $28,500. Emma discussed the offer with her attorney, considering the costs and attorney’s fees if a lawsuit were filed and the case went to trial, and decided to accept the offer.