Most slip and fall injury claims reach a settlement, with very few cases ever going to trial. But what is the typical process for reaching a settlement? Let's look at a hypothetical example to illustrate the key elements and lifecycle of a slip and fall settlement in New Mexico.
Ron Rusk, CEO of a start-up commercial satellite company, just finished the morning session on the first day of his leadership team meeting at Rocket-On Ranch (ROR), an offsite facility less than an hour drive from Spaceport America. While the group waited for lunch to be served, Ron and one of his vice presidents, Richard, took a walk in the field behind the rustic ranch house to discuss the afternoon meeting agenda.
As they talked about the planned dinner that evening at the Spaceport, Ron suddenly felt a stabbing pain in his left ankle as something snagged his left foot. He fell forward, landing on his right shoulder with a cracking sound. Richard, hearing his boss and friend cry out in pain, looked down and saw the tail fin of an amateur model rocket stuck in the front of Ron’s ankle. The dessert brush hid most of the rocket hull, its small parachute still attached, which had fallen back to earth the previous weekend during the monthly launch held by a local amateur rocket club.
X-rays at the hospital confirmed the broken clavicle that Richard noticed when Ron first stood up after the fall. Given the bone misalignment, the ER doctor arranged for Ron to have the bone pieces surgically pinned in Las Cruces the following day.
The doctor sutured a two-inch laceration in Ron’s ankle, bandaged it, splinted Ron’s shoulder, and gave Ron painkillers to help him get through the night and the drive to Las Cruces.
After surgery the following day, Ron stayed one night in the hospital and then was discharged with more painkillers and instructions to commence several weeks of physical therapy once he was back home in Los Angeles.
The ER visit, surgery and recovery time resulted in Ron missing the remainder of the leadership meeting (including the team dinner at the Spaceport), delaying his flight back to Los Angeles, and postponing several important meetings for four days after the accident.
Unable to drive himself, Ron hired a driver for almost two months to take him to and from the office, as well as to meetings.
Ron’s limited edition Oakley sunglasses could not be repaired, and he remained unable to play golf or tennis – his favorite pastimes and preferred opportunities for informal business meetings -- for almost five months after the accident.
The New Mexico statute of limitations provided Ron three years in which to file a lawsuit for his injury. (Learn more:How long do I have to file a slip and fall lawsuit in New Mexico?)
Once a settlement offer was accepted, there would be no going back later for more compensation if Ron needed additional care or treatment. Ron's attorney wanted to make sure Ron’s condition had stabilized before submitting a demand letter to the insurance company. So, six months after the accident, the attorney sent a demand letter claiming that ROR was legally responsible for Ron’s injury and describing specifically how the accident occurred.
The letter asserted that ROR knew or should have known that any unrecovered spent rockets from the rocket launch activities the previous weekend by its customer, the local rocket club, constituted a hazard to other guests. ROR also knew or should have know that guests were unlikely to notice rocket debris because of the desert grasses, chaparral, sage and other vegetation. (More: Proving Fault for a Slip and Fall.)
The demand letter included an itemized list of Ron's losses stemming from the accident, including the cost of medical care (i.e., ER, surgery, medications, rehabilitation, etc.), the cost of a driver, and the loss of his sunglasses.
Ron’s total out-of-pocket compensatory damages amounted to $9,500 for his medical expenses, $8,000 for the driver, and $240 for the sunglasses. His attorney decided that another $23,800 was appropriate to compensate Ron for his pain, discomfort, and loss of enjoyment of his usual activities. The total demand was $41,540.
In support of the claim, the letter included:
Learn more about Personal Injury Demand Letters.
The insurance company responded with a letter rejecting the demand and offering $30,000 to settle the matter. The insurance company asserted that (1) ROR didn’t know of the existence of the spent model rocket hull, and (2) under comparative negligence theory in New Mexico, Ron contributed to his own injuries by neglecting to watch where he was walking. Learn more about how comparative negligence affects a slip and fall case.
Ron’s attorney responded by sending the insurance company a statement from the president of the amateur model rocket club stating that, during their launch activity the weekend before Ron’s accident, rocket club members were unable to locate three spent rockets. The rocket club also told the owners of ROR the approximate locations where the spent rockets might have landed. The attorney asserted that not only did ROR know about the lost rocket hulls, but no one from ROR warned Ron or anyone at his company about the potential danger of the rocket hulls on the property.
After several phone conversations between the insurance company and Ron’s attorney, the insurance company made a final offer of $39,500. Ron briefly discussed the offer with his 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. Get more Tips for Settling a Slip and Fall Claim.