In New York, 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 the key elements and lifecycle of a slip and fall settlement in New York.
Kevin, a well-known Native American flute player, took a break from his favorite slot machine in the casino at the Wolf Dancer Resort upstate, to grab a snack and stretch his legs. Just as he stepped from the carpeted area where the slots were located to the tiled floor in front of the vending machines, his right moccasined foot “felt like a water ski,” as he put it.
He slammed into the aluminum soft drink machine, breaking his nose and his favorite pendant. As he fell, he reached out to grab the machine, but instead caught his index finger in the change dispenser, dislocating the finger as he hit the floor.
Kevin didn’t notice the pool of rainwater from the skylight that had been left open since the day before to increase airflow inside the casino. He later learned it had been raining for hours. The casino had hosted an indoor powwow the previous day that included a “rain ceremony,” hoping that rain would reduce the summer humidity for casino patrons.
Learn more about Slip and Fall Accidents in Stores and Businesses.
The ER x-rays showed a hairline fracture to Kevin’s nose, but no finger fractures. So, the ER physician gave Kevin ice for his nose, relocated the finger and sent Kevin home in a finger splint, which he instructed Kevin to wear for the next two to three weeks. The doctor referred Kevin to a local orthopedist for follow-up care and prescribed painkillers.
Two weeks later, the orthopedist told Kevin that he could begin physiotherapy the following week, for a period of six to eight weeks, to regain mobility and strength in his finger.
Kevin had been performing nightly with his Native Flute at the resort hotel adjacent to the casino, with two more weeks left on his contract. After that, he was booked for a six-week engagement at another casino/hotel resort in Connecticut.
The smashed pendant was a unique piece made of silver and rare alexandrite, turquoise, and obsidian -- a gift from a famous actor with whom Kevin had appeared in a movie some years earlier. Its appraised value was $35,000.
Kevin had three years in which to file a lawsuit for his injury under the New York statute of limitations. (For the details, see How long do I have to file a slip and fall lawsuit in New York?)
Six months after his accident, Kevin regained near-normal strength and dexterity in his finger. Hisattorney sent a demand letter claiming that Wolf Dancer Resort, Inc. (WDR), which owned both the casino and hotel, was legally responsible for Kevin’s injuries, and describing specifically how the accident occurred.
The letter asserted that WDR management knew or should have known about the dangerous condition caused by the open skylight because:
The demand letter included an itemized list of Kevin's losses stemming from his slip and fall accident, including:
Kevin’s total out-of-pocket compensatory damages amounted to $3,500 for his medical expenses and $44,000 for the loss of his music performance income. Replacement value of his pendant -- irreplaceable to Kevin for sentimental reasons -- was $35,000. His attorney decided that another $9,500 was appropriate to compensate Kevin for his pain and suffering. The total demand was $92,000.
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $68,000 to settle the matter. The insurance company asserted that, under the legal theory of comparative negligence, Kevin shared some of the responsibility for his own injuries by choosing to wear moccasins, which it called “inherently slippery footwear,” on the tiled casino floor. (More: What if I am partly to blame for my slip and fall in New York?)
In response, Kevin’s attorney sent a written statement by a witness who said she had advised a casino employee about the water and was told that the casino was aware of it, but the facility had only two floor warning signs that already were being used at the casino entrances.
The attorney also sent documentation that the adjoining hotel actually provided the moccasins Kevin was wearing to hotel guests in most of the hotel rooms, including Kevin’s. After several phone conversations between the insurance company and Kevin’s attorney, the insurance company made a final offer of $83,500. Kevin 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.