Most slip and fall cases end up settling out of court, with very few claims ever going to trial. That's true in every state, and Oregon is no exception. But what might a settlement look like? The following example illustrates the key elements and lifecycle of a slip and fall settlement in Oregon.
Reed arrived in Ashland via the Pacific Crest Trail to rest, refresh and resupply before resuming his hike up to the Bridge of the Gods at the Washington border. After getting a hotel room, a hot shower and a juicy steak for lunch, he headed downtown to Hooper’s Outfitters to pick up the supply package his friends had sent so he could continue his journey the next morning.
He carried his backpack into Hooper’s so that he could transfer the supplies from the package directly into his backpack. After he loaded the contents and paid the cashier for holding his package, he turned and headed for the door.
The old floorboards bounced a little as he walked. As he stepped onto a foot-long piece of blue painter’s tape pasted to the floor, the board beneath it gave way. Reed felt a sudden snap followed by sharp pain in the back of his lower left calf as his foot dropped suddenly through the floor.
“You okay?!” the cashier yelled. “Guess you didn’t see the sign,” he continued, pointing to an old sheet of white paper taped to the back of the cash register on which the words “Watch out for blue tape!” were written in black marker.
“We’ve marked out the boards with the big cracks just so folks don’t step on ‘em,” he explained.
At the local ER, the doctor suspected a ruptured Achilles tendon. Ultrasound confirmed a partial rupture. The doctor referred Reed to an orthopedic surgeon for follow-up and sent him home with an ankle splint and prescriptions for anti-inflammatories and painkillers.
The orthopedic surgeon assured Reed that surgery would offer the best outcome to get his tendon repaired and minimize the risk of reinjury. Following surgery, progressive physiotherapy over a period of weeks was necessary to regain range of motion and strengthen the tendon and ankle.
Reed was a nationally-recognized triathlete and had been training for the upcoming triathlon national championship, which was scheduled just two months after the accident. He came in first place in the previous year's race. As a result of his injury, however, Reed had to drop out of the upcoming competition to heal and rehabilitate, hoping that he could work his way back to the nationals over the course of the coming year.
His injured tendon and the surgery to repair it also required that he be off from work for two weeks.
Reed had two years in which to file a lawsuit for his injury under the Oregon statute of limitations. (Learn more: How long do I have to file a slip and fall lawsuit in Oregon?)
Reed's attorney wanted to wait until Reed’s condition stabilized before submitting a demand letter to the insurance company. So, six months after Reed’s accident, his attorney sent the letter, claiming that Hooper’s Outfitters was legally responsible for Reed’s injuries, and describing specifically how the accident occurred.
The letter asserted that Hooper’s Outfitters knew that the cracked floorboards created a dangerous condition of the property and neglected to fix it or to warn customers. (Learn more about Slip and Fall Accidents in Stores.)
The demand letter included an itemized list of Reed's losses stemming from his accident, including the cost of medical care (e.g., ER, ultrasound, surgery, medications, physiotherapy, etc.) and his loss of earnings.
Reed’s total out-of-pocket compensatory damages amounted to $12,000 for his medical expenses and $3500 lost income. His attorney decided that another $32,000 was appropriate to compensate Reed for his pain, discomfort, anxiety, and the loss of a season in his beloved sport. The total demand was $47,500.
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $35,000 to settle the matter. The insurance company asserted that Hooper’s had posted a sign in plain sight at the cash register warning customers to avoid the blue-taped areas. Under comparative negligence rules in Oregon, Reed’s failure to heed the warning contributed to his own injury and thereby reduced any damages to which he might otherwise be entitled. That's the insurance company's theory, anyway. Learn more about Comparative Fault in Oregon Slip and Fall Cases.
Reed’s attorney responded that “the so-called ‘warning sign’ was wholly ineffective and could not even be seen by customers who were in line waiting to pay at the register when other customers were present and blocked the sign from view,” as had been the case when Reed was injured. The attorney included a photo of a customer blocking the sign just after paying at the register.
Additionally, the sign just stated to “watch out for blue tape” with no reference to the floor cracks or any hazards to customers while walking through the store. And the store’s choice to tape-over the floorboard cracks “only served to hide rather than highlight the known hazard.”
After several phone conversations between the insurance company and Reed’s attorney, the insurance company made a final offer of $40,500. Reed 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. (More: Tips for Settling Your Slip and Fall Claim.)