Slips and falls result in more than 1 million emergency room visits annually and represent the primary cause of lost days from work, according to the National Floor Safety Institute. Most slip and fall cases alleging a dangerous property condition reach a settlement, with very few claims ever going to trial. The following example illustrates the key elements and lifecycle of a slip and fall settlement in Texas.
Betty drove to the local pet store, Barks and Beaks, to buy food for her parrot. Just outside the entrance to the store was a store-sponsored greyhound adoption event.
Once inside, Betty noticed several dog owners and their greyhounds. At age 64, and with moderate arthritis in her knees and hips, Betty was keeping a close eye on the dogs; she didn’t want to get jostled by the animals in the store.
As she rounded an end-cap to walk down the aisle, a large greyhound startled her. She stepped quickly to her left, away from the shelves, to avoid running into the dog. She didn’t see the puddle of urine on the floor where her foot landed, and she hit the floor hard with her left hip. Unable to get up, she had the store manager call an ambulance. Three witnesses had seen the fall, and one recalled seeing the urine puddle at least five minutes before he heard Betty fall.
X-rays showed that Betty’s hip was fractured, and surgery was required to repair it. After her discharge from the hospital, she needed a cane as well as in-home physical therapy for six weeks. Her surgeon also prescribed eight weeks of outpatient PT to help Betty regain her range of motion in the hip, resume her normal activities, maximize her strength and walk without a limp.
Betty also needed help with activities of daily living, so she hired Visiting Angels to come to her home daily. Betty had worked part-time at a BBQ restaurant. However, after the accident, she was unable to return to her job, which required long periods of standing and some light lifting.
Betty had two years in which to file a lawsuit for her injury under the Texas statute of limitations. (To understand the importance of the Texas statute of limitations in a case like Betty’s, see Nolo’s article, How long do I have to file a slip and fall lawsuit in Texas?)
Once a settlement offer was accepted, there would be no going back later for more compensation if it turned out Betty needed additional care or treatment. To get a better insight into any complications from Betty’s injury that might unfold in the future, her attorney decided to wait until her condition stabilized before submitting a demand letter to the store’s insurance company.
Almost a year after the accident, Betty’s attorney sent a demand letter claiming the store was liable (legally responsible for Betty’s injuries under legal principles of negligence), and describing specifically how the accident occurred.
The letter asserted that the store knew or should have known from past experience that dogs inside their store urinated on the floor, creating a hazardous condition, and also that it was reasonably foreseeable that customers like Betty with her arthritis would be anxious and distracted by the presence of unleashed dogs in the store. Betty took reasonable steps to avoid injury from the dogs. Also, the dangerous condition of the floor resulting from standing dog urine had been present for more than five minutes, according to a witness. (For information on what is needed to show liability in slip and fall cases, see Nolo’s article, Slip and Fall Accidents: Proving Fault.)
The demand letter also spelled out Betty’s damages – an itemized list of expenses and other losses stemming from her slip and fall accident, including:
Betty’s total out-of-pocket compensatory damages amounted to $60,000. Her attorney decided that another $150,000 was appropriate as compensation for Betty’s pain and suffering, anxiety, and loss of quality of life. The total demand was $210,000
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $115,000 to settle the matter. Part of their rationale was that Betty shared some of the fault for her own injuries under the legal theory of comparative negligence in Texas, which would partially offset any liability on the store’s part.
According to the store manager’s report, Betty was wearing dress shoes with two-inch heels, which likely played as much a part in causing her to fall from her sudden evasive step as any urine that may have been present. Two customers had reported the urine to a store employee immediately after it happened, and the employee was on the way to clean it up when Betty fell, according to the report. Additionally, Betty knew there were dogs loose in the store when she walked in and "assumed the risk" of navigating the store safely to do her shopping. (For more on comparative negligence and “assumption of risk” defenses in personal injury cases, see Nolo’s Defenses in Personal Injury Cases.)
The insurance company rejected the home assistance expenses as excessive, deemed any need for future care or treatment of Betty’s injuries speculative. Their letter stated that they did not see anything in the doctor’s prognosis that was inconsistent with natural worsening of Betty’s pre-existing osteoarthritis over time.
After several phone conversations between the insurance company and Betty’s attorney, plus the sending of some additional documentation, the insurance company finally sent a “final offer” of $155,000 just four months before the statute of limitations expired. After discussing the offer with her attorney, and considering the costs and attorney’s fees if a lawsuit were filed and the case went to trial -- not to mention the uncertainty of a jury's decision -- Betty accepted the offer.