AboutDoctor Settlement Expertise 27 years of front line plaintiff`s trial lawyer experience in PERSONAL INJURY INSURANCE CLAIMS. Along with other attorneys and insurance adjusters, we have created a website to help injured people settle their own personal injury claims. With the help from feedback from hundreds of satisfied members, www.settlementcentral.com has become THE AUTHORITY for Internet personal injury insurance claim settlements. I am humbled and honored if people can benefit from my experience and current volunteer work in helping injured people. I hope I can explain things in a manner that is useful for the questioner. If not, do not hesitate to e-mail me and I will take a second shot at it! Best Wishes for your physical and financial recovery.
Experience
Life Experience: 27 years of front line plaintiff's trial lawyer experience
Organizations: American Trial Lawyers Association (AAJ)
Washington State Trial Lawyers Association
Awards and Honors:
I am humbled and honored everytime I am selected to help injured people. And when people give feedback that they have benefited from my experience and current volunteer efforts, then that is a double honor and award for me.
Question I've heard about your website and thought I would attempt to settle a premise liability case on my own. I reside in TN. The injury I suffered occurred at Target several months ago where I stepped on a piece of candy on the floor and rolled my foot, which caused a fracture. The associate who checked the floor after my incident walked over to me with the candy in hand and said “I believe this is what you stepped on.” They filed a safety report before I left the store and I immediately sought medical care. I was in a cast for 12 weeks, couldn't drive, etc. I'm ready to settle this case. I just contacted the adjuster to check the status on their end. The adjuster told me he viewed the "incident" on camera. He has also interviewed the store associates who helped me after my injury. He’s advising me to submit my bills, but said it's unlikely they will be 100% negligent because the candy was so “little” and it’s debatable whether something so little could have caused my injury. Little or not, I stumbled out of there with a broken foot and they have it on camera!! I had considered settling for my out-of-pocket medical expenses, lost wages with an additional sum for pain and suffering. I have all my medical records and medical bills and I’ve drafted a settlement letter, but I haven’t submitted anything to the adjuster yet. My question is: Am I seriously mislead to think they will really cover my expenses, let alone pain and suffering? I’m debating whether I should just engage an attorney based on their comment about negligence. How do these cases usually turn out? Is there anything I should include in my settlement letter to establish negligence on their part? Thanks in advance.
Answer Hi Mary Ann,
Thank you for the kind comment that you were led to believe that you could settle your own insurance claim on www.SettlementCentral.Com free legal information. Each case is different, so our information may be helpful, but we cannot tell whether it will turn a marginal case of liability into a 100% negligence case. Do not be deceived by the adjuster speaking as if all you have to do is to submit a letter and you will win. I will bet a lot of $$ that he will admit to only minimal fault, and hence even if he agrees to pay your claim, he will try to get away for something like ten cents on the dollar of value. Hence, since your negligence proof is limited, but your damages are large, I am going to give you a full hour of my time to help.
We start with the most important issue: liability; we will first look at both sides of the liability issue. That is going to be the real challenge in this claim. You need to be able to cite some reason why the store should be responsible for your damages; tell how they breached their duty of care to customers; otherwise you will lose.
In order to recover for damages of any kind, you must prove negligence, and in this case, it COULD BE the store. But note that it COULD BE there is no liability whatsoever. Nobody guarantees your safety on their premises. One must prove negligence on the part of the store before they will be forced to pay one dime to an injured person.
Note, however, that most stores do have a policy that will cover LIMITED medical expenses for injuries sustained on their property, irrespective of whether or not they were negligent. So one should be able to have them at least cover medical expenses.
But there is no automatic liability against a business; one has to show negligence on their part. Premises Liability Slip Or Trip And Fall Accidents http://www.settlementcentral.com/page3006.htm is an excellent review of premises liability or slip and fall accident confusion as to liability. There are three good examples on that page to show you the difference between liable property owners and those whom one cannot sue.
The store IS NOT AN INSURER OF YOUR SAFETY. You can recover ONLY if you can show that the store was negligent, and even then, your award will be reduced TO THE EXTENT OF YOUR OWN NEGLIGENCE IN FAILING TO WATCH WHERE YOU WERE WALKING. The store will raise this defense in an effort to reduce your award.
The duty of the store toward its patrons is one of affirmative obligation to inspect and to remove any dangers, such as a loose candy or a spilled liquid on a hard surface floor. There is also an affirmative duty to protect the patrons from a foreseeable risk if the cost of that protection is reasonable.
For example, perhaps they lacked an inspection schedule for patrolling the store, or lighting that might have prevented your fall. In this case, the cost of setting up a periodic inspection patrol or better lighting is minimal when compared to the risks to the patrons. But what if they DID have a schedule for employees to look at the aisles for debris every half hour and the candy was spilled just after the inspector walked past? Why should the store be liable in the event a shopper dropped the candy?
Here are THREE SITUATIONS WHEREIN LIABILITY CAN BE PROVEN in your case:
#1. What if the place you fell were in front of a customer care counter, or a checkout counter, or within a pathway that all employees took to go to break or to the office? In that case, you would have a better chance of showing negligence since the employees were passing by regularly and they should have seen it.
#2. Maybe candy spilled as a result of some kind of SELFHELP STORE DISPLAY. Here is one exception that will help you to argue liability. Was there any kind of self-help display near to that place where the candy was? I am not talking about just getting candy from the shelf, but instead some kind of display that would make it more likely that some bag could be dropped and later stepped on or run over so that candy got in your aisle? That would help you in your liability proof.
#3. Maybe the film, if run backward from your fall for half an hour will show the spill and then show one or more employees walking right past it. In that case, your claim is going to be helped since that would be the proof of negligence. But how do you get to see the film? You have to file a lawsuit first. Then your attorney can get it as part of what we call "the discovery process".
Basically, this means that each side gets to "discover" evidence held by the other side. In this case, your attorney will send a set of "interrogatories" and a set of "requests for production". The interrogatories are a series of questions, and the store will be asked if a film exists for that day. The requests for production will require the defendant to produce that film for copying or to make a copy for you to own.
Can you do this on your own? Probably NOT, unless your adjuster is willing to go along with you on an informal basis. In all of my years with insurance claim adjusters Doctor Settlement has personal injury experience with hundreds of insurance adjusters, and I can list on my two hands those who would take the risk to give you this kind of evidence before you start a lawsuit.
I would see if a paralegal could make a set of these for you. Since you already know that the tape exists, you do not need the Interrogatories. So just ask for the Requests for Production. Ask them to produce the tape for that day from one hour before the accident until half an hour after the accident. Thus you will see how the candy got there, and most importantly, you will see how many employees walked by AFTER the candy was deposited there.
The danger, of course, is that the candy will have been there for only a few minutes before you came along. What if it were spilled by a customer ten minutes before you arrived? Hence there would not have been any chance for you to say that the store breached its duty of care by failing to inspect the aisles.
So it is a tough choice for you. But it is not impossible to get the tape. And there is a GREAT ADVANTAGE to preparing and sending a Request for Production because the mere fact that you knew what you were doing—AND that you actually send a letter and form—is going to give you great credibility with the adjuster.
YOUR OWN LIABILITY
One of the basic problems in all slip/trip and fall accidents is that if the dangerous material was big enough for the store employees to see it, then is was also big enough for the customer to see it. So, the adjusters always ask: why did you not watch where you were walking?
Now, once again let’s look at your own liability. It will not defeat your claim in most stated, but you live in a politically regressive state with a 50% cutoff on negligence, so watch out since there could be a real risk of a defense verdict. See below for more on this topic.
The point is, even if you were to get past the comparative negligence defense in Tennessee, your negligence can be used to reduce the amount of your award. So here is your lesson: assume that they will claim that you are at least one-third at fault, and be prepared to defend on the basis set forth above.
How is Tennessee different from most other states when it comes to the negligence of the claimant? Well, the claimant can lose if she is 50% negligent. Let's start with an understanding of your regressive system of negligence in Tennessee. If the store can show that you were 50% or more at fault, then you will have NO claim whatsoever.
This is so because you, as a voter, made it so. Since your state is politically a "red state", wherein the voters continually elect conservatives, you are one of only 16 states with regressive negligence systems. Why? Because the insurance industry funds your legislature ("appreciation" night dinners, etc.), and in return, your elected officials look out for the insurance industry much more than they do their constituents.
By comparison, there are some progressive states that allow comparative negligence, no matter what the degree of negligence of the plaintiff. But not so in your state, so be aware of that weakness in the claims of negligence in your state.
DO NOT BE DISCOURAGED about that defense, but just be aware that it will be raised if your claim has any value. Without telling anyone about your visit, you should go into the store and spot the area where the candy was and see if any of the conditions I set forth above exist. Perhaps try to take some photos if the conditions are similar. Show the eyelevel distractions of what would have caught your eye as you walked.
Gather Evidence: photos and witness statements
GET PHOTOS
Take your cell phone or small camera and take some photos of the area. GATHER ALL EVIDENCE NOW: DO IT QUICKLY AND QUIETLY, without notifying the hotel just yet. Leave that for later. http://www.settlementcentral.com/page0216.htm Evidence to Support Your Personal Injury Insurance Claim of Premises Liability, Slip and Fall.
GET WITNESS STATEMENTS: if you know of anyone who has experienced a slip and fall or even a near-accident on any similar conditions, then you can use their statement. Also, take a moment to get the statements of any witnesses down in writing. This will also prepare them for what they will be asked later on. Witness Statements Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm
Be Prepared for the Kinds of Questions they Might Ask of you.
Of course we would like to avoid giving any recorded statement, so ask the questioner to send a list of questions since you do not think well in quick pressure situations. Fat chance she will do that, but you could try. At a minimum, you need to be prepared for an interview.
We have not made up a list of questions to expect for the premises liability part of the free side of my website, so you will just have to use the following as a guide to the range of questions to expect. This is a list of questions insurance adjusters ask http://www.settlementcentral.com/page0207.htm injured claimants.
Here are two pages that tell what to do now if you have already given a recorded statement to the adjuster.
Learn how to handle a SELF-HELP INSURANCE SETTLEMENT—this is just in case you want to take a shot at doing some of this on your own. OK, Mary Ann, let’s look at self-help methods of resolving your claim. Learn how to settle your personal injury insurance claim AND DO IT YOURSELF.
Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
Learn how to communicate with the insurance adjuster: FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
