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 My wife slipped in a grocery store on July 4th. There was a puddle of water in one of the aisles. When she slipped, she went down with the cart on top of her. A report was made with the store manager and a stock person who had assisted her. She ended up with a thoracic lumbar fracture in her spine. My question is - medical bills are paid through my insurance - should we talk directly with the grocers insurance company (who incidentally has been wanting medical history waivers) or to an attorney? I have read that you are not supposed to talk with the insurance company or allow any waivers. My wife has gone through the gamut of tests, both painful and not, and is now undergoing physical therapy. Also her doctor has told us that she will never be 100% again. Does this fact make any difference? One last comment, the insurance company has recently notified us that they want to make their final decision on the claim - even though we have not filed a claim as of yet!
Answer Hello again, Matthew,
In reviewing my allexperts account, I noticed that you had read my answer to you, and yet despite the extra time I had given to you in hopes of helping your wife, you had not left any feedback for me. This tells me that you do not believe the bad news that I have sent to you---i.e. that you must prove liability since the store is not an insurer of your wife's safety.
"There must be some exception in my wife's claim" could be what you are thinking. NO, there will be no exception to that bad news, and that is why I want to emphasize once again to gather and develop some of that evidence that I suggested in the four ways to show liability.
If you want for me to send you some links on store liquid slip and fall cases, I am willing to do that if it will help you to become motivated to gather the proof. Just let me know what state you are from and I will be happy to let you know both the liability law on slip and fall store accidents AND the type of comparative negligence laws you have there.
Meantime, best wishes to you and your wife and for her total recovery,
Dr. Settlement, J.D. (Juris Doctor)
www.settlementcentral.com
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Hi Matthew,
While it is true that thousands of injured victims have used Dr. Settlement's website—www.SettlementCentral.Com for slip and fall insurance settlements on a do it yourself basis, I am NOT recommending that you proceed on your own in this claim. There are two reasons for this: (1) you have a big liability problem, and (2) the injuries are so serious that only an attorney can handle them properly, and any self-help efforts will be ineffective.
Right off the top, the answer to your questions regarding: (1) should we talk directly with the grocer's insurance company; (2) should you give them medical history waivers; (3) or talk to an attorney?
ANSWERS: Talk ONLY to the attorney, and get into her office, ASAP. Do not give any statement to the adjuster; do not sign any medical history waivers; DO return to the store and get information, as I am going to suggest below.
I guess that you thought all that is waiting to happen is to give information on the injuries so they can value the claim. BUT, it ain't gonna be so easy: insurance companies did not become the wealthiest industry in the nation by treating victims fairly. Expect the first fight to be on the issue of liability. You have not stated any reason why the store is liable.
If they do not yet have information on damages, and still the insurance company tells you that it wants to make its final decision soon, that smells like a major discount in the claim for lack of proof of liability. I cannot find any liability against the store in the brief history you gave to me. The mere fact that there is water on a store floor is NOT proof of negligence on the part of the store. You will need to marshal more facts in support of your wife's claim to prove liability. Otherwise, they will simply deny her claim.
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 you and your wife. It sounds like your wife took a real hard fall, and we will want to explore all avenues to proving liability against the store.
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 wife's 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 any store or business 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 minimal medical expenses. But since your own insurance is now paying, why bother trying to get that out of the store, since you will then want to focus your efforts with the store on getting some payment for your wife's pain and suffering and loss of enjoyment of life. We call that "general damages". "Specific damages" are those capable of computation, such as lost wages and medical expenses and the like.
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. Your wife can recover ONLY if she can show that the store was negligent, and even then, her award will be reduced TO THE EXTENT OF HER OWN NEGLIGENCE IN FAILING TO WATCH WHERE SHE WAS WALKING. The store will raise this defense in an effort to reduce her 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 illuminated a dark area so she could have seen the liquic, and hence prevented her 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 liquid was spilled just after the inspector walked past? Why should the store be liable in the event a shopper dropped spilled the liquid?
Here are FOUR SITUATIONS WHEREIN LIABILITY CAN BE PROVEN in your case:
#1. What if the place she 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 the liquid spill. DON'T FORGET: it is the duty of the store to inspect its premises and to look out for dangers. Was this aisle one that those employees travelled frequently? If so, do not be bashful about making the allegation that they were negligent for failing to see the spill.
#2. Maybe liquid 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 liquid spill? I am not talking about just getting soda from the shelf, but instead some kind of display that would make it more likely that some liquid could be spilled? Maybe a soda dispenser or a drinking fountain, or dropped and later stepped on or run over so that candy got in your aisle? That would help you in your liability proof.
#3. What about tracks through the liquid? Can your wife recall having seen dried up tracks where the liquid had been spread by other carts going through it? This is one way to argue that the liquid was on the floor for a long time, and SOMEONE SOMEHOW from that store should have been walking that aisle and should have seen the spill. Once again, stress that this is the duty of the store to inspect its premises looking for dangers.
#4. Is there a security video of that area in the store? Probably yes. Maybe the film, if run backward from your wife's 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.
For an example of how to structure your own set of questions that you could send along informally, why not see an example for free on the site of another state. You could use the language from this link to the Tennessee Civil Rules of Procedure (I just happened to click on this state in my Google search returns; all states will have pretty much the same rules for discovery, but you can easily bring up your own state "rules of civil procedure" 33 & 34, etc.):
Interrogatories
INTERROGATORIES TO PARTIES http://www.tsc.state.tn.us/opinions/tsc/RULES/TNRulesOfCourt/02civp.htm#33
PRODUCTION OF DOCUMENTS AND THINGS http://www.tsc.state.tn.us/opinions/tsc/RULES/TNRulesOfCourt/02civp.htm#34
I would see if a paralegal could make a set of these for you. Ask via a set of informal Interrogatories. (I.e. explain that these are sent in advance of litigation in an effort to resolve this matter without resort to the courts.) Presume that they DO have a security tape, and so just ask for a copy of it in 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 liquid got there, and most importantly, you will see how many employees walked by AFTER the candy was deposited there.
The BIG DANGER, of course, is WHAT IF THE TAPE SHOW THAT THE LIQUID WAS ON THE FLOOR ONLY A FEW MINUTES BEFORE YOUR WIFE CAME BY? What if it were spilled by a customer ten minutes before she 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. In that case, you would have proved the defense for the store!
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 a LEGAL form—is going to give you greater credibility with the adjuster.
Your wife will have the best results with an attorney, so that is something you can discuss with your attorney.
YOUR WIFE'S OWN LIABILITY
One of the basic problems in all slip/trip and fall accidents is that if the dangerous liquid material or spill was big enough where you claim that the store employees should have seen 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 wife's own liability. It will not defeat your claim in most states, unless you live in a politically regressive red state with a 50% cutoff on negligence, so watch out since there could be a real risk of a defense verdict. But mostly you will have to accept some degree of negligence, which will reduce the value of her claim.
The point is, your wife's negligence can be used to reduce the amount of her award. So here is your lesson: assume that they will claim that she is at least one-third at fault, and be prepared to defend on the basis set forth above.
DO NOT BE DISCOURAGED about that defense, but just be aware that it will be raised since your wife's claim has high value. Without telling anyone about your visit, you should go into the store and spot the area where the spill was and see if any of the conditions I set forth above exist. Are the employees routinely walking past that area? Perhaps try to take some photos if the conditions are similar.
As for your wife not seeing the spill, a good defense is to show that the store itself distracted her attention with advertisements in the aisle or those blinking coupons. Take photos that 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 store 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 seen debris on the floor of that store, or 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. If you ignore my injunction to get an attorney, then prepare yourself for some questions. 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.
You can write me back if you are going to try to do this on your own and ask for some links to free legal information www.SettlementCentral.Com personal injury legal insurance claims.
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.
