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
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Question I was staying at a Nashville Tn Hotel, was walking to car and the pavement was uneaven and there was no sign chairs sitting on it and planters you had to walk around, I fell over the uneven pavement and did extensive damage to my left knee and leg I did make a report to the hotel, a clerk, she said she would leave it on the Mngs desk, they never got back to me about what to do weather to go to dr. We had to go back home for emergancy and I went to dr here, I have to have surgery on left knee and have nerve damage from the fall. They never even contacted me at all.
Answer Hi Angela,
I am sorry to hear of your knee surgery—ouch! That is a serious injury, and hence one will want to follow up my comments with a brief presentation to an attorney. That is not any kind of Southern Hospitality, is it? At the least, one might expect a follow-up call to check on their guest.
I take it that you did not write about not getting a phone call, though. I suspect that you wanted to ask a question as to what you should do now, or if you have a claim versus the hotel.
Since you have a serious injury, and in light of what I see as potential problems, I will put in a lot of time for you. I hope you will consider doing as I am going to suggest. And I am going to divide your answer into four topics:
• General overview of hotel liability
• Discussion of your liability and losing under "red" state Tennessee comparative negligence law
• Analysis of liability of both parties
• Recommendations
#1. General overview of hotel liability
First off, let's take a little cruise through the field of hotel liability. This is the first place to start since the hotel does not owe you one thing unless you can prove that it was negligent. That means you must show that it breached a duty of care by not curing the defective pavement or posting a warning about it. I kind of doubt that you can meet that burden of proof. But instead of just dismissing your claim, I am going to give you some extra time to go over the rules of premises liability so you can judge for yourself what to do next.
We start with the most important issue: liability; we will first look at BOTH sides of the liability issue (yours and theirs). That is going to be the real challenge in this claim. You need to be able to cite some reason why the hotel should be responsible for your damages; tell how they breached their duty of care to their guests; otherwise you will lose.
#2. Discussion of your liability and losing under "red" state Tennessee comparative negligence law
Next, you will have to defend against a claim of comparative negligence that could bar your claim or diminish your award. Tennessee is a "red" state (as opposed to the more progressive "blue" states), and hence it is a bit regressive. In that state, they will bar any claim whatsoever if the victim claimant is 50 percent or more at fault. But if she is 49 percent or less at fault, the victim claimant can recover versus the tortfeasor, although her recovery is reduced by her degree of fault.
In order to recover for damages of any kind, you must prove negligence, and in this case, it COULD BE the hotel. 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 hotel before they will be forced to pay one dime to an injured person.
You might be surprised to learn that 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 hotel IS NOT AN INSURER OF YOUR SAFETY. You can recover ONLY if you can show that the hotel 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.
#3. Analysis of liability of both parties
The duty of the hotel toward its patrons is one of affirmative obligation to inspect and to remove any dangers, such as a dangerous pavement or walkways. 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 inspected the grounds and failed to note a dangerous condition. Or, perhaps they did note it but failed to remedy a dangerous condition. In that case, they would seem to be negligent.
But your description does not describe the condition in sufficient detail for one to judge whether or not it was a dangerous condition. You mention only "uneven pavement", and that could describe a wide variety of conditions. For example, most of us have and will walk over uneven pavement at least a couple of times a week. That is just how things are: rarely is everything perfectly smooth out in public.
I have taken on four cases where the pavement varied from uneven to having a lip of an inch or more (i.e. in a 7-11 parking lot with poor lighting at night). I won two of them and we had to take a marginal settlement on one and a bare minimum very low settlement on the fourth case. So, these are difficult. The defense one encounters is that my clients did not look where they were walking. That is so easy to sell to a jury. It is hard for the plaintiff's attorney to explain why his client could not see a defect that is plainly obvious on the big blowup photos they bring in.
BUT, what about on the HOTEL GROUNDS? Here, our expectation is to have things tidied up a bit, and hence pavement that is uneven could be dangerous. It just depends upon the degree of "unevenness". AND whether or not one could see it.
I wish you had taken a photo of it. But it is not too late for that since if an attorney thinks there is sufficient information to go forward, she will have someone go out and take photos. OR—better still, if you have a friend in the area, have her use the cell phone and take six or so shots around that area, especially coming from the way you were walking. It could be necessary to have those photos in order to attract an attorney to even talk to you.
Next, you do not mention lighting or anything erected by the hotel that would attract your attention away from where you were walking. If this were in marginal light and they had no lighting in the area, your case is strengthened. Also, if they had a display, or a bar sign, or something that would be designed to attract your eye, you would have a better excuse for not watching where you were walking.
#4. Recommendations
This is a three pronged answer in and of itself.
First, let's discuss how you get your medical bills paid. If you are OK with health insurance then that is fine. I would not, at this stage, tell your health insurer that you may make a claim. That just complicates things, and anyway, right now I am not so sure you have much of a claim.
BUT if you are hurting for $$ to pay the medical bills, then I would contact the hotel. They WILL NOT EVER pay medcial bills as you go on a claim against them for liability. Instead, you will ask for their no-fault medical coverage. Send a letter with your facts and your medical reports.
Most hotels DO have an insurance 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 some of medical expenses. The largest no-fault coverage I am aware of, however, is only $5,000.
Second, let's see if there is some way to get photos of that area. You can then have a better chance of interesting an attorney in your claim. Or, maybe the photos will show the area to be pretty safe, and the uneven paving not much of a danger. One just does not know—so it is best to get them if you can.
Third is a discussion of going it alone versus hiring an attorney. While we teach personal injury insurance claims at www.SettlementCentral.Com this is NOT one that I would recommend you try to settle on your own. The main reason is the big liability question. Besides the issue of whether they were liable to start with, they are going to try to attack you for not watching where you were walking. So this is going to require a professional.
No, attorneys are not going to be jumping over themselves to get this case. You are going to have to sell them on even talking to you, let alone taking on your case. Here is your main selling point: your big damages. You have a serious injury and a surgery. That is worth sufficient money to attract an attorney, even if you are somewhat negligent. So use that as your position of strength.
Argue that the pavement in all surrounding areas was perfectly flat, but it was only in this one area that IT CONSTITUTED A DANGER. Add in the fact that you had to walk in an unusual pattern owing to the things you told me about. THAT can also be an excuse for not seeing the danger.
DO NOT BECOME DISCOURAGED by my realism. Would you want me to sugar coat this and tell you to go ahead and you will win? Better to know the truth. But don't just give up. I have won cases that are a bit thin, as we say. So it can be done, and the beauty of the trial attorney contingent fee system is that you do not have to take all the risk. Oh, that reminds me of the attorney contracting. You may expect a higher fee than the auto accident one-third. Why? Premises liability claims are tough to prove, and one also has the deduction from the award for the percentage of the client's negligence. UGH. I once had a GREAT award, but it was reduced by 40% because of my client's negligence for failing to see the danger that injured her. Yikes, I should not have told that or you will become discouraged all over again. DON'T. Keep your faith up and do as I outlined and I hope someone will take your case.
Good luck with your knee surgery and I hope you do have a swift and complete recovery. I trust that my 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.
