Why Slip and fall Cases Generally Don’t Settle Before Suit Is Filed

NeuwirthLawCase Matters, Slip and Fall

Slip and Fall image

In my world, there is a general consensus on the value or certain injuries that allows cases to be routinely settled between plaintiffs’ lawyers and insurance companies.  Let’s say hypothetically that a typical fractured arm or wrist with no surgery and no adverse consequences after a period of splinting or casting, and recovery is worth around $45,000.  Sometimes more, sometimes less. Basically, the client had a clear injury that resolved after a period of healing. If the client has ligament or nerve damage, then the numbers are usually far higher.  However, regardless what the client believes the value is or should be, I know that the going rate is about $45,000. A jury may give you zero or may give you more than that amount.

However, getting to that negotiated amount varies greatly depending on the case. I have probably settled 5 similar cases in the past 18 months in that range of payments. But, those cases were all auto related cases. If they had been slip and fall cases, those settlements would likely not be offered and would not be offered until the case had proceeded through about a year or so in court. Why?

Well, in an auto crash case with a broken arm, you know what happened, what caused the fracture and generally who was at fault. Unlike in Gwyneth’s case, you have a broken arm that everyone can see on x-rays. Plus, there really should be no dispute that my client was not at fault or I would not have taken the case.

On the other hand, in every slip and fall case, there is an element of comparative negligence. In practice, this morphs into the defense lawyer trying to pin some or most of the blame for the fall on the person who fell. Whether they were not looking, should have been looking more closely, were distracted etc. These are all issues that are explored in the course of trying to reduce the value of the case and reduce the value of the damages awarded. Since there are all of these potential avenues to explore and ways to reduce the damages awarded, slip and fall cases almost always go into suit.

Since you know this as a lawyer, what is the right way to proceed? Generally, I cannot do very much until the client is fully healed or near it. Why? Well, you don’t want to settle a case for the value of a fracture if they have permanent nerve damage or need surgery. Second, I cannot really order medical records until treatment is done or near done. But, once treatment is done in a slip and fall case, it makes sense to order the records, make a demand to settle the case, and file suit when you get a lowball offer. There is not much reason to delay filing suit because the low offer will not change until the negligent party is exposed at depositions. In auto cases, a fracture will usually be settled by the insurer as there is really nothing to fight about and they know roughly what the case would settle for down the road and both sides should avoid litigation expenses in that situation.