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Counsel That You Can Trust & Depend On


Guy DiMartino Oct. 19, 2013

Many cases do, in fact, settle. However, many of the slip and fall cases that have gone to trial have led the juries to find the clients 95 percent at fault. Therefore, the clients were able to get just 5 percent of their recovery.

Jurors are hard on slip and falls. To some extent, dealing with general or commercial policies is easier than dealing with the property and casualty insurers on the automobile side. This is because, with the bigger policies, the adjusters have more say.

Therefore, if someone was dealing with an auto claim with State Farm or Allstate, he's working with line adjusters. And those line adjusters don't have any authority. After all, they have a supervisor pushing their pencils.

Although slip and fall cases have tougher liabilities, a lot of times a person can achieve the liabilities. Generally, achieving this is easier than some auto type cases just because there are bigger limits of liability. Most commercial policies have a million dollars in coverage, and the dynamics are different.

For instance, if someone falls in Walgreens or CVS, he would not want this in the papers. People want a good public perception. Therefore, many things generate what occurs in real people's lives that don't deal with the specific facts of the cases. This is why it is sometimes important to have a lawyer.

Note that not all lawyers are alike. A person needs to have a lawyer with experience in dealing with these different entities to know how everything is going to go. This is somewhat like in a criminal case.

For example, if a local lawyer who appeared before Judge X has appeared before that judge 10, 12, or 100 times, then he would know what that judge is going to do with a certain factor scenario. If Judge X hates drunk driving, then it would be expected that he would put the hammer down if the client had a drunk driving case. Alternately, the judge would be okay if the client was just picked up for shoplifting.

This is similar to dealing with larger chains and larger retail establishments. It is easy to predict their behavior, know their culture, and comprehend what they will end up doing.

Is It Easy To Predict How Some Stores Will React Compared To Others?

For years, Wal-Mart would not settle any claims. They had to file suit on every claim when Sam Walton was alive. They were known and sanctioned throughout the United States for hiding evidence and not providing evidence. Then, however, Wal-Mart changed, and they are a lot easier to deal with now.

For the last 7 years, Wal-Mart has been a lot easier to deal with. However, Wal-Mart remains a very sophisticated defendant. Typically, a Wal-Mart claim will not get the same value as some of the other claims.

This notion further depends upon the claim. If it is a bad prescription claim, for example, then the case has a lot more resolve appeal than if somebody fell on some water. Again, this links to their perception. They want people to come into their pharmacies, and they do not want to hear that somebody was given the wrong medicine and put in the hospital. The facts really matter in these cases.

Are People Typically Lucky To Get Their Medical Bills Paid, Or Can They Get A Substantial Settlement Amount?

It depends on the case.

There have been many substantial settlement cases. When defending cases, I've found that some cases were paid a lot of money. Recently, a slip and fall claim for almost a quarter of million dollars was resolved. Therefore, it all depends upon the facts of the case.

Do You Visit The Scenes For These Cases? What Makes You Suited To Handling These Cases?

I personally visit the scene and sit to watch everything happening. I look at the video and watch how people walk in the area. Too much psychology goes into the store issue.

Fronting the shelves is the way stores display their items on the shelves. Therefore, a customer must be aware of their surroundings, despite the enticing shelving. This is because one of the arguments often made is that if the person was paying attention and looking down, he wouldn't have seen the obstacle. This doesn't work well when they are actually enticing people to look at a display positioned at their eyelevel.

Therefore, if a store is enticing a customer to look at a display at eyelevel, they are, as they say, talking out of “both sides of their mouth” if they say the customer should have been looking at the ground for protection. This is why it is so important to actually visit the scene, take a look at what is going on, and watch what people are doing.

Are There Any Cases In Which It Seemed Like The Person Would Not Get Compensation But The Lawyer Prevailed?

This is found with almost every slip and fall. As a general rule, insurance companies deny slip and fall claims. Most of the time, the person has to file suit, do the discovery, get the information, and make his argument.

I practice in Florida and in Indiana. Florida is a state in which comparative fault goes all the way to 100 percent. Therefore, if the jury finds out the felled person is 90 percent at fault, then the person still receives 10 percent compensation. Depending on the injury, this could be a substantial amount of money.

In Indiana, on the other hand, the injured person cannot be more at fault than the defendant. Insurance companies begin looking at the case by stating that the plaintiff is at least 50 percent at fault. Note that it is always an uphill battle with slip and fall cases.

This is different than trip and fall cases. Further, jurors hate slip and fall cases. The average juror usually says he would have walked a different way, watched where he was going, and had a different pair of shoes on. As such, it never would have happened to them. This is called negative attribution.

Generally, people have defensive mechanism in which they say they would have never done something until they do. Insurance companies know this and have done the research.

Therefore, when someone is dealing with slip and fall cases, he has an uphill battle from day one. Contrary to car crash cases, slip and fall cases need a lawyer from day one. A lot of people can handle car crash cases themselves. It is not recommended in a slip and fall case.

Why Do People Think That?

It is a negative attribution, and it is based in psychology. Medical malpractice cases are seen all the time. A woman with breast cancer goes for a second opinion, but jurors say they would have gone for a third opinion. People don't want to believe they will be put in that situation.

One of the biggest hurdles is that plaintiffs or people who are injured in personal injury matters have to overcome this negative attribution.

Is It Ridiculous For Anyone To Handle His Own Slip And Fall Case?

A person should not handle his own slip and fall case if he wants to make a personal injury claim.

If he simply wants his medical bills paid under the medical payments portion of the policy, without showing that the store was negligent, however, then he can handle his claim because he does not have to show responsibility. He must simply show that he was injured on the property.

Anything Else You Would Like To Add?

Another thing about premises liability: so many different types of claims can fall under a premises liability or a commercial policy, like a homeowner's policy.

Some boarding claims and a dog bite claim can fall under somebody's homeowner's policy, which is a premises claim. If somebody is riding a lawn mower and causes some type of incident, then that is a quasi-premises liability claim.

If someone in Wal-Mart ran into another person using a motorized scooter, then that patron might have a claim against the person on the scooter. This would be covered under his homeowner's policy.

Premises liability claims are a wide umbrella. I handled a claim recently in which a girl picked up a shotgun at somebody else's home, it discharged, and it tore off someone's forearm. She went to prison. However, this ended up being a premises liability claim against her parents' home.

Premises liability claims are very broad. Alcohol issues at parties, swimming pool issues, dog bite issues, other pet issues, and loaning equipment to a problematic neighbor are all types of claims that sit under the umbrella of a premises liability claim. Lending your neighbor a ladder could be a premises liability claim, even though the accident did not happen on your property.

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