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Lombardi Law Firm

A trip and fall case like a gold mine worth maybe a million dollars or nothing


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12/1/2014
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Question: How much can I settle a broken arm/trip-fall case?

Question Detail: What is the usual settlement for a trip & fall? I broke both arms and have over $100,000.00 in medical bills? I broke the elbow in the left arm, broke the right shoulder and then underwent surgery along with a long course of physical therapy. The hotel where I was hurt has admitted fault.

Answer: This is not an easy question to answer. It is certainly not as easily answered as your question implies. You are assuming it is easy to calculate damages in any personal injury case and that we have some magic formula. The media and the insurance industry have spent a great deal of time and money to convince the general public that “jackpot justice” does exist. It doesn’t, but some want you to believe that it does. I will attempt to answer your questions by giving you a general idea of what to expect. But, with such limited information and you knowing very little about the law of premise liability it will probably not be very useful. There is no express lane in the law of personal injury claims like the ones at the grocery store.

This is really the biggest issue I have with answering this type of valuation question. What you’re asking for is a jackpot justice answer and one doesn’t exist. Facts drive the legal issues and the legal issues are pretty well set. But some of what we have to do is put many facts together to estimate what a jury would do with your case.

One of those facts is whether or not the jury will believe and like you. If not then there is no jury who will likely award compensatory damages. Then we need to gather as many facts as we can about how the accident happened and whether a reasonable person would have still been hurt and suffered damages. If so we are on our way to assessing how much might be awarded. And that is where more facts, medical opinions, wage loss calculations and reduced earning capacity evidence shows the likely losses. 

None of this is easy. But let us go on. 

We will first have to understand the legal issues and that will allow you to ask the right questions to dig up the facts, like an archeologist digs up bones to understand what they are looking at.

CAVEAT EMPTOR

First caveat is I am an Iowa lawyer who practices both personal injury and Iowa workers compensation. We handle other areas but they aren’t relevant to this question. I’m assuming with my answer this is a case where venue would be in Iowa and subject to Iowa law. So let’s get busy with an answer to your important question.

THE FOUR PARTS TO ANY SLIP-FALL OR TRIP-FALL CASE

There are two general parts to the law of slip or trip and fall cases and four overall: Liability and damages. Liability is absolutely the hardest to prove, after which damages are driven by the medical and economic opinions. Slip up proving either and your case might as well be gold at the bottom of the deepest sea on earth, because it’s just about as useless to you. So what about liability?

PART I - LIABILITY

You say they admitted liability, but that may or may not be true. You’ve given me nothing to go on to understand that alleged admission. I’m going to guess the hotel manager said something about not having to prove liability for your medical bills to be covered on the premise liability insurance policy. And that’s true for most premise or property insurance policies. The medical pay coverage is just one type of coverage offered by an insurance policy covering property, either homeowner or commercial. But it only covers medical bills and usually not all of them. Most have dollar limits like $1,000 or $5,000 or some low limit not useful in larger cases.

AN ADMISSION IS NOT ALWAYS AN ADMISSION OF LIABILITY

Do you have this admission of liability in writing? If not then you can forget about it after the lawyers get involved because that “admission” will quickly evaporate into thin air, as thin as at the top of Mt. Kilimanjaro.

“You heard wrong, we never admitted anything.”

“That manager is no longer with us and we don’t where to locate him.”

“We don’t remember anyone saying that to you, do you have it in writing?”

“We would never admit liability in a trip-fall case and especially not in this one. It should be obvious the guest was at fault.”

Is it becoming clear how this liability game works? You will always be blamed and the hotel and its professional case mis-managers will never-ever admit liability on the record. Okay maybe never-ever is a bit of an exaggeration, but liability is almost always contested.

MAYBE ATTORNEY LOMBARDI JUST DOESN’T UNDERSTAND THE LAW

Now I know what you are thinking, “He just doesn’t understand my case so why should I listen to him?”

And you are right I don’t understand your case and the reason is because you’ve told me nothing about how the accident occurred. As an example what did you trip over? How obvious was it to anyone with two eyes, over the age of three and who has a brain? Why didn’t you see what it was you tripped over? Had you been drinking alcohol or were you under the influence of narcotics? Where you in a rush and just failed to act to protect yourself? Liability in a trip-fall case is not likely to ever be an assumable issue. So when you ask me to do it and to value the case you ask an impossible question. Remember Iowa is a fault state meaning if you are 40% at fault you can collect only 60% of your damages. Once we determine the issue of liability we then must consider the injured person’s degree of fault and that will reduce the amount of damages to be awarded.

PART II - WHAT IS “FAULT” UNDER IOWA LAW AND HOW MUCH FAULT IS THERE

Fault for all parties’ totals 100% so if you are 25% at fault for the injuries then you get 75% of your damages. If you are 51% at fault you will get nothing. So knowing your degree of fault will assist me to decide if I even want a part of this case. I’m not in the business of jousting windmills for the fun of it. I have to make a profit or I’m out of business for the next client who will require my services, so earning a fee in yours is sort of indicative of staying in this business. I’ve been pretty good at that and have lasted over 32 years. God willing I’ll be here for another 10 assuming I don’t get stupid about case selection. Case selection requires me to meet and talk to you about the accident. Because like it or not the jury will have to like you and if they don’t you get zipped. Looking back to the issue of your percentage of fault requires me to know more about where you were coming from and going to, what were your carrying, what type of shoes were you wearing, what did you trip over, what color was it, how well was the area lit, what distractions if any existed, who was in the area, the degree of danger posed by the object, whether there were warnings, how clearly those warnings were communicated and your degree of sobriety. This information would start but not end the inquiry.

PART III - DAMAGES

Now shall we talk about damages? Okay let’s skim the surface. You say the medical bills are over $100,000, but is that really a fact? Were the charges $100,000, but the amounts paid by health insurance less than $100,000? Did a health insurance company pay the medical expenses?  If so is there subrogation or an ERISA lien? Were the amounts paid reduced and if so by how much? Was Medicare or Medicaid involved in paying bills? Are you a Medicare or Social Security Disability recipient; because if any governmental agency or ERISA entity had anything to do with paying these bills then they have to be repaid?

PART IV – LIENS, SUBROGATION, WORKERS’ COMPENSATION LIENS AND MORE

Were you at the hotel on your own personal time or for business purposes? If for business purposes there is the issue of workers’ compensation benefits and the lien payment creates. You can’t settle a personal injury case without getting the work comp insurance adjuster’s consent. Settle without their consent and the settlement is voidable.

PART IV – PROXIMATE CAUSE

Proximate cause is an easy way to assume your case right into the trash can. You can’t just assume damages flow from an injury without first proving proximate cause. Okay so you broke your arms, this is a serious injury. But why were the medical bills $100,000? If the medical expenses were increased because of something you did or didn’t do then fault can be assigned to you and as you’ve seen that will reduce any award.

Wow! Are you serious Attorney Lombard? No way!

Way Mr. Would Be Client. It is way more difficult than they tell you.

This is more complicated than you might think at first blush. They make you think it’s easy so when you sit on a jury you give the injured person very little and look for an excuse to award nothing. After all if it’s so easy to prove damages why wasn’t it done? They must be trying to fool us so we will give them nothing.

And how about the $100,000 figure, that’s an odd amount to me because never in 30 plus years of practicing personal injury law have I ever had medical expenses exactly an even number. Did you guess when you gave me that number? Or are you rounding it up or down?

Have I asked you about future medical expense, surgery and wage loss along with reduced earning capacity? No? Oh sorry, what about those issues, do you have the facts and medical and an economist’s opinion to back it up and help me to evaluate?

Hmmm…

No?

CONCLUSION – THIS TRAIN ISN’T EVEN LEAVING THE STATION

Oh well then the answer to your question is simple.

Zero. 

Your case is worth nothing.

In your hands it is worth the weight of that vein of gold laying 1,000 feet below the seas surface buried somewhere well below the surface of the Black Sea.

There is no "usual settlement" for any case and a slip/fall case is even more difficult to value without knowing how the accident happened and if you were at fault and the facts to assess the amount of damages; so go and hire a lawyer so you can get all you deserve. And if you don’t hire a lawyer you will still get what you deserve.

How difficult is it to prove a slip and fall case. 



Category: Property & Real Estate Injuries


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