My Actual Case: $300,000 Settlement for 2 skin grafts from slip and fall. Settlement is before deduction for attorney’s fees and expenses. Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.
I have settled many Florida slip and fall cases where my client was seriously injured in Florida or on a cruise. It is also one of my many lower leg injury settlements and settlements for someone who was injured while shopping in a supermarket.
Settlement Date: February 2014
Claimant’s Attorney: Justin Ziegler
Insurer for Supermarket /Third party administrator
Crum & Forster
OptaComp adjusted the claim for Sedano’s Supermarket.
Plaintiff was 62 year old male, on short and long term disability at time he slipped and fell. Prior to date of accident, Plaintiff was a respiratory technician who was employed with 1 company for 20+ years.
On October 4, 2011 my client, who was 60 years old at the time, was on crutches shopping at a supermarket in Miami, Florida. He was on crutches due to the fact that he was recovering from a prior surgical repair of his Achilles tendon.
He had torn his Achilles tendon while playing recreational soccer before the subject incident.
Our client fell when he was turning the corner at the “bagger area” at the checkout counter. You can see the actual incident scene in the picture below. We argued that there was a substance on the floor. The picture below is from the actual case.
We argued that the shopper was not comparatively negligent because he was turning the corner and did not have time to see whether there was a foreign substance on the floor. 911 was called and fire rescue came to the scene, and our client was taken by ambulance to the hospital.
After the accident, the supermarket denied liability and sent us a video which began at 1:01:38 p.m. The video began 1 minute after a timesheet – later produced in litigation – which was signed by a supermarket employee and stated that the floor was cleaned.
We planned on taking the deposition of the supermarket employee who was allegedly in charge of the video surveillance at the grocery store. We wanted to know why more video (prior to the fall) was not saved.
We did ask the supermarket to preserve the video, albeit, following the incident. This is a form letter that we use.
The fall happened at approximately 1:09 p.m. We argued that the supermarket could have very easily have saved the extra video for the hour or so before the fall.
I claimed that they did not because the video would show that the floor was not inspected within a reasonable amount of time prior to the fall.
I alleged that if the supermarket employee inspected the area in the 15 minutes prior to 1 p.m., the supermarket should have saved this video from 1:00:00 p.m. through 1:01:37 p.m. as it would help the supermarket show that the floor was inspected the floor shortly before the fall.
The video that the supermarket produced showed a substance – that we believe appeared to be dirty – on the floor from the beginning of the video (that we were given) until a store employee mopped up the substance. We argued that the video shows that the substance was on the floor for at least 9 minutes or so before our client’s slip and fall.
The supermarket’s assistant manager testified in deposition that a substance – like the one shown in the pictures that were taken by the supermarket following the fall – should be cleaned if it was on the floor.
After our client’s fall, a supermarket employee is seen on the video mopping up the area where our client fell. We argued that if there was no dangerous substance on the floor after the fall, then the supermarket would not have been mopping the floor where the fall happened.
We argued that supermarket had a negligent mode of operation of using plastic Tupperware containers – with no tops on the container – that contain water and a sponge at the checkout counter.
We claimed that the employees who bag the groceries place their fingertips on the sponge in an effort to moisten their fingers so that they can separate the bags. We claimed that water can easily spill onto the floor and create a dangerous condition.
We argued that supermarket could have spent a minimal amount of money and used a fingertip moisture – like other supermarkets in the area such as Publix use – that would not spill onto the floor.
We argued that supermarket was also negligent in allowing a non-employee to bag groceries at the exact location of the fall. Should this case not have settled at mediation, we would have deposed this nonemployee and we imagine that he would have known little – if anything – about inspection procedures at the subject store.
A supermarket employee signed the inspection log at 1:15 p.m. stating that he had inspected the floor from 1 p.m. to 1:15, yet he is not seen anywhere on the video for the 14 or so minutes before the fall.
There was only one 15 minute time period, from 1:15 p.m. to 1:30 p.m., on the video which the supermarket provided to us, which corresponded to a 15 minute time period on the maintenance log signed by a supermarket’s employee.
However, during this time the employee was not seen in the top portion of the video. In deposition the assistant store manager stated that inspecting the store consists of inspecting the top portion that is seen on the video.
The assistant store manager also agreed that the employee – who signed the inspection log at 1:30 p.m. – was not seen in the top portion of the video.
We alleged that as a result of this incident our client underwent 2 skin grafts to his Achilles tendon. My client understood the importance of taking pictures of his injury. A picture of his injury after a skin graft is below.
Our client also had a herniated disc but we did not have a doctor who related the herniated disc to the incident. The defense doctor really did not talk about the herniated disc in his 6 page medical report.
Our client had numbness, tingling and burning pain in his outer thigh and a doctor – that the defendant used to examine our client – said it may be meralgia paresthetica. That doctor said he does not know how the thigh numbness may be related to the accident. Our client’s neurologist did not provide documentation that related his thigh numbness to the incident.
He had low-grade partial hamstring tears on each leg, but the defense doctor believed that the tears were more related to our client’s previous soccer activity than the fall.
Our client had health insurance that paid about $75,000 to his medical providers. Pursuant to the tightly worded contract, the self-funded health plan demanded that we repay them from the settlement, which is known as subrogation and/or reimbursement.
Our client also owed the hospital about $14,000 for medical bills that were not covered by his health insurance.
Part of our lawsuit against the supermarket was to recover these medical expenses, which were close to $90,000.
Our client was receiving short term disability (STD) and long term disability (LTD) benefits from Prudential before the fall. He had private disability insurance, through his employer, which paid for 60% of his lost wages. This was a blessing for him.
Prudential asserted a lien on the settlement. Although Prudential never gave us a concrete lien amount, they wanted to be reimbursed for the entire disability period which would have come out to somewhere around $40,000 or so.
We claimed lost wages of $60,000 or so, which was a combination of the $40,000 that Prudential paid to our client and the 40% ($20,000) in lost wages that our client was not reimbursed under his disability policy.
We kept writing to Prudential and telling them that they were not entitled to a lien because, in part, our client was not made whole.
After numerous emails as well as filing a complaint with the Department of Insurance, Prudential agreed to waive their alleged lien which resulted in a potential savings of $40,000 or so to our client. We fought Prudential hard on this even though we do not make any additional money when trying to reduce a lien.
Supermarket Blamed the Shopper
The attorney(s) for the supermarket argued that our client was at fault because he:
1. Was shopping while on crutches, with a bag in his hand, and did not ask for assistance prior to the fall.
2. Was using the crutches improperly (according to a physical therapist’s – listed as an expert for the defendant – report).
3. Should have been paying more attention.
The supermarket also made the following arguments:
4. Nothing was on the floor that could have caused the fall.
5. Only had 9 minutes of video existed prior to the fall to attempt to show constructive notice.
6. Home health records show that my client was unable to leave his home without assistance days before the fall.
7. A store employee signed a maintenance log saying that the floor was inspected 9 to 24 minutes or so prior to my client’s fall.
8. A store employee inspected the floor prior to my fall.
9. Our client’s medical treatment was a result of the Achilles tendon surgery that occurred before the subject fall. The defendant had our client examined by an orthopedic doctor, Dr. Keyes. He said that the shopper’s medical treatment was a result of one of the risks of the initial surgery – that occurred before the fall – and was not caused by this accident.
Some of the things that helped us reach a settlement for $300,000 were:
1. Crum & Forster, the insurer of the supermarket, has a reputation for being one of the best insurers in Florida in terms of making a fair offer in a personal injury case. There are many other insurers in Florida who probably would have offered much less than Crum & Forster.
4. My client testified in deposition that the water looked “smudgy, dirty, had footprints and tracks going through it.” This helped us argue constructive notice, which was necessary in this case because we were unable to prove actual notice.
5. My client had $130,000 or so in economic damages, primarily composed of lost wages and medical bills.
6. For purposes of the pain and suffering component of value, I believe a skin graft to have a settlement range of $50,000 to $75,000 and perhaps more depending on the resultant disability.
In this case, the shopper had 2 skin grafts. If the adjuster assigned $75,000 to each skin graft, that would mean that he assigned $150,000 to the pain and suffering component of the claim. I think the adjuster used the upper end of the range because my client was out of work for approximately 2 years.
If we add $150,000 as the pain and suffering component to $150,000 in lost wages and medical bills, then we arrive at $300,000 which is the amount of the settlement.
In this case, unless my client was willing and able to file a lawsuit yourself and go through the litigation process, including having his deposition taken, he needed an attorney to represent him. He spoke Spanish so this would have made it necessary for him to have an attorney to properly serve and respond to discovery (legal forms and pleadings).
The case settled a 2 or so months before the trial date. It took several edits by the defense lawyer and I to agree upon the proper language in the release of claims.
We estimate that we did the following in this case:
- 400 emails were sent and received in this matter. This includes interoffice emails.
- Over 50 letters and faxes were sent and received.
- Approximately 175 phone calls were made and received.
- Over 25 separate court filings of documents by the parties.
- More than 1,000 pages of medical records (including records for pre-existing medical treatment) and medical bills were exchanged between the parties.
- Approximately 20 hours of deposition testimony was taken.
- We spent over $3,000 in costs in this matter.
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