If someone’s negligence causes you to slip, fall and get injured, then you may have a claim for pain and suffering damages. This article focuses on whether you can recover the pain and suffering component of damages in a Florida slip and fall case, and does not focus on the other damages that you may be able to recover if you slip and fall on a substance or debris at a premises in Florida.
This article does not apply if you only have a Florida workers compensation claim. However, this article does apply if you are hurt while working and you also have a personal injury claim for your pain and suffering (and other damages).
There is no guarantee that the owner or operator (or the insurer) of the premises will pay you for your pain and suffering as a result of a slip and fall. In Florida slip and fall case, the burden of proof to get awarded damages (and hopefully money) for your pain and suffering is very similar to the burden for a lost wage claim.
In a slip and fall case against a Florida business establishment, you must show that the owner or operator’s negligence (discussed further below) caused your injury.
Fun Fact: If you are injured due to the negligence of a cruise ship or its employees, then there is a high likelihood that this article will apply because most cruise lines including, but not limited to, Carnival, Royal Caribbean and others require a lawsuit to be brought in Miami-Dade County, Florida. This is pursuant to your passenger ticket.
What are some examples of business establishments? Stores, supermarkets, restaurants, malls, flea markets, malls, hotels, shopping centers are just a few examples of business establishments.
The owner or operator of a business establishment has a duty to use reasonable care to protect invitees from hazardous conditions on the premises of which he or she has actual knowledge or constructive notice. If the owner or operator breaches this obligation to use reasonable care, he or she is negligent.
So if you are are an invitee of a Florida business (e.g. store, restaurant, hotel, mall, supermarket, etc.) and the owner or operator had actual or constructive notice of the substance or debris upon which you slipped and fell, you may be able to get money for the pain and suffering that you experience.
Warning! While you should immediately notify the owner and operator of your slip and fall on the premises, under no circumstances should you give a statement (whether recorded or unrecorded) to the adjuster!
Even if the adjuster is as sweet as apple pie, do not give a recorded statement. You are not required to give a statement. The downside of giving a statement to the adjuster outweighs the upside of not giving a statement.
A statement can later be used against you even if it is unrecorded. Someone who just slipped and fell may be agitated, nervous or confused after the fall. You may not be thinking clearly when speaking with the adjuster for the premises’ insurer.
Think of a claims adjuster as Michael Jordan and you are trying to score a point on him. The overwhelming odds are that he will block all of your shots. If you are playing Michael Jordan up to 11 points, the game will be over really fast. You do not want your case to be lost before you are even finished getting your medical treatment.
If you have evidence to prove that the owner or operator had constructive or actual knowledge of the dangerous condition and should have fixed it (or given you a warning) before your slip and fall, then you may be able to make a claim for pain and suffering. But the pain and suffering component may still be reduced by one of the more than 38 factors that affect the value of a Florida personal injury case.
In Florida, the value of the pain and suffering component, lost wages and other non-economic damages (e.g. mental anguish, etc.) of your claim in a slip and fall case is reduced by your comparative fault.
You are walking in a Winn Dixie supermarket in Florida and you slip and fall on a water or another substance. You fracture your knee and cannot work for 4 weeks due to your injury. You have a good recovery. We will assume that the pain and suffering component of your knee fracture is worth $37,000.
The substance looked aged and had track marks going through it. You do not know how the substance got to be on the floor.
You did not notice anyone in the area for 20-25 minutes before you fell. The substance was in the middle of the aisle and you had taken 25 steps before you slipped on it. With these facts you may be able to prove that the substance existed for such a length of time that, in the exercise of ordinary care, Winn Dixie should have known of it.
Can you recover the $37,000 figure that I alluded to above for the pain and suffering component of this claim?
Maybe, or a fraction of it.
Note: I am keeping this example very simple. In real life, there are so many factors that are unique to slip and fall cases and thus affect the settlement value.
The adjuster may say that there is a 50% chance that you will not be able to prove that the store was negligent. He may also assign 50% (or more or less) fault on you for not walking more carefully. In Florida, you have a duty to pay attention when you are walking.
Tip: A decent argument, if true, to the adjuster is that there were coupons throughout the aisle and you were distracted. You can also argue that God put our eyes in our head so we can see the big picture. If God wanted us to be staring at the floor, he would have put our eyes in our knees.
With the above mentioned reductions for difficulty proving negligence and your comparative fault alone, let us calculate the pain and suffering component of the claim. I will use the following abbreviations:
“P & S” as an abbreviation for pain and suffering.
“% negligence” is shorthand for the percent chance that a jury will find the store negligent.
“Your % of negligence” is shorthand for your percentage of fault.
So here is the formula…
Pain and Suffering Component = (Full P & S) x (% negligence) x (100%- Your % of negligence)
Now above I said we will assign $37,000 to your fractured knee. We are assuming there is a 50% chance that a jury will find the store negligent, and there is a 50% chance that a jury will think that you were not looking where you were walking.
So let’s now plug in the figures…
Pain and Suffering Component = (Full P & S) x (% negligence) x (100% – Your % of negligence)
Pain and Suffering Component = ($37,000) x (50%) x (100% – 50%)
Pain and Suffering Component = $9,250
Then the adjuster value your pain and suffering at $9,250. The good news is that you may also have a claim for medical bills and lost wages but I won’t get into those here.
Tip: While slip and fall cases are tough, Florida slip and fall law allows you to recover for your pain and suffering even if you are over 50% at fault. This is more generous to injured people than the law of many other states.
Let’s take the same example above except we will assume that the store was 75% negligent and you were 50% at fault. Then you would be able to recover 37.5% of your pain and suffering, which would amount to $13,875 [$37,000 x 75% x (100%-50%)]. You may also be able to get money for lost wages and your medical bills but that is outside the scope of this article.
You should send all your medical records and bills to the adjuster immediately after you receive them. Be sure to get written delivery confirmation and receipt confirmation. I like to get delivery and read receipt confirmation on Microsoft Outlook (the email that I use). I also may fax the medical bills and records, and send them certified mail return receipt requested.
The adjuster needs your medical records and bills to document his or her file and get authority (money) to which he or she believe you are entitled. You want the adjuster to set the reserve as high as possible quickly.
In a typical pain and suffering claim, the adjuster takes into account his or her years of experience evaluating slip and fall cases and recent local jury verdicts to determine how much your pain and suffering is worth.
Pain and suffering is one of the most difficult components of a slip and fall to calculate. It takes years of experience of handling these types of cases to get a grasp on it. Trying to become a guru in understanding pain and suffering values by looking around the internet will not do you justice.
Time Limit to Get Your Pain and Suffering Paid in a Slip and Fall Case
A personal injury claim to recover money for you pain and suffering is based upon negligence. Therefore, your lawsuit must be filed within the same time limits that apply to Florida negligence claims or be forever barred. Because of this, it is very important that you consult with an attorney immediately if you wish to preserve your right to sue.
Other than the aforementioned time limit to sue, there is no deadline within which you must get proof of your pain and suffering to the adjuster. You should wait until you are finished getting all of your medical treatment before you settle your slip and fall case.
No Cap on Amount You Can Be Awarded for Pain and Suffering
There is no cap on the amount of money that a jury can award you for the pain and suffering component of a Florida slip and fall claim. But the award should be fair in light of all the circumstances.
Check out some of the many Florida injury cases that we have settled, including but not limited to car accidents, slip and falls, and cruise ships accidents. We want to represent you if you were injured in an accident in Florida, on a cruise ship or boat. If you live in Florida but were injured in another state we may also be able to represent you.
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