Suing for premises liability – a slip and fall injury, stairway accident, etc. -- will only make sense if the value of the case is high enough, regardless of the injured person’s personal feelings. In other words, an essential consideration is this: if after the winning the case and paying his or her attorney, will the plaintiff walk away with enough money to justify the painful litigation process? Read on to learn more.
A lawsuit for a slip and fall injury -- or any other type of premises liability case – is usually filed when the two parties can’t reach a settlement. The injured party might be demanding too much money, or the defendant, usually an insurance company, just doesn’t want to offer a reasonable settlement amount. In either case, the lawsuit starts the process of resolving the case through the court system, and may ultimately put the case in the hands of a jury. This is risky for both sides, because it’s an all or nothing scenario – one side wins, the other loses.
Settlement, on the other hand, is a mutually agreeable outcome. The injured person accepts a little less than they think their case is worth and the insurance company pays a little more than it wants. It’s always best for either side to reevaluate the settlement demands and offers to make sure they are not acceptable before committing to the risk of trial.
If your premises liability case fails to settle before trial, estimating the potential recovery with any degree of accuracy is quite difficult for one main reason: at trial, it will most likely be a jury that ultimately decides just how much money the defendant must pay you, the injured plaintiff.
Some damages, like medical bills and lost wages, are easier to calculate (and are therefore also easier to predict). Although a jury has discretion, if they find the defendant liable, they will typically base “concrete” damages like medical bills on the amount the plaintiff demonstrates he or she has paid and/or will continue to pay.
For subjective, less concrete damages like “pain and suffering,” predictions are at best an educated guesses based on awards in similar cases in the past. Because every case and every jury is different, even the best analysis will still only predict pain and suffering damages within a broad range.
In cases involving serious injuries and issues like physical disfigurement, the “subjective” damages are potentially very high and that much harder to pin down. That opens the possibility of the plaintiff and defendant’s attorneys putting very different values on the case and making settlement that much more complicated. A smaller claim, without many complications, is more likely to be subject a reasonable range that both sides can agree on in a settlement.
The other major role of the jury, of course, is to determine whether defendant is liable to the plaintiff at all. If the case does go to trial, the judge will tell the jury what duty of care the defendant owed to the plaintiff and the jury will decide if the defendant breached that duty. The jury will be given instructions on how to make that determination -- usually in the form of yes and no questions. But ultimately, they will decide if the way the defendant maintained his or her property was reasonable or not, and whether it lead to the plaintiff falling or otherwise being injured. Generally, if the defendant was acting reasonably, the plaintiff will not win the case. So, aside from the extent of damages, another factor both sides will consider is how strong the plaintiff’s case is, i.e. does she have very convincing evidence the defendant was unreasonable or not? If potential damages are high, but the evidence is weak, the valuation of the case will be lower.
The nature of the injury or injuries suffered by the plaintiff is, of course, key. What is also key, however, is how those injuries affect a particular plaintiff. For example, let’s say the plaintiff breaks his wrist after falling down a flight of stairs and is left with permanent damage. If the plaintiff was an avid golfer, but is no longer able to play, his damages based on “loss of quality of life” will likely be higher in the eyes of a jury than a similarly injured plaintiff who rarely makes it out of the house.
A less subjective aspect is the plaintiff’s ability to earn a living before and after the injury. If a plaintiff earned a good income with many working years ahead of her, but after the injury will no longer be able find work in that particular field and/or earn the same income, damages would include the difference between what she would have earned without the injury and what she will likely earn after the injury. If a plaintiff’s ability to earn a living is unaffected by the injury, the value of the case with a similar injury will be substantially less.
Where the plaintiff’s suit was filed is important because residents of that particular county will make up the jury pool. With some exceptions, it is generally true that juries in rural areas award more conservative damages than juries in urban areas. Generally, suit is filed in the county where the injury occurred. However, depending on the case, there may be other filing options, such as the county where the defendant or plaintiff live, or where a corporate defendant’s headquarters are located.
Keep in mind that if there is a weak connection between the case and the county where the suit was filed, the court will dismiss the case or ordered it transferred.
If a plaintiff’s attorney has a track record of accepting low settlements and never going to trial, the defendant will place a lower value on the case. This means that the defendant, particularly an insurance company, will be more willing to hold fast at a low settlement offer knowing that the plaintiff’s attorney would rather settle than actually conduct a trial.
If the defendant knows that the plaintiff’s attorney is ready and willing to go to trial, the defendant’s valuation of the case will go up. This is why it is important for an injured plaintiff to make certain that his or her attorney is not someone who routinely does very little work on a case and convinces clients to accept low settlement offers. Keep in mind, however, that it may be that one attorney handles the pre-trial litigation process and hands the case over to another should the case go to trial. Bottom line, the plaintiff should check his or her attorney’s track record, because the defense certainly will.