Can an employer be held legally responsible for the negligent acts of employees? While it depends on the facts, the answer is, sometimes, yes. In this sample demand letter, the claimant was hit in the face by a softball that was thrown or struck by employees who were playing on the company softball team. The employees were playing on company property. The claimant suffered mouth and dental injuries.
We are not your lawyer, and this sample letter is not a replacement for qualified legal advice. It is for instructional purposes only. If you think you have a personal injury claim, you should consider hiring an experienced personal injury attorney. This is especially true if the facts are complicated, your injuries are serious, or there are difficult legal issues involved. An attorney can guide you through the process and help you to maximize the value of your case.
24 Park Place
Seattle, WA 00000
October 15, 20xx
All-Safe Insurance Company
3400 Salmon Boulevard
Seattle, WA 00000
Re: Your Insured, Gorgon Mortgage Company
Claimant: Yolanda Mercurio
Claim No.: 4876-93
Date of Loss: June 13, 20xx
Dear Mr. Chen:
As I explained in my claim notice letter dated June 28, 20xx, I suffered serious and permanent injuries in an incident that happened on June 13, 20xx, as a result of the reckless behavior of employees of your insured, Gorgon Mortgage Company. ("Reckless" behavior sounds worse than "careless" behavior and potentially supports a higher demand.) This letter is my pre-filing settlement demand.
On June 13, 20xx at about 1:45 p.m., I had just parked my car in the outdoor parking lot of the Soundbite Shopping Center and had stepped out of the car when I was struck in the mouth by a softball. The softball came from Gorgon Mortgage Company property. It was thrown or batted by Gorgon employees who were members of a Gorgon-sponsored softball team. They were having a company-approved softball practice on Gorgon property.
The force of the ball stunned me and knocked me to the ground. At no point prior to being hit did I hear anyone yell any kind of warning. As I laid on the ground in severe pain and bleeding, I was at first unsure what had happened. Only later did I learn that I'd been hit in the face by a speeding softball.
My Injuries and Medical and Dental Treatment
When it hit me, the softball was traveling with tremendous velocity. Indeed, it had traveled about 30 or 40 yards before slamming into my face. The force of the blow directly on my mouth broke my front tooth and drove the broken tooth through my upper lip. (A graphic description of a nasty injury lets the adjuster know what the jury will hear if the case goes to trial.) I was knocked to the ground and was in terrible pain. There was blood everywhere.
A colleague drove me to the Puget Sound Medical Center emergency room. Fortunately, X-rays did not show any facial or jaw fractures. The treating doctor diagnosed me with an open blunt trauma injury to my upper lip and a broken front tooth. To close the wound, the doctor stitched both the inside (five stitches) and the outside (four stitches) of my lip. The enclosed photographs were taken the day after the incident and show the broken tooth, the wound, and the tremendous swelling in the area of my nose, upper lip, and mouth. (Be sure to take photos at or near the time of your accident to document the nature and extent of your injuries.)
My family doctor, Dr. Fiona Brown, removed the stitches after a week. But it took more than a month for the swelling and bruising to go away. I've also enclosed photos of my upper lip taken within the past week. As those photographs show, the wound has left an unsightly scar on the outside of my upper lip.
Dr. Brown says that although it might reduce somewhat over time, a scar will remain permanently visible. I'm very self-conscious about this scar. I can feel it and every time I look in a mirror, I see it. People I meet, while not intending to be hurtful, often stare at it. (If your injury is likely to be permanent or to leave you with permanent scarring or disabilities, be sure to say so in your demand letter. Permanent injuries—and especially those that leave visible scars on the face or neck or that cause some disability—will increase your damages for pain and suffering, emotional distress, and loss of enjoyment of life.)
I have consulted a plastic surgeon about revision of the scar, which I plan to have done as soon as I can. The plastic surgeon, Dr. Carol Gallagher, told me that the cost would be a minimum of $13,000 for an outpatient surgery center, the plastic surgeon's fee, and all related expenses. This cost is an element of my future medical damages.
My broken tooth was treated by my dentist with a temporary cap until the lip wound healed. Then a "permanent" cap was fitted over the tooth. The cap is uncomfortable, and it has affected what I can eat because of my concern for biting into anything hard.
Also, it is obvious that the cap is not a real tooth. Because the cap is on my front tooth, the way it looks causes me terrible embarrassment. Every time I start to smile I become self-conscious, thinking about my false tooth as well as my scar. (It's important to describe the emotional distress caused by an injury as well as the physical pain. You can get compensation for both.)
The problem with the false tooth will only get worse over time. It will discolor differently from my real teeth, will wear out with use, and will have to be replaced roughly every ten years for the rest of my life. I'm 31 years old now, which means I can expect to undergo replacement four times over the course of my life. Each replacement, according to my dentist, will cost about $1,500 in current dollars. At a minimum, then, I anticipate future dental costs of $6,000 related to this injury.
Also, because it is fitted over my broken tooth, there is the potential for movement, gum disease, and other future dental problems that can prove painful, inconvenient, disfiguring, and expensive. For this reason, my future dental costs likely will exceed $6,000. At this point, in the hope of reaching a prompt settlement, I'm willing to forego any future damages for dental expenses in excess of $6,000. That offer will be off the table if we are unable to settle and I must file a lawsuit. (Offering the adjuster a chance to save some money on future medical expenses is a good way to encourage a quick settlement.)
Gorgon Mortgage Company's Negligence
Because Gorgon provided a place on its property for company employees to practice softball—in a dangerous spot immediately next to a public parking lot—Gorgon is liable for my injuries and damages. Gorgon knew or should have known of the high probability that a softball would leave the field and strike a bystander in the parking lot. Your insured's behavior goes beyond simple negligence and borders on being reckless. (Here Yolanda argues that Gorgon was itself negligent for allowing its employees to practice softball in this location. A negligent party is, of course, legally responsible for its own negligence.)
In addition, under the circumstances, Gorgon is legally responsible for the negligent actions of its employees. They were practicing during the workday with the permission of your insured. Gorgon was willing to sponsor a company softball team because the company received some benefit from its sponsorship, even if that benefit simply was improved employee morale. (Here Yolanda argues that Gorgon is legally responsible for the negligence of its employees under a legal theory called "respondeat superior," sometimes also called "vicarious liability." In a case like this one, where the negligent conduct happened on company property, which was being used with company permission, it is more likely that a court will hold the company responsible.)
I've attached copies of all my medical and dental records and bills. This is a summary of my past and future medical and dental expenses:
|Puget Sound Medical Center ER (including x-rays)||$2,950|
|Puget Sound Emergency Physicians, LLC||$2,080|
|Fiona Brown, M.D.||$420|
|Elton Limpet, D.D.S. (past expense)||$3,770|
|Elton Limpet, D.D.S. (future expense)||$6,000|
|Scar Revision (total estimated cost)||$13,000|
My injuries also caused me to lose time from work. I am a self-employed graphic artist. For the three months immediately prior to my accident I averaged income of $4,804 per month, as my enclosed billing records indicate.
As a result of my injuries and the necessary treatments, I lost two days of work right after the accident, plus another three days during medical and dental treatments, for a total of five days. At $229 per day ($4,804 per month divided by 21 work days per month) my income loss for those five days was $1,145. I've estimated that I will lose an equal number of work days in connection with future medical and dental treatments, meaning that my total past and future loss of income from missed work days is $2,290.
In addition to lost work days, I was unable to go on any job interviews until my mouth had healed, the swelling subsided, and my tooth was fixed. As a result, my income for the following two months dropped to an average of only $850 per month, meaning I lost an additional $7,900 in income because of the incident.
The total of my past and future medical expenses ($28,220) plus my past and future lost income ($2,290 + $7,900) brings my total economic damages to $38,410.
Your insured negligently or recklessly allowed its employees to launch dangerous objects at or near a heavily-used parking lot, with no regard for the safety or welfare of those using the lot. As a result, I was seriously and permanently injured. I've described in great detail the pain and suffering, emotional distress, and lost enjoyment of life your insured's conduct has caused. This experience will be with me for life.
I am confident that if my case was presented to a jury, the jury would award me a sum equal to four times my medical expenses, past and future, to compensate me for my noneconomic losses. My noneconomic damages are $112,880.
I demand the sum of $151,290 ($38,410 economic damages plus $112,880 noneconomic damages) to settle my claims against your insured. I emphasize that this is a pre-filing demand. If I must file suit and take my case to a jury, I will ask the jury to award substantially more than this amount. This demand is an attempt to settle my claims against your insured. If I must file suit and the case goes to trial, evidence of this settlement offer will not be admissible at trial.
Please let me hear from you within 30 days from the date of this letter.
This sample letter is an adaptation of an excerpt from How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).