21566 Riverside Drive
Los Angeles, CA 00000
September 15, 20xx
Roger de la Rue
Twentieth Century Insurance Adjuster
6400 Century Boulevard
Los Angeles, CA 00000
Re: Your Insured, Broadmart Stores
Claimant: Wanda Shore
Claim No.: 93-1033 BS
Date of Loss: January 13, 20xx
Dear Mr. de la Rue:
As I explained in my claim notice letter dated February 11, 20xx, I was injured in a fall on January 13, 20xx in the West Hollywood Broadmart Department Store owned and operated by your insured, Broadmart Stores. This letter is my pre-filing settlement demand.
I fell while trying to make my way down some stairs in the women's shoe section, where I had been shopping. I lost my balance stepping down to the third step. As I began to fall, I recall reaching out with my right arm, trying to grab a handrail or anything else to catch myself. But there was no handrail available. I landed on my right arm, shattering my elbow. (Wanda describes her elbow as "shattered" rather than simply "broken" to establish the seriousness of her injury, which plays a big part in the settlement value of a personal injury claim.)
The pain was immediate and unbearable. I felt nauseous and was afraid I would pass out. Another shopper, whose name I do not recall hearing (but who I'm sure is identified in the store's incident report) came to my aid. At one point she said, "These stairs are awful. I wish they'd get rid of them." If we are unable to settle and I must file a lawsuit, I will, of course, seek the name of this witness in discovery. (A good demand letter helps to establish your credibility, and these last two sentences illustrate how. Wanda lets the adjuster know: (1) that Wanda is aware of a witness who made a statement unfavorable to the store; (2) that Wanda is aware that the store created an incident report regarding this fall; and (3) that Wanda will get the witness's name should a lawsuit be necessary. For more information, check out Discovery in a Slip and Fall Lawsuit.)
My Injuries and Medical Treatment
Immediately after the fall, I was taken by ambulance to the Mount Pleasant Hospital emergency room. The pain continued to be intolerable and I begged for pain relief. The doctor ordered Demerol, a powerful narcotic painkiller, to be administered through my IV line.
X-rays showed that my upper arm bone was broken into several pieces at the elbow. The orthopedist on duty said I would need surgery and put my arm in a temporary cast. The hospital discharged me home with a prescription for more Demerol to take orally. (This description leaves no doubt that Wanda's injury was very serious and extremely painful, factors that help to prove damages.)
The next day, I went to see Dr. Barton Groback, an orthopedic surgeon, but my arm was so swollen that the doctor could not examine it. Dr. Groback prescribed more pain medication, and ordered me to remain in bed for the next two days with my arm iced and elevated to reduce the swelling. I was in so much pain that all I could do was stay in bed. Even the slightest movement brought on excruciating pain.
To make matters worse, the prescription pain medicine didn't agree with my stomach and left me nauseated. The stomach upset was so bad that I only took the prescribed painkiller when I could not bear the pain. I used over the counter ibuprofen instead, which provided little relief. The narcotics left me in a drug-induced, semi-conscious haze; I didn't sleep for three days. (Wanda describes in detail the discomfort she experienced from both her injury and the powerful painkillers she had to take. Being forced to choose between extreme pain and terrible nausea illustrates how awful her ordeal was. The pain and emotional distress caused by treatments and medications prescribed for injuries are compensable damages, too.)
Two days later I returned to Dr. Groback, who took more X-rays and scheduled me for surgery the next day. Dr. Groback operated on January 17, 20xx, using a plate and several screws to put the pieces of my arm bone back together. I've included X-rays of my arm before and after surgery to show the extent of my injury and Dr. Groback's surgical repair.
I spent two days in the hospital, then another week in bed, all in great pain. My arm was in a cast for eight weeks, during which I had to hire an in-home care provider just to care for myself. I needed assistance with all activities of daily living: bathing, personal grooming and bathroom care, dressing, preparing meals, housekeeping, laundry, and more. (Costs for skilled nursing or semi-skilled in-home care are recoverable as damages. Be sure to keep good records, documenting the number of hours of care, types of care, and out-of-pocket costs.) For most of the eight weeks that I was in a cast, I was forced to stay around the house. Because I am right-hand dominant, even things I could do on my own required much more time and effort.
After the cast was removed, I began occupational therapy treatments to regain movement and strength in my arm. I went to therapy for three months, and since then I have been doing daily exercises given to me by Dr. Groback.
The first month of therapy was awful. The therapist had to physically force my elbow to bend and straighten to regain range of motion, which was unbearably painful. After each therapy session I went home, took ibuprofen, and laid in bed with my elbow in an ice pack. (Again, Wanda takes care to describe her experience. Post-surgical therapy like this can be very unpleasant; Wanda describes the pain she experienced early on as the therapist worked to help regain range of motion in the injured arm.)
Despite all the therapy and the exercises, however, I still have much less strength and range of motion in my right arm than before the accident. According to my therapist, I've lost about fifteen degrees of flexion (bending) and about five degrees of extension (straightening) in my right elbow compared to my left.
Dr. Groback says that I will have to keep doing the exercises just to keep my arm at its present level, but that I will never recover full use of it. (Be sure to describe the nature and extent of any permanent injury or disability, as Wanda has done here.) He also says that over time I am likely to develop arthritis in the elbow joint, making it even less movable and more painful. (If future complications can be expected, be sure to discuss those as well. Future damages are recoverable in the same way as past damages. Learn more about how long-term injuries affect the value of a claim.) In short, my injuries and disabilities are permanent and can be expected to worsen with age.
Broadmart Stores' Negligence
A few weeks after the accident, I hired a private investigator with experience in building code compliance to examine the stairs on which I fell. Under the circumstances, my investigator, David Culley, was not able to do a complete inspection, but there will be time enough for that should this case end up in court. Mr. Culley reports that in four separate ways, the stairs are unreasonably dangerous to customers.
First, the lack of handrails is a violation of the law. The Los Angeles County Building Code (Code) Section 1225 requires that all commercial stairs have handrails every 88 inches. (Violation of an applicable building code may be negligence per se, which will make it easier to hold a commercial property owner responsible for your injuries. In a premises liability case like this one, you should be sure to mention all known building code violations.) Because this stairway is more than 11 feet wide, it should have had handrails on each side and one in the middle. It had no handrails at all. At my age, 71, I always use a handrail when one is available, and in this case a handrail would have prevented a serious fall.
Second, the Code requires that riser heights be the same to within one-quarter inch. The riser heights of the second and third stairs, on which I fell, appeared to Mr. Culley, based on a visual inspection alone, to differ noticeably. Again, if I am forced to file suit, we will undertake a more thorough investigation of this issue in discovery. This Code violation proved dangerous because when I came down the stairs, the third step down did not meet my foot at the same point as did the previous step, throwing me off balance. (Wanda specifically explains how the property owner's building code violation caused her accident. Learn more about a store's liability for a slip and fall accident.)
Third, as the enclosed photographs show, the color of the carpeting contributed to the danger. The third step is covered with the same dark red carpet used on the floor at the bottom of that step. But the platform and the first two steps are covered in white carpet. Looking down onto the red third step, it is difficult to see that it is a step and not the beginning of the floor. The third step should have been carpeted in white like the other two.
Fourth and finally (for now), display spotlights set up around the stairs shine directly into shoppers' eyes as they come down the stairs. This bright light is very uncomfortable and makes it extremely difficult to see the steps clearly.
For all these reasons, the stairs presented a dangerous condition and caused me to fall. The Code violations alone establish the store's liability. When the other factors are added, it becomes even more clear that your insured is solely responsible for my fall and resulting injuries. (If Wanda files her case in court and it goes to trial, a jury will probably find that Wanda was partially at fault. A finding that the claimant was "comparatively negligent" is common in slip and fall cases. At this point, though, arguing that the store is solely liable is a reasonable negotiating tactic. You should not start negotiations by admitting that you're responsible for your own injuries.)
I've attached copies of all my medical records and bills, including copies of X-rays. Here is a summary of my medical bills to date:
|Osprey Ambulance Service
|Mt. Pleasant Hospital (E.R.)
|Barton Groback, M.D.
|Mt. Pleasant Hospital (surgery)
|Flexall Occupational Therapy
|Best Home Care, Inc.
|X-rays and labs
As mentioned above, Dr. Groback believes that over time, traumatic arthritis will develop in my elbow. If that happens, he will prescribe future occupational therapy to try to maintain range of motion and diminish my pain. I'm estimating these future medical costs at $2,120, or slightly more than half of my past occupational therapy charges. This number is conservative and does not include additional charges for consultation with Dr. Groback.
In addition, at this point I've not made any effort to engage a life care planner in order to quantify future out-of-pocket costs for in-home assistive care with activities of daily living. I will, of course, do so should a lawsuit be necessary. (In a personal injury case where future medical and other expenses will be significant, the claimant is likely to hire a medical professional known as a "life care planner" to itemize future care needs and to estimate the costs of that care. Wanda has not yet had a life care plan done because this is a pre-filing demand and getting a life care plan is time consuming and expensive. Wanda lets the adjuster know that a life care plan will be part of the case should it go to trial. In a case with substantial future care needs, a life care plan is an essential part of proving damages. If your case involves significant and costly future care, you should consider hiring an experienced personal injury lawyer to handle it.) Including future medical costs, my economic damages total $50,100. For ease of discussion, I'm rounding that figure down to $50,000.
I've described in considerable detail the pain and suffering I experienced from the fall and my resulting treatment. I've also documented the permanent and progressive nature of my disabilities.
In addition, my injuries and limitations make me fearful for the future. For a senior like me, the threat of losing my independence—my ability to live alone, to care for myself, and to tend to my own activities of daily living—is a real fear. Because of your insured's negligence, I've gotten a taste of losing that independence, and it is terribly distressing and frightening. My injuries and limitations are going to get worse over time, so it isn't a question of if I'll become dependent on others, but when.
For now, it is enough to note that my future pain and suffering, emotional distress, and loss of enjoyment of life are noneconomic damages for which your insured is responsible. Because your insured has violated the Los Angeles County Building Code and has been negligent in several ways, I believe a jury would compensate my noneconomic losses at five times my medical expenses. Thus, my noneconomic damages are $250,000. (A multiplier of 5 times in a slip and fall case is aggressive. But Wanda has some favorable liability facts, including two building code violations. And Wanda's injury was severe and painful. In addition, future complications, meaning future treatments, pain, and suffering, are likely. For all these reasons, it makes sense for Wanda to start with a large figure and negotiate from there.)
I demand the sum of $300,000 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.
In order to prevent the running of the statute of limitations, I must file suit, if necessary, by the end of this calendar year. Time is of the essence. Please let me hear from you within 14 days from the date of this letter.
Very truly yours,