QUESTION:
Several months ago I fell in a department store, shattering my shoulder and re-injuring my left elbow. Both of these injuries required surgery, with a good possibility of more surgery necessary. Insurance covered a good portion, but I’m already on SSA help with what’s left. How likely are falls in stores settled?
ANSWER:
Ordinarily the burden of proving negligence is on the plaintiff. An exception for this is the doctrine of res ipsa loquitor wherein the burden effectively shifts to defendants to absolve themselves from responsibility or to show that some other defendant or event caused the injuries provided that certain conditions are met. As a general rule, res ipsa loquitur is ill-suited to slip-and-fall cases. No inference of negligence can arise simply upon proof of a fall on the defendant’s floor. This is so even when the fall is associated with a slippery object, “because objects all too often appear on floors without sufficient explanation.” [Brown v. Poway Unified School Dist., supra, 4 C4th at 826–828, 15 CR2d at 683–684]. However, mere “superficial” control by plaintiff does not preclude application of the doctrine if defendant had underlying control or the right of control. For example, a person injured from falling off a broken chair in a restaurant has “control” of the chair while using it; but the restaurant has “exclusive control” in terms of construction, inspection or maintenance of the chair; thus, res ipsa applies so long as it was the condition of the chair, and not its use, that caused the injury. [See Rose v. Melody Lane of Wilshire (1952) 39 C2d 481, 486, 247 P2d 335, 338]
Efforts toward settlement normally should begin as soon as the initial fact gathering is complete and all pertinent records and reports have been obtained such as those pertaining to medical, wage loss, etc., and that the claimant’s condition has stabilized to the point that a credible medical prognosis can be made. Filing suit in itself rarely puts pressure on tortfeasors to settle. For instance, most routine personal injury cases (rear-ender auto accidents, relatively minor “slip and falls”) will settle whether or not a lawsuit is filed. Thus, all other things being equal, unless the statute of limitations is about to run, claimants need not initiate litigation before commencing settlement discussions; doing so may simply run up unnecessary attorney fees and costs such as drafting the complaint, serving process, etc., and court costs (filing fees). I suggest that you seek personal assistance from a lawyer in order to help you in settling your personal injury claim.
