How to Win a Slip and Fall Case
This winter, after I lost my footing and shattered my arm on an icy sidewalk, I knew I faced a grueling physical recovery. What I didn’t anticipate was the weeks of wrangling with an insurance company for what was ultimately a modest settlement. My slip-and-fall homeowners insurance saga offers lessons in case you, too, ever tumble to injury on snow, wet leaves, or another hazard.
My mishap happened in front of someone’s house on a January Minneapolis evening, as I was walking my twelve-year-old dog. The fall broke both the bones in my right lower arm, and a titanium plate and screws were required to put the larger bone back together. I lost about two months of work and a major gig, and I’m still having physical therapy to regain strength and range of motion in my hand and wrist.
After reviewing my claim for a few weeks, the insurance company said the homeowner wasn’t liable, and awarded me less than a fifth of the amount I sought. (I’ve omitted the name of the company, because I wanted this piece to provide advice and avoid any appearance of being a personal complaint about the particular insurer.)
What did I get wrong? I called personal injury attorneys and industry analysts to gain insights and to learn the best procedures for anyone who is badly hurt by slipping and falling on an icy sidewalk.
Establish if you can file a homeowner’s insurance claim
Falls on private property can be filed with the owner’s insurance company, assuming the property is insured (as is likely, since coverage is required by mortgage lenders). But so, often, are claims (like mine) that arise from a tumble on a sidewalk that’s adjacent to the private property.
That’s because the homeowner may have responsibility for the condition of the sidewalk, at least at certain times. Cities where snow is common typically require home and business owners to shovel the sidewalks around their property, and give them a set amount of time to do the job. In some jurisdictions, the same requirement applies to any other hazards, such as leaves, that might also be hazardous to passers-by, and even to the likes of uneven pavement. (For example, the Streets and Highways Code 5610 in California — where snow is a rarity in much of the state — requires property owners to “maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience…”)
In the Twin Cities, where I live, homeowners have an obligation to clear their sidewalks within 24 hours of any snowfall ending, says attorney Chris Messerly, a partner at Minneapolis-based Robins Kaplan. (Business owners get eight hours) In my case, the homeowners had significant ice on their sidewalk six days after the last snowstorm.
To find out the law in your area, Google the name of your town and state plus “snow removal rules” or, more broadly, “regulations for clearing sidewalks.”
Document the conditions and inform the property owner
As quickly as you can, capture a record of the conditions that contributed to your injury and get the wheels in motion to make an insurance claim.
Two days after the fall, my son photographed the icy sidewalk where I fell. He helped me write a letter to the homeowners, explaining what had happened and telling them that I wanted their homeowner’s insurance to pay my medical bills and lost earnings. (I didn’t ask to be compensated for pain and suffering.) Their insurance company contacted me and I answered a lot of questions.
“You may also want to alert the authorities,” says attorney Messerly. “Telling the city and having them ticket the owner can document the dangerous conditions.”
Don’t be surprised to be found at least partly responsible
Don’t expect the claims process to be straightforward. The question of liability is central to any slip and fall case—and it’s a complex legal area.
If you fall on someone else’s property, that person’s homeowner’s insurance should pay for your medical bills and lost wages; it may also offer you compensation for pain and suffering. That sounds straightforward. In practice, it often isn’t.
In Minnesota, for example, juries and insurance companies consider how much at fault each party is for an accident. In the upper Midwest, my neighbor’s insurer pointed out, and the risks of walking in the winter were well known. They felt that this meant that the accident was at least partly my fault, because I should have taken extra precautions for the season.
Minnesota uses a percentage system to assign fault. If you take an injury case to court or an insurance company, they’ll determine what proportion of blame belongs to each party. “It’s very unusual when a substantial portion of the fault isn’t assigned to the plaintiff,” says Bob King, an attorney at Cirisi Conlin in Minneapolis.
For that reason, you shouldn’t assume that an insurance company will accept your claim — even when the law seems to be in my favor, as it was in my case. According to the insurance company, the city ordinance requiring homeowners to clear their sidewalks down to the pavement and put salt or sand on anything they couldn’t scrape off meant that this homeowner had a duty to the city—but not to me. No duty, no liability. The insurer could pay me a $5,000 medical claims benefit that didn’t depend on finding liability, but that was all.
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Understand how insurance companies think
Insurance companies walk a fine line. They’re required to pay out legitimate claims, but must also deny claims that aren’t legitimate. “Insurance companies’ job is to take in premiums and pay as little as they can on claims,” King says. “That’s their duty to shareholders.”
That may seem unfair to those of us who make claims, but it’s the reality of insurers’ business and it shapes how they approach certain cases. “There are plenty of fraudulent claims around slip and falls, which is why carriers get a little jumpy around these cases. People see them as a way to get a little money,” says Christopher Boggs, executive director for risk management and education at the Independent Insurance Agents and Brokers of America in Alexandria, Virginia. This insurance company insisted on seeing my medical records, to make sure that I wasn’t blaming an injury on this icy sidewalk, when it was actually caused in some other way.
Insurance companies also know it’s very unlikely that a claimant would prevail in court. It’s difficult to win a slip and fall case in Minnesota, because at one time or another, pretty much every Minnesota homeowner—including most or all of the jury—has said, “Oh, that’s good enough” about an imperfectly shoveled sidewalk. It’s also easy for a defense attorney to pin the blame on the plaintiff. “The defense council can always say, ‘Why didn’t you watch where you were walking?’” says Mike Phillips of Phillips Law in Minneapolis.
For all that insurance companies aren’t inclined toward generosity, however, they should be knowledgeable and truthful about the law. Every attorney and industry expert I talked to for this story told me that the insurance company was mistaken (at least) when it told me that homeowners have a duty to the city, but not to me.
“That’s completely false and you should report it to the insurance commissioner,” Messerly says. “Their statement is based on either ignorance or intentional misrepresentation. That is clearly not the law in Minnesota. I practice nationwide, and I’m not aware that it’s the law anywhere.”
Indeed, an article from San Francisco attorneys Stimmel, Stimmel and Roeser supports that view, at least in California. “Note that the owner is liable for conditions of danger created by the owner even if on the public sidewalk,” the firm writes. The article cites Selger v. Steven Brothers, Inc. (1990), which held that “[a]n abutting owner has always had a duty to refrain from affirmative conduct which would render the sidewalk itself or use of the sidewalk dangerous to the public.”
Consider hiring an attorney
The reality for me — and others whose claims are denied, or at least disappointingly small — is that help may be required to fight the decision. One place to start is the department of insurance or insurance commissioner in your state, suggests Angel Conlin, chief insurance officer at Kin Insurance in St. Petersburg, FL. Each such office has an advocacy service that may help you navigate the claims process and, if need be, file a complaint with the insurer.
If you strike out with that government-assisted process, or want your own advocate from the start, you can hire an experienced personal injury attorney (find one via word of mouth or Google). Such an advocate can handle the paperwork and keep you from hurting your own case — by, say, inadvertently disclosing something or wording a statement in a way that the insurer might interpret as an admission of fault.
Attorneys typically take personal injury cases on contingency, which means that they only get paid if they win. A typical fee is one-third of any payout. If that seems steep, keep in mind that you don’t need a lawyer to present an insurance claim.
An attorney could also help you bring suit against the homeowner. The insurance company would legally step into the homeowner’s place, defending against the suit or paying the claim to the limits of the policy. Settlements are common, Messerly says. “I don’t think I’ve ever had to try a slip and fall case. Every one I’ve had has settled.”
For my part, I will report the insurance company to the state insurance commissioner, as Messerly suggests. I will also use what I’ve learned to ask the insurance company to take another look at my claim. I’m undecided about hiring an attorney for the job.
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