A major injury from falling on ice – A case study

The Professional Client

Our client, a physician in her early 60's, left work on a January evening to attend a fundraiser at a local restaurant.

It had snowed the day prior, approximately six inches.  Not an unusually large amount for a winter in the northeast.  The snow had stopped at around 4am.

The restaurant had a large parking lot, as it was the site of many big events.  It was reasonably well lit.

Unfortunately, it was not well maintained.  Despite being well aware that an event was taking place that evening, the owner had done a very poor job of clearing the lot.

Our client arrived at the restaurant and parked in the lot.  She got out of her vehicle, wearing her winter boots and carrying the shoes that she would change into once inside.  It was clear to hear that the lot had not been completely cleaned, however she had no choice but to try and carefully walk to the entrance.

She took three steps, and her left foot slid from under her, causing her to land awkwardly and shattering her femur.  She looked over to see a large patch of ice under the snow. 

Alone, she was able to pull her phone from her pocket and call her husband, who was on his way to meet her and who was able to call 911 for assistance.   An ambulance arrived and transported her to a local hospital.

The Aftermath

She underwent a relatively complex surgery known as an open reduction/internal fixation, during which several rods and screws were placed in her leg to hold the fracture together.

The recovery was long and challenging.  She never regained the full, pre-fall use of her leg.  She lost a significant amount of time from work as a result.

The Law

In New York, property owners may be responsible for an injury when they created a dangerous condition on the property, or knew or reasonably should have known that a dangerous condition existed for long enough that they could have remedied it.

In the context of winter weather, generally a property owner is not required to immediately clear up their lot/sidewalk/driveway during a snow storm.  Instead, they are given a "reasonable" amount of time to clear the area following a winter storm.  If, however, they fail to do so, and someone falls and gets hurt, they may be responsible. 

In this case, the snow event had stopped more than twelve hours before our client arrived on the site, more than sufficient time to allow the property owner to clear the lot.  More importantly, our client fell on a patch of ice that had been covered by snow, suggesting that the ice had existed for much longer.  This is a problem for the property owner.

In a case like this, the property owner has general liability property insurance, which is there to cover claims for damages in the event that someone is hurt because of the owner's negligence.  This is what occurred in this situation.

The Need For A Quiet Resolution

Our client was a professional.  She had no desire for a protracted, public lawsuit.  But she also knew that what happened should not have happened, and it impacted her life significantly.

The important factor in this particular case was maximizing our client's recovery while at the same time ensuring that the situation remained quiet.  As a result, we created a plan to attempt to resolve the case before filing a lawsuit.  This was critical, because the filing of a lawsuit makes the matter public.  This means that media outlets, among others, are able to see that the case has been filed, and write about it.  Generally this is not a significant concern – lawsuits are filed every day, and most of them are never noticed.  In this case, however, given our client's profession and position in the community, it was a realistic possibility that, if she filed a lawsuit, a media outlet would pick it up and write about it. 

Given these concerns, we proceed to go about our investigation quietly, by performing a forensic weather analysis, obtaining photos of the relevant areas of the parking lot, talking to any witnesses and obtaining our client's medical records.  Doing all of this allowed us to prepare the case in a way that would ultimately show the insurance company for the restaurant (who would be responsible for paying any settlement) that we would succeed if a lawsuit were filed, and that it was in their best interest to resolve the case prior to litigation.  The fact that our client did not want to file a lawsuit, and wanted to settle prior to litigation, was not something that we would disclose during negotiations.

The client treated for several months before a determination was made that the case was ready to be settled because the treatment had ceased.  Once it was, we prepared a thorough package of information to send to the insurance company, including our weather analysis, client's medical damages and our legal theories about why the company would be responsible if the case went to trial.

The insurance company recognized that it had a problem, and made an initial offer.  While that offer was rejected as too low, after several days of negotiations, we were able to obtain a quiet, confidential settlement for the client well into the multiple six figures.

The case was a “win” because the client got what she wanted.  The insurance company for the restaurant acknowledged responsibility.  The restaurant changed its policy with respect to clearing its parking lot when it was hosting events, and the client received compensation for her severe injuries without a public filing. 

Conclusion

Every case and client are different.  Sometimes it makes sense to file a lawsuit.  Other times it is the only option.  And other times it's not the best route.  It is not a one-size-fits-all assessment, which is why we have a very clear discussion at the outset of the case about the options, risks and benefits.  This better serves our clients and allows us to get more results like this one. 

If you have questions about an injury following a fall, contact us today.