Injury from slipping and falling on frozen corn kernels...

by Jean
(Buffalo, NY)

I slipped and fell on crushed frozen corn kernels in a major supermarket chain on 8/3/15. I was badly shaken up and the managers buzzed around me keeping all witnesses at bay. I went for medical care that day to rule out a fracture in my knee. I sustained bruising and abrasions to my wrist, a sprain in my gluteus muscle and a deep knee contusion in my already compromised knee.

I was told it would be 2-3 weeks for the contusion to resolve. I was unable to extend my knee and walk normally for 12 days due to severe pain. Day 13 it started to resolve. Since that time my femur is slipping on my tibia daily, whereas prior to the fall it was an occasional occurrence.

I know this is a small claim. My medical bills thus far are only $372. I am not looking for a windfall, just a fair settlement with the insurance company. They are playing hardball with me and their second offer was for $750, which I refuse to accept.

The adjuster has screamed at me on the phone and purposely calls me very early in the AM when I have asked her not to. After she screamed at me with 2 different calls I contacted her supervisor who is backing her up. Isn't this harassment?

I am willing to settle for $1500 after doing my homework - the value of the claim. Her supervisor obviously sides with her and now he has given me a veiled threat by telling me that the $750 offer was good for one week or they would rescind it. He has admitted that the full value of the case is what I am asking for, but then said the supermarket was not aware of the spill and therefore they will stick to the second offer.

My only option if this company does not agree to negotiate with me (they will not, their way or the highway) is to go to small claims court. They refuse to provide me with copies of depositions and the film of my fall, stating it is the property of the insured. What are my rights? What are my options for resolving this? Thank you.

Visitor Question:
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ANSWER for "Injury from slipping and falling on frozen corn kernels...":

Jean (Buffalo, NY):

You certainly have a legal right to file a lawsuit against the company in small claims court. To learn more, read these articles about small claims court. To access the forms and additional information required to file a small claims lawsuit in New York State go the NY Courts website.

Here's a Guide to Small Claims Court procedure in New York cities, towns and villages.

The appropriate venue in the City of Buffalo for filing a small claims lawsuit is:

Buffalo City Court Building
50 Delaware Avenue (7th floor)
Buffalo, NY 14202
Courtroom: Part 15 (7th floor)
Phone: 716-845-2663

The maximum amount ("jurisdictional limit") you can sue for is $5,000. Your clam is obviously less than the jurisdictional limit.

At this point the company is within its rights not to disclose to you a copy of their video, or even let you review it. They are also not required to give you copies of statements made by witnesses or company personnel.

By "depositions," you may be referring to the statements taken by the company. In most cases, depositions are taken by attorneys of parties and witnesses to an event, civil or criminal. Depositions are normally taken under oath.

While the company may not now be cooperating, if you file a small claims lawsuit you will have a right to have a subpoena issued to the company for a copy of the video, and of the witness statemets. You should also include in the subpoena a request to review the store incident report.

Such a subpoena is called a "subpoena duces tecum." When filing your lawsuit ask the clerk to assist you with the subpoena duces tecum. Small claims clerks are there to assist "pro se" parties like you.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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