Liability for broken tooth from hard shelled seeds...

by Judith
(Boulder, CO)

I bought shelled pumpkin (pepita) seeds at a locally owned grocery and broke my tooth on a piece of hard shell. I require a dental implant. Dental costs alone are over $8,000. I have been trying since July to have the store's insurance company cover this.

They immediately referred us to the distributor's insurer who went to the manufacturer's insurer and then turned the claim down.

I went back to the store and their insurer asking for their help, at the very least helping me have the case re-opened by the distributor's insurer. At this point they started ignoring my calls and emails.

I wrote to ask again, telling them I was ending up with no recourse but small claims court and giving them many weeks to respond. I even left a voice mail for the store owner - we have been customers of this small grocery for over 20 years.

Three days after my vm to the owner with no response, I filed in small claims court against the store (the only locally owned business). We have a hearing in early March. I let them know after they were served legal papers, that I still preferred a settlement and some sharing of costs between the two companies, but I have not heard back. I have the following evidence:

-the receipt of purchase from the store;

-a bag of the seeds and the large piece of very hard shell;

-all correspondence between the store's internal and insurance agent;

-all correspondence between the manufacturer's insurance agent;

-all already paid bills form my dentist and oral surgeon detailing what has been done (tooth extraction and bone graft);

-treatment plans and cost from dentist and oral surgeon about the remaining work and costs thereof (sinus lift surgery; titanium implant and in another six months crowning the implant and the adjoining crown, which was also damaged);

-photos of the bins of all nuts and seeds from the store with the labels which are produced by the store taken after my communication about the tooth with the store. (The ONLY bin out of 15 shelled nuts and seeds that says "may contain shell fragments" is the one kind I bought.)

Small claims in my area is limited to $7,500. Do I have a case with a good chance of winning in small claims court? Should I be taking a different route? At this point given 5 months of persistent outreach and follow through, I am now planning to go to Costa Rica to get the work done. This is obviously not my first choice. Thank you for any perspective you can give.

Visitor Question:
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ANSWER for "Liability for broken tooth from hard shelled seeds...":

Judith (Boulder, CO):

The obvious question is why you would file a claim in small claims court? The jurisdictional limit in the court is $7,500.00. The cost of your dental implant is $8,000.00 dollars. Even if you were successful in small claims court, you would still have a loss.

Moreover, a court verdict in the amount of $7,500.00 dollars wouldn’t cover your additional damages, including the cost of your medications, lost wages, and your pain and suffering.

Another disadvantage to filing your case in small claims court is the existence of the appellate process. In most states a losing party in small claims court can appeal the case to a higher court. Higher courts are more serious, where the rules of evidence are strictly enforced and attorneys have a “take no prisoners” attitude, especially when defending their corporate clients.

The parties have thus far ignored you. They may be doing so to wait for a judgement against them so they can automatically, and promptly, appeal the case to a higher court. That’s not surprising. It happens all the time in small claims courts around the country.

Worse, when attorneys win in higher courts they often ask the judge to make the losing party pay for their attorneys fees and costs. Ouch!

After being ignored for so long, you probably should have realized the only way to get satisfaction is to retain an attorney. Personal injury attorneys work on a contingency fee basis, meaning they are only paid if they win the case. An attorney would likely have filed your case in a higher court right from the start.

With the evidence you have, the attorney would likely have settled your case by now, probably for a lot higher than the $7,500.00 you may expect to win in small claims court.

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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