I was struck in the head by an employee of a major retailer located in Ft Worth, TX. He was misusing his cart tool – a 12’+/- long heavy duty webbed leash with an unforgiving S-Hook on the end. He swung the S-Hook Leash in a vertical radius striking me just outside my eye and above my temple. Luckily, my reading glasses served as protective goggles.
I went to the ER in fear and the nausea was a symptom of a concussion. The doctor looked at me, didn’t order X-rays, gave me meds for the nausea and discharged me. While this tool is intended to lash and retrieve shopping carts, clearly it was being misused.
On several subsequent visits to the same location and other locations in the chain, we have witnessed the same behavior by cart attendants wielding this long 12 foot leash like a weapon – rotating it vertically to the side with force and unaware of any approaching innocent bystanders, including small children, that may enter the strike zone of the steel hook.
Clearly this major retailer has neglected to take my incident seriously enough to implement duty of care by retraining staff and improving the safety of the environment.
They offered to cover my bills and admit 100% liability. They also offered less than one times compensation. In response, I countered on the other end via letter for 10 times medical expenses. When they scoffed at this and my subsequent encouragement for them to make an offer in the middle leaning to my end of the spectrum, they first remarked they would not settle above $10k. Catching his quick statement, I asked him to make that offer of $10k, but then he recanted and shut down.
I provided a receipt he needed for his record and made a third reasonable attempt of $10k plus balance in form of Gift Card so that this major retailer could recoup their loss over time. I also advised I was reaching out to OSHA on behalf of their employees for the unsafe work environment (and to help protect other customers).
Is this head trauma, or soft tissue as their resolution team wants me to believe? Is this considered assault of any form? What key words can I use to get this retailer to make a reasonable settlement offer?
Is this case worth taking to an attorney or shall I settle in small claims court with $10k limit? I did note in all communication regarding settlement, “For Settlement purposes only.” And advised my settlement had not yet been forwarded to an attorney who may find my offer “far under-valued.”
Thanks for your coaching. I really appreciate the opportunity to receive some helpful advice.
Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.
Any settlement will be based on your medical bills, out-of-pocket expenses, your lost wages (if any), and your pain and suffering. Unless you have the offer of $10,000.00 dollars in writing, it is not legally enforceable. As you stated, “I did note in all communication regarding settlement, “For Settlement Purposes Only.” Unfortunately, this language cuts both ways, as their $10k offer would not be enforceable in court.
Until such time as the offer is reduced to writing, you are still in the negotiating stage of your claim. You state “They offered to cover bills and admit 100% liability.” It is rare for a company to admit liability in any injury claim, at least in writing. For this company, or any company to do so could be used against them in pending injury claims, or in future ones. This doesn’t mean they won’t settle. Settlements happen all the time. However, in almost all settlements there is a notable absence of admissions of liability.
According to the facts you present: ” I went to the ER in fear the nausea was a symptom of a concussion. The doctor looked at me, didn’t order X-rays, gave me meds for the nausea and discharged me.” Based on the facts, there is no proof of any tangible injury requiring medical treatment other than the prescribing of medication for your nausea.
“Is this head trauma or soft tissue as their resolution team wants me to believe?”
There is no evidence of head trauma or soft tissue injury. Based on the facts as you present them, there was no bleeding and the doctor did not diagnose any injury, nor did the doctor even order x-rays. You were offered medication to treat your nausea, and that was all.
“Is this considered assault of any form?”
This is not an assault. Based on the facts, while the employee did appear to have been negligent in his or use of the Cart tool, a 12’+/- long heavy duty webbed leash with an unforgiving S-Hook on the end, there is no evidence the employee intentionally swung the hook with a desire to injure you. As a result, the matter remains civil, and not criminal.
“What key words can I use to get this retailer to make a reasonable settlement offer?”
Key topics and phrases to rely upon in your negotiations include the following:
- The injury’s adverse effect on your ability to function at your job
- A reduced ability to share pleasure with your children, your spouse, or your significant other
- The pain and suffering you endured, and may continue to endure
- The emotional distress and mental anguish (anxiety) you endured, and continue to endure
On the issue of litigation:
Texas Small Claims Courts have jurisdiction to hear case up to and including $10,000 dollars.
To read the supporting statute see: Subchapter B Section 27.031 (1)
Absent more proof of injuries and accompanying medical bills, and/or lost wages, it is difficult to see how the company will offer you much more than the amount of your doctor’s bills, out-of-pocket costs, and a small amount for your pain and suffering. The adjuster “slipping up” and mentioning $10k does not necessarily mean it’s on the table as a settlement. Try to be realistic in what your damages are actually worth, and shoot for that amount.
It is always a good idea to speak with one or more personal injury attorneys. Most will not charge for an initial office consultation, and you will likely get some good personalized advice. Consulting with attorneys does not obligate you to retain them. It is just another avenue to consider in the pursuit of your claim.
Learn more here: Injuries Caused by Employees
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
Best of luck with your claim,
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