A server was walking by my table and hit my knee while swinging a wooden carrier. At the time she apologized and offered ice multiple times (could see I was in pain).
The next day my knee suddenly filled with fluid and I couldn’t move it (extreme pain). I saw a specialist and they drained two syringes of fluid. Two days later the same thing happened and I went to urgent care where they drained my knee again.
I can’t put any weight on my leg and have an MRI scheduled for next week. I have a copy of the incident report the restaurant took and their insurance will reach out. I will likely need some type of surgery and or PT.
Is this big enough that I need a lawyer and what am I entitled to? Just my out of pocket deductible for medical or the actual medical costs? I haven’t missed any work since I work at home and took vacation for the holidays but I have been in constant pain since the event.
I have a witness that was with me as well as the server.
I appreciate any insight you can give me.
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.
Thank you for your email, and we are sorry to hear of your accident. You’ll likely receive compensation from the restaurant’s insurance company if you file an injury claim. But we do recommend talking to a local attorney.
A Restaurant’s Duty of Care and Negligence
Restaurants owe their customers a duty of care. This means they have an obligation to avoid causing harm to their customers.
A restaurant that violates this duty is considered negligent. Negligent means that the restaurant, or one of its employees, did something wrong or failed to do what a reasonable person would do to prevent harm to others.
Here, to recover compensation under an injury claim, you’ll have to show that the restaurant employee was negligent in hitting your knee.
Once you establish negligence, then the restaurant is responsible for any injuries or losses that you suffered.
These losses include:
- Medical expenses
- Lost wages
- Out-of-pocket expenses
- Pain and suffering
An injured party proves negligence by using the facts of a particular case.
We’d need additional facts to say for certain that the restaurant’s employee negligently caused your injury.
Some facts that might suggest negligence:
- It’s not normal practice for an employee to swing the wooden carrier
- It’s not normal practice for an employee to use this type of carrier
- The employee was not watching where she was going
- There was not enough room between tables so that the employee could move the carrier more carefully
The employee did apologize after hitting your knee and offered you ice. This could suggest she was at fault for the injury, but she might have taken these actions out of goodwill.
The bottom line is that you’re going to have to look for facts that show the employee was acting unreasonably under the circumstances.
North Carolina and Contributory Negligence
North Carolina is one of only a handful of states that has a pure contributory negligence rule.
This is a harsh rule that says an injured party can’t recover a dime for an injury if they were partly to blame for the accident causing the injury. The rule applies even if a victim was only slightly responsible for an accident.
We mention this rule because the restaurant’s insurer might allege that you were partly to blame for your injuries so that it can deny your claim.
This approach means you’ll want to start writing down every single fact that you can recall that shows you weren’t responsible for the accident.
Contact an Attorney for Help
There are several reasons why you could represent yourself in this case.
Some of these include:
- You have an incident report that evidences the matter
- A person saw what took place
- The insurance company says that it will reach out
Nevertheless, we still recommend that you talk to an experienced personal injury attorney. Most attorneys offer a free consultation, with no obligation. A consultation will help you decide if you can handle the claim on your own or will be better off with legal representation.
A skilled lawyer will help by gathering important facts and evidence to help prove negligence. An attorney can also help gather all of your medical records.
Also, as stated above, the insurance company might say you helped cause the accident so that it can deny your claim. An injury attorney is better able to negotiate with a claims adjuster and will deny (with strong factual support) any accusations that you were responsible for your accident.
You never want to risk complete denial of your claim because of an insurer’s greed.
Learn more here: Restaurant Liability for Injuries
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
We wish you the best with your claim,
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