Filing a Slip and Fall Injury Lawsuit: What You Need to Know

Learn about filing a lawsuit for a slip and fall accident. Get the help of an attorney and maximize compensation for your injuries.

Most people injured in a slip and fall accident file an injury claim with the business or property owner’s insurance company.

Insurance adjusters are experts at finding excuses to deny your slip and fall claim or making a low-ball settlement offer to get rid of your claim for as little money as possible.

When the insurance company won’t negotiate a reasonable settlement, you still have options for pursuing fair compensation for your injuries. You can turn to the courts and file a lawsuit against the property owner that caused your slip and fall.

Differences Between a Claim and a Lawsuit

An injury claim and a personal injury lawsuit are two ways to pursue compensation for your slip and fall accident. While the two share similar goals, there are many differences between them.

Personal Injury Claim

An injury claim is where an injured person files a claim for compensation with the at-fault party’s liability or homeowners’ insurance company.

Once a claim is filed, it’s assigned to an insurance adjuster.

The adjuster takes the following actions:

  • Investigates the claim and the underlying accident
  • Reviews the evidence
  • Determines who was at fault for the injury
  • Negotiates a claim settlement with either you or your attorney
  • Decides to settle a claim or deny it

Personal Injury Lawsuit

Typically, if an adjuster denies your claim or if you’re unsuccessful in negotiating a fair settlement, you can file a personal injury lawsuit in civil court. The suit is filed against the business or property owner you feel is to blame for your accident.

As with a claim, the purpose of a lawsuit is to receive compensation for your losses, but you’re now pursuing payment via the legal process.

The person filing a suit can seek to recover expenses for:

Filing a lawsuit involves specific rules, actions, and timelines that must be met. Different courts have different rules, so lawsuits are more complex than insurance claims.

A lawsuit involves a plaintiff and defendant:

  • You’re the plaintiff, the person bringing the civil suit because of your injury.
  • The defendant is the at-fault business or property owner that caused your injury.

You may be filing a lawsuit because the insurance company denied your claim or refused to make a reasonable settlement offer. However, your lawsuit will be filed against the at-fault business or property owner, not the insurance company.

Once a lawsuit is filed, the case is assigned to a judge in that court.

Some roles that a judge performs include:

  • Overseeing the case to ensure that procedural and evidentiary rules are followed
  • Entering a Scheduling Order, setting deadlines for the case stages
  • Ruling on the admissibility of evidence
  • Instructing the jury on the laws applicable to the case
  • Determining fault (if a trial doesn’t include a jury)

Definition of a Civil Trial

A civil trial is a formal court proceeding where a plaintiff and defendant present their case to a judge or jury. If a jury is involved, most states require that six jurors get assigned to the case and determine whether the defendant contributed to or was responsible for your injuries.

At the conclusion of the trial, a jury will announce whether the defendant caused a plaintiff’s injury, and if so, how much the property owner has to pay in compensation.

If a judge decides your case, they may announce their findings at the end of the trial, or they may “take it under advisement” and file an order with their decision at a later date. The judge’s final order will be sent to both parties.

The at-fault property owner’s insurance company is not out of the picture once a lawsuit is filed.

Just like with auto insurance, the property owner’s insurance company has a “duty to defend” their insured and will typically hire and pay for the defense attorneys needed to represent the property owner in court.

Settlement negotiations will continue after the lawsuit is filed. Sometimes filing a lawsuit is enough to motivate the insurance company to offer more to settle your claim. The offer will come through the defense attorney. The insurance company would rather not fight it out in a public courtroom, especially when you’re a credible injury victim.

Lawsuits are More Expensive Than Claims

A lawsuit can easily cost tens of thousands of dollars, if not more. You and your attorney must determine if the potential payoff from a lawsuit will cover the cost of your injury damages and legal expenses.

Depending on the specific case, legal expenses might include: 

  • Filing a complaint
  • Depositions
  • Paying copy fees for medical and employment records
  • Hiring investigators
  • Consulting with accountants
  • Hiring medical experts

If your injuries aren’t disabling, your case likely won’t need medical experts or accountants. However, other expenses can certainly add up before a settlement or trial.

If experts and accountants are required, and a case goes to trial, total legal costs can range from $18,000 to $109,000 per side.

Lawsuits Take More Time

Most injury claims settle in a few months. Lawsuits can drag on for years. The reason lawsuits are lengthy is that there are several stages in the litigation process.

Stages of litigation usually include: 

  • Initial filings:  When the plaintiff files a lawsuit, the defendant files a response. Then the plaintiff might file a reply to the defendant’s response.
  • Discovery process: Both parties use the discovery process to learn everything they can about the case by collecting evidence and testimony.
  • Filing of motions: Parties can file motions to ask the judge to make decisions, for example, to exclude certain evidence.
  • Trial phase: The trial phase can last a few days or up to a few weeks.
  • Appeals process: A party that loses at trial can file an appeal, which is a request that a higher court review the trial’s proceedings for any errors.

Each stage is time-consuming in and of itself. When you add them all together, you get a legal process that can take quite some time to bring a case to its end.

When to File a Lawsuit

Most injury claims are resolved directly with the insurance company. If you’ve fully recovered from relatively minor injuries, you can probably settle your slip and fall claim without a lawyer.

If you’re nearing the end of your state’s statute of limitations, you’ll need to file a lawsuit before the clock runs down. A statute of limitations is the timeframe you have to settle your injury claim or file a lawsuit. Most states say that the statute of limitations in personal injury cases is three years.

If you don’t have a signed settlement agreement or file a lawsuit within this time period, you forfeit your right to pursue compensation, no matter how badly you were injured.

Severe slip and fall injury claims should be handled by a qualified personal injury attorney to ensure the best possible outcome for the victim.  

Expectations After Claim Negotiations Fail

With or without an attorney, sometimes settlement claim negotiations fail. Filing a lawsuit might be the next best step to getting fair compensation.

Filing a Complaint

The document filed to initiate a lawsuit is called a Complaint. A Complaint is similar to a demand letter that you used to start an injury claim in that it sets forth the basis for your suit.

Most states provide slightly different laws as to how many details a Complaint has to include. Some states ask for a Complaint to set forth a precise factual summary of how your slip and fall took place and your resulting injuries. Other states just require enough information so that a defendant has notice of your claim.

Almost all states, though, require a Complaint to set forth:

  1. Your name and the name of the at-fault party
  2. A brief explanation of how your fall occurred
  3. The injuries you suffered because of the accident
  4. The amount of compensation that you expect from the defendant and what it’s for

Your attorney will decide the best venue and jurisdiction for filing your lawsuit, depending on where you live and where your slip and fall occurred.

The Complaint will be filed with the appropriate court, either electronically or in-person at the clerk’s office. There’s usually a filing fee of around $100.

The Complaint is filed along with a summons. A summons is an official notice of the lawsuit that tells the defendant the date of the Complaint and the deadline to file a response.

The Defendant’s Answer

The defendant, through their attorney, will file an Answer in response to your Complaint.

Most states require a defendant to file an Answer within 20 days from the date you filed your complaint. The defendant files the Answer with the same court that you filed your Complaint with.

The Answer is not as detailed as the Complaint. A property owner does not give their version of what happened. Instead, the owner admits or denies every fact that you listed in your Complaint.

An owner can also raise an affirmative defense in an Answer. An affirmative defense is a position that a defendant takes, which may work to reduce or remove its liability if proven true.

Example of an Affirmative Defense

Ben slipped and fell on a pool of liquid at the grocery store and broke his wrist.

When a grocery store employee came to his attention, Ben asked for help finding his smartphone. He commented that he was looking something up on it right before he fell.

Ben filed a lawsuit against the grocer and laid out his account of what took place in the Complaint.

The grocery store filed an Answer admitting most of the facts in the Complaint. The store, though, also raised the affirmative defense that Ben was using his cell phone right before the accident and wasn’t watching where he was going.

If the grocer can prove this in the lawsuit, the defense could reduce its overall liability.

Here, the affirmative defense in question is based upon the legal doctrine of comparative negligence. Most states have a version of the doctrine, and it applies when an accident victim was partly at fault for causing an accident.

In application, the doctrine still allows a victim to receive compensation, but the total amount of compensation gets reduced by the percentage of fault attributable to the victim.

In high-dollar cases, the defendant (especially big corporations) will often try to have an injury lawsuit removed to federal court. For instance, if you were permanently injured by a slip and fall in a Walmart or a nationally known fast-food restaurant.

Big corporations tend to think they have a better shot at winning in federal court than in state court. The defendants generally must request the removal within 30 days after the date your complaint is filed. Your attorney will reply with points of law in favor of keeping your case in state court.

The Discovery Phase

The discovery phase of a lawsuit is one of the most critical stages of a case. During discovery, the parties try to learn as much as possible about the facts within the case.

Legal tools commonly used in discovery include:

  • Interrogatories – Lists of questions that a party must answer in writing
  • Requests for Production – Requests that a party hand documents and electronic records related to the lawsuit (e.g., medical records)
  • Request for Admissions – A list of statements a party must affirm or deny in writing
  • Depositions – Pre-trial interviews under oath of individuals involved in the case

A large portion of discovery focuses on a victim’s injuries. You’ll have to provide the defendant with information that proves you were injured by the slip and fall and that verifies the scope of your injuries.

Evidence of a person’s injuries can come from:

Discovery can last for just a few weeks, or it could go on for months, depending upon the complexity of the case and availability of witnesses. The judge sets the deadline to complete discovery in the scheduling order issued at the beginning of the lawsuit.

Patience is a Virtue

The early parts of a lawsuit can sometimes seem like they go on forever. This can fuel anxiety and give a reason for concern.

While frustrating, you have to remain confident in your case. It’s extremely important to remain patient and let the process run its course. Let your attorney work on the details of the case and listen to their advice.

Keep in mind that even though you may have filed a lawsuit, most legal cases settle before trial. Your attorney will do their best to work with the defendant to negotiate a favorable settlement for you.

How Attorneys Handle Slip and Fall Lawsuits

If you have slip and fall injuries that are severe enough to warrant a lawsuit against a business owner, you’ll need an experienced personal injury attorney to handle your lawsuit and any ongoing insurance negotiations.

Not only are lawsuits and jury trials complicated from a legal standpoint, but you can bet the at-fault business will be represented by an army of aggressive defense attorneys.

Assistance in Every Phase of Your Lawsuit

A personal injury attorney has the experience and legal tools to manage a successful slip and fall injury lawsuit in ways you could not accomplish on your own.

Legal expertise is needed for:

  • Drafting and filing your Complaint
  • Issuing subpoenas to get surveillance film and other key evidence
  • Answering the discovery of the defendant
  • Preparing you for a deposition
  • Deposing other witnesses and experts
  • Presenting your case to a judge or jury
  • Appealing your case if necessary

When searching for a slip and fall lawyer, do your research and compare attorneys. You can meet with more than one attorney for a free consultation to help find the attorney who is a good fit for you.

Advancing Legal Costs

Most slip and fall victims don’t have extra cash sitting around to cover filing fees and other lawsuit costs.

Slip and fall lawyers, however, do have the financial stability to advance legal costs for their clients. After obtaining a settlement or court award, the lawyer gets repaid for these advancements.

On the subject of finances, keep in mind that attorneys are not cost-prohibitive. Most injury attorneys will represent slip and fall victims under a contingency fee arrangement, meaning if they can’t settle your case or win in court, they don’t get paid.

Specialized Knowledge

Reputable lawyers are familiar with the legal process and existing case law in your jurisdiction and know what is required to win a lawsuit.

Calculating Your Claim Value 

The first step in calculating the compensatory value of your claim is accounting for all your damages.

Damages is a term that describes the losses you suffered from your slip and fall accident. Your losses may include medical expenses, lost wages, out-of-pocket expenses, pain and suffering, and loss of consortium.

Every slip and fall case is unique. A skilled injury lawyer will help to identify and substantiate your special and general damages.

Proving Property Owner Liability 

To win your lawsuit or receive a favorable settlement, you’ll have to prove that the property owner was liable, meaning legally responsible for your slip and fall injuries.

In most cases, that means showing that the property owner was negligent. Negligence means that the owner either created a dangerous condition on its property or failed to correct one.

Attorneys know how to obtain critical evidence in your case, and how to use it to show the defendant acted negligently.

Negotiations Will Continue 

A slip and fall attorney can help you receive a favorable settlement while avoiding the risks of a trial. Most injury lawyers will know the strengths of their client’s cases. They can highlight these to help convince the opposing party that it’s in their best interest to settle your case.

Experienced attorneys are familiar with the amount of compensation that juries in your area typically award to injury victims like you. This familiarity works in your favor during settlement negotiations.

Finally, your attorney can negotiate with medical lien holders like Medicare, Medicaid, the VA, and private health insurers to reduce the amount you owe, so you end up with more in your pocket.

Filing Your Case in Small Claims Court

Accident victims are not limited to filing a lawsuit in a higher court, like district court or superior court. You can also file a lawsuit in small claims court.

A small claims court handles just that, small claims. The court handles cases that involve limited amounts of money. For example, most states have small claims courts that will only hear cases seeking no more than $5,000 to $10,000.

If your slip and fall accident resulted in severe injuries, then small claims is not your best option. Your damages would exceed the monetary award that these courts are officially authorized to grant.

But, if your injuries are minimal, then there are certain advantages with a court of this nature. The procedures in a small claims court are simpler than in higher courts.

While simplicity is a value in and of itself, it also means that a case will get resolved quicker than in a higher court and your suit will involve fewer expenses. If you win, you might be able to recover your court costs from the defendant.

States design the rules for small claim courts to make it easier for individuals to settle smaller claims without using an attorney. Representing yourself is not necessarily a bad thing. Remember that procedures are simplified, and self-representation will save you money.

However, if you sue a property or business owner who has homeowner’s or liability insurance, you can be sure the insurance company will provide an attorney to defend them in court – any court.

An important consideration with a small claims court is that if you lose your case, you can’t sue again in a different court. Also, keep in mind that small claims are usually decided by a judge. There are no juries. While this may help some injury victims, it could hurt others. A judge will not be swayed by sympathy.

Let’s say you slipped and fell on snow and ice left by a homeowner who should have cleared the sidewalk. You ended up with a shoulder sprain and a broken smartwatch.

All you want is $1,500 to pay for your Urgent Care visit and a new watch. The homeowner tells you they don’t have insurance and to take a hike. Here is where a small claims lawsuit is a very good option to make the negligent homeowner pay for your losses.

Small claims or large, if your injury claim was denied or you received a low settlement offer, you’re not without options. Talk to an attorney about filing a slip and fall injury lawsuit to get the compensation you deserve.

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Dustin Reichard, Esq. is an experienced attorney with 20 years of work in the legal field. He’s admitted to the Illinois State Bar and the Washington State Bar. Dustin has worked in the areas of medical malpractice, wrongful death, product liability, slip and falls, and general liability. Dustin began his legal career as a JAG... Read More >>