Slip-and-Fall Cases: Avoid Common Mediation Mistakes
By Drew Lewis
Premises liability cases are a common part of most plaintiff’s lawyer’s practices, with slip-and-fall claims typically making up a sizeable number of cases. As a longtime Florida defense attorney, and a mediator of slip-and-fall cases, I have seen several common issues that arise when mediating these kinds of claims and lawsuits. Let’s take a closer look at the mistakes both plaintiff’s and defense lawyers make when mediating slip-and-fall cases, and how to avoid them.
The Elements of a Slip-and-Fall Case
Typically, a slip-and-fall is an umbrella term used for incidents where someone fell and was injured on another person’s property. The plaintiff must prove that the poor condition of the property or a hazard caused him or her to fall and become hurt, and that the owner or possessor of the property knew, or should have known, about the potential danger but did not remediate it.
While slip-and-fall actions can be brought in any state, some states have laws which specifically address this cause of action. That’s the case in Florida, where chapter 768 provides the elements of a slip-and-fall case, including that if someone slips and falls on a “transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.” Florida Statute § 768.0755(1).
That requirement — proving that the business had knowledge of the dangerous condition is one of the challenges you face if you’re representing the plaintiff in a slip-and-fall case. The statute further provides that, “constructive knowledge may be proven by circumstantial evidence showing that: (a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or (b) The condition occurred with regularity and was therefore foreseeable.” Florida Statute § 768.0755(1).
This statute was changed a few years ago to place the burden on the plaintiff to show that the foreign substance was on the floor long enough that the property owner should have known about it. However, it can be a Catch-22. That is, if the claimant claims says, before I fell, I saw tracks or footprints in the foreign substance on the ground,” the defense can argue that the claimant should have seen the foreign substance and avoided it— that it was “open and obvious”.
More recently, Florida law changed, holding that if a plaintiff is 51 percent or more at fault, he or she cannot recover anything.
Common Mediation Mistakes
I’ve handled hundreds of slip-and-fall cases as an attorney and as a mediator, and see lawyers make some of the same mistakes when mediating them. One common mistake I see frequently is the parties not being prepared. The lawyer hasn’t prepared his or her client, or the lawyer has oversold the case to the client. If a claimant is told that their case is worth $500,000 but the actual value of the case is truly $100,000, it will be harder to settle the case at mediation.
If you’re a plaintiff’s attorney, part of preparing your client for the mediation is making sure your client knows what to expect, and what the defense may say during the mediation. On the defense side, this may be easier because the insurance adjuster knows what to expect as the adjuster has probably handled hundreds of these cases before.
Another common issue is not having your ducks in a row. For example, a plaintiff’s attorney cannot send new medical records and bills to the defense attorney at 4:00 pm on the day before mediation. The insurance adjuster needs time to evaluate the records and get authority in advance of the mediation.
I’ve seen cases where the plaintiff’s lawyer will show up at the mediation with an additional $50,000 of medical bills. The adjuster won’t be able to get new authority to settle the case that quickly. The adjuster may need two to four weeks to get that authority. When the defense thinks there are $20,000 in medical bills and now is told that number has been tripled, the case won’t settle at mediation. A plaintiff’s attorney needs to get the records to the defense well ahead of time.
On the defense side, you want to make sure that you set expectations with the insurance adjusters about what the case is worth. It is also smart to give your adjuster some “wiggle room,” so if you think the case can settle for $50,000, you might ask for $60,000 in authority. You’re better off having some buffer room when you get to mediation.
Consider Pre-suit Mediations
Plaintiff’s attorneys should consider pre-suit mediations. When Florida law changed in March of this year, tens of thousands of lawsuits were “shotgun-filed”. However, a lot of the insurance carriers prefer pre-suit mediations, and cases can settle more quickly as insurance carriers want to get rid of them. So, if you have your medical records and bills related to the accident, and documents related to lost wages, ask for a pre-suit mediation — you can get your money more quickly and may get more money as well.
This should be more of a trend because there is no need to file on a lot of these cases. Sometimes plaintiffs don’t want to mediate early on, but if your client is nearing the end of treatment or done treating, consider going straight to mediation. You save the time of drafting pleadings and responding to discovery, and you save money on filing fees.
Send a Summary
Finally, I suggest sending the mediator a summary ahead of time. As a defense attorney, I would prepare a mediation summary for my client, giving the facts of the case, the legal issues, and the value range. I would then provide a modified version of that to the mediator, so that the mediator knows the facts and issues and can hit the ground running. As a mediator, I only receive pre-mediation summaries about 50 percent of the time, but they are helpful for both the plaintiff and the defense.
While each slip-and-fall case may be unique, these general strategies can help you better prepare for mediation and improve your chance of resolving the case before going to trial — and sometimes even before filing a lawsuit.
About Drew Lewis
Drew Lewis serves as a Florida Supreme Court Certified Circuit and County Court Mediator. Lewis is also a partner in the Tampa office of Quintairos, Prieto, Wood & Boyer, P.A. He focuses his practice in the areas of insurance defense, insurance coverage and bad faith litigation, automobile liability claims, toxic torts, and first party and third party property casualty claims.