As a matter of course, every client that ever comes to me, I generally refuse to give any kind of estimates of a case value up front.
I refuse to talk about money until such time as the case is fully developed and we’re nearing trial, because only then will I have a good idea of, number one, where the insurance company is coming from (ie. what their defenses are going to be and how valid they are), and number two, how your injuries have evolved and what the value becomes.
It’s almost impossible to determine the value of an injury prospectively, going forward. The reason for that is because, just like anything else, an injury is something that will either resolve with time or won’t resolve with time.
So for instance, you can have a simple break of your arm or a simple break of your leg and it’s set, it’s casted for six weeks. You go to six weeks of physical therapy and then essentially you’re better.
Or you can have the same broken leg and it was casted but it didn’t set properly for whatever reason, and then they had to go in and perform an open reduction internal fixation surgery. So we wouldn’t have known about that surgery six days after the accident, but a year and a half after the accident we do. So it’s really impossible to prospectively answer that question, meaning from day one going forward, but those are some of the factors that you take into account.
Value-Adding Factors
1. Liability
In any case, in any personal injury case, factors that add to value are number one, the liability. Whether or not we can prove that our target defendant is responsible for the incident, in whole or in part. If the liability is strong, if the liability is clear against the defendant then that makes it a much more viable, much more valuable case.
But the unfortunate truth in slip and fall and trip and fall accidents is that more often than not the defendant is going to have a built-in defense. A trip and fall accident, they occur as people are actively walking or actively traversing or traveling in some way, shape, or form, riding, whatever it is. So every single defendant in this kind of case, they are going to argue, “You should have watched where you were going.”
And in our jurisdictions here, in the City of New York, people are aware of that idea. People know. People walk the streets of New York City daily. They walk in stores. And everybody knows you’ve got to be safe where you’re going because there are things lurking that might be dangerous. So the thing about it is that sometimes you may share some fault.
In New York, we have a comparative fault statute, and what that means is that you look at an incident or an event and you try to determine the fault of each party. So let’s assume that we’re suing Target They allowed this dangerous water condition to be leaking from their refrigerator, which is actually a case I’ve handled a number of times. And they knew that the refrigerator was working and they sometimes put up a warning sign and sometimes didn’t.
But they had tons of notice and a prior incident that had happened, and it was leaking water. Let’s say that there’s no warning sign and it’s clear water and a person’s walking down an aisle and they slip and they fall.
In that scenario, there’s hardly any way to show that the person who was walking should have been more careful, because there was nothing to alert them.
But let’s take the same scenario and you insert a warning sign and you insert, instead of just clear water, let’s say that the water is rusty.
It’s colored in a shape or form. Then that warning sign plus the rusty water should have and could have alerted this person to be a little careful. So if you’re walking down the aisle with your head in your phone or your head up in the air and not really paying attention to what’s going on, maybe you share some fault. And our courts would allow that.
So under that first scenario, maybe it’d be 100% against Target and 0% against you.
In the second scenario it’d be, let’s say, 75% against Target and 25% against you, because your head’s in your phone or your head’s not watching where you’re going.
The way that that factors into value is this. When you can prove that the defendant is 100% responsible or liable for an accident, then you get 100% of your damages. So let’s just assume for argument’s sake, that your damages are $100,000.
If they’re 100% at fault, you get $100,000 of your damages, pain and suffering, and out of pocket costs, and medical expenses, etc. But if they’re only 75% responsible, then you’re only going to get $75,000 of the total value of your damages, which was $100,000.
2. Damages
The second thing that you look to, that any attorney like me is going to look to is the damages.
The damages come in the form of the injury itself and the value of the injury itself. Whether or not there’s any economic loss, that being time out of work or out of pocket payments for medical costs and expenses and treatment, etc. And then the last one would be future costs or future time out of work or anything else like that that may be claimed depending upon the type of injury, the seriousness of the injury, and whether or not you’re claiming a permanent injury that will disable this person going forward for their life.
If that’s the case, then you can claim future medical costs, future wages and things like that.Those are generally the components of a damages claim.
Minor injuries and slip and fall lawsuits
Every case has to be analyzed on its own facts and valued on its own facts. Some of the things that determine the value of a particular injury is that person’s position in life. How old are they? What do they do for a living? Have they ever had this type of an injury before? Do they have any repetitive stress-type things that they do in their life? Are they working on a construction site that might have made that part of their body a little bit more susceptible to an injury like this?
Just because you don’t have a significant injury, that doesn’t mean that you don’t have significant value in a case. Let’s say that you only have maybe a bulging disc or a partial tear of your knee, or a partial tear of your shoulder, or a herniated disc in your back or your neck. There certainly is value in something like that.
The value of any injury, even smaller ones, is determined by how the injury affects your day-to-day life. So if you have a very significant tear in your shoulder and you’re unable to complete every day tasks like to lift your arm over your head to change a light bulb, or grab a bowl from the top cupboard, or you can’t unstrap your bra, or you can’t tie your sneakers the right way, or whatever the case might be, this sort of damage has value because a jury can relate.
With your attorney’s help, you can try to explain what all these things are that you’re limited in doing. That is really what brings value, because the truth is, that’s what a juror can identify with.
If you’re just saying, “I can’t do anything,” or you really can’t articulate what it is that you’re limited in doing, then the value of that particular injury is less for you as opposed to the person who can say, “I can’t even wash my hair. I can’t undo my bra. I can’t put my shirt over my head without help.”
3. The available insurance
The third factor is what type of insurance that the defendant has, what type of insurance coverage they have on their property, whatever it might be, and who you’re dealing with as far as attorneys and insurance company adjusters and things like that.
That’s a big factor in how a case is valued. Because the defense attorney’s input and the adjuster’s input is a very significant factor in how they put money on files. It’s just the way that things work.
And if you’re dealing with an insurance company that’s more difficult notoriously, or just their modus operandi is just to be obstructive and difficult, whether that’s an insurance company or their attorneys, then their goal is to limit the value.
And personally, in my position, it’s my goal and it’s my job then to fight and to fight tooth and nail on every little thing. The other part of that is sometimes you’re dealing with a municipal entity or a school district or some other kind of self-insured defendant. An insurance, whether it’s the city or even some bigger companies, they’re self-insured. And they’re a little stingier. They just won’t pay as much voluntarily.
And then you’re left with a decision. Do I want to accept this amount of money, which is not insignificant, or do I want to let it be determined by a jury of my peers? We’re ready to do either.