Settlement Demand for Client Who Slipped and Fell on Icy Sidewalk and Required Two Shoulder Surgeries
Introduction
In a recent blog post, found here, the attorneys at Martin + Colin, P.C. brought to your attention a new appeals court ruling which discussed the special use exception to homeowner liability in slip and fall cases. As a further discussion of the “special use” exception, which imposes liability upon adjoining homeowners who make special use of a public sidewalk, I am sharing a recent settlement demand which we made on behalf of a client. This sample settlement demand should help you get a better understanding of the liability which can arise when your driveway crosses over a public sidewalk.
Settlement Demand on Behalf of the Injured Client
Dear Claim Representative:
This letter is our formal demand, with analysis and supporting documentation, to settle this matter, without costly and protracted litigation, for the amount of $550,000.00. Our summary and analysis of the case is as follows.
FACTS OF THE CASE:
On the date of the accident, Thursday, January 12, 2016, at approximately 5:00 p.m., Ms. Carnicelli was walking on the sidewalk and driveway in front of the premises known as 1313 Tiburon Road, Yonkers, New York 10705 when she was caused to slip and fall on snow and ice. As a result of the fall, Ms. Carnicelli sustained serious injuries to her left shoulder.
MEDICAL TREATMENT:
Following the accident, Ms. Carnicelli was experiencing pain in her left shoulder. Ms. Carnicelli had difficulty sleeping the night of the accident due to the pain she was feeling. The next morning she woke up and called her doctor to make an appointment to be seen. The earliest available appointment was the following day, Friday. In the meantime, she alternated between hot and cold packs, and took OTC Motrin and Aleve in attempts to alleviate the pain but to no avail.
Ms. Carnicelli went to her appointment with her nurse practitioner soon thereafter with complaints of left shoulder pain. The NP scheduled Ms. Carnicelli for an x-ray at this first appointment due to the fact that Ms. Carnicelli could not raise her arm. After receiving the results of the x-ray, Ms. Carnicelli was scheduled for an MRI of her left shoulder to follow up. Additionally, on the date of her first visit, Ms. Carnicelli was prescribed 800 mg of Motrin to help alleviate the pain.
Ms. Carnicelli went for an MRI of her left shoulder on January 30, 2016. The results of the MRI revealed tears of the supraspinatus tendon. Based upon these results, Ms. Carnicelli was referred to an orthopedist, Dr. Eno Spicer. Dr. Spicer opined that the tear in Ms. Carnicelli’s rotator cuff was caused by blunt force trauma, i.e., the fall. Dr. Spicer prescribed home exercise, which did not alleviate her symptoms. Ms. Carnicelli followed up with Dr. Spicer, who recommended surgery to repair the tears.
Ms. Carnicelli underwent surgery on March 1, 2016 at St. John’s Hospital on North Broadway in Yonkers, performed by Dr. Spicer. Dr. Spicer prescribed Percocet and Ambien to help Ms. Carnicelli sleep, which she had to do while sitting up following the surgery. Ms. Carnicelli had to wear a sling that was belted around her body for three months following the surgery. Upon removal of the stitches, Ms. Carnicelli was prescribed home exercises, then gradually move up to physical therapy.
As a result of the immobility of her shoulder, Ms. Carnicelli developed neck pain, for which she sought treatment from a chiropractor in New Rochelle.
Ms. Carnicelli continued to follow up with Dr. Spicer as the pain had not completely alleviated. Dr. Spicer administered a cortisone injection in Ms. Carnicelli’s shoulder in or about October 2016, approximately 6-7 months after the surgery.
LIABILITY SUMMARY:
Ms. Carnicelli will be able to establish her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence showing that the defendant, a nearby homeowner, owed a non-delegable duty to keep the sidewalks in front of the premises owned by the neighbor clear and clean from snow, ice and dirt pursuant to Municipal Code of the City of Yonkers § 103-8, that defendant nearby homeowner failed to remove the snow from the sidewalk and driveway abutting 1313 Tiburon Road, Yonkers, and that said failure resulted in Ms. Carnicelli’s accident on January 12, 2016.
DAMAGES SUMMARY:
Ms. Carnicelli sought treatment following the accident for pain in her left shoulder, which was corroborated by diagnostic testing. Ms. Carnicelli underwent surgery to repair the tears in her shoulder that resulted from the January 12, 2016 fall. Ms. Carnicelli underwent months of physical therapy and home exercise treatment, and received a cortisone injection to attempt to alleviate the pain. Ms. Carnicelli does not have full mobility of her left arm. Ms. Carnicelli testified that as a result of the injuries sustained in this accident, she can no longer put the dishes away, make her bed, clasp her bra, pick up her four grandchildren, swim, and shave under her arm. Ms. Carnicelli testified that prior to this accident she used to have her own business, however now she has had to turn down work because she has lost mobility and strength as a result of this slip and fall. Ms. Carnicelli testified that she used to earn approximately $5,000 per month in her business, but that number has drastically reduced following the accident. Ms. Carnicelli has never fully recovered from the accident. She has treated continuously from the date of the accident to the present.
JURY APPEAL
The plaintiff is a likeable person who will have great jury appeal to a Westchester jury. Ms. Carnicelli was walking to help take care of a neighbor’s pet when she was caused to slip and fall on the snow and ice that had accumulated on the sidewalk and driveway in front of 1313 Tiburon Road. We expect that a jury will determine the full amount of Ms. Carnicelli’s damages will easily exceed $750,000.00 by the time of trial. Ms. Carnicelli has suffered greatly, and will continue to suffer, as a result of the defendant’s negligent maintenance of her property.
DEMAND
Based on the above, it is our position that our client is entitled to substantial money damages for her pain and suffering, which continue to the present day.
For reasons set forth in this letter, formal demand is hereby made for $550,000.00 to settle all claims against your insured. In the event that we are unable to settle this lawsuit, we are prepared to proceed to trial.
I thank you in advance for reviewing this letter and attached documents.
Sincerely,
MARTIN + COLIN, P.C.
WILLIAM MARTIN
WM/hh
Eventually, We Obtained a Favorable Settlement
It took a great deal of time and effort, but eventually we were able to convince opposing counsel that their case was weak and they negotiated a settlement.
A previous blog post about a slip and fall in New Rochelle, NY can be found here.
A previous article about a trip and fall in Sleepy Hollow, NY can be found here.
Our full web page discussion of Premises Liability can be found here.
Contact Us if We Can Help You
If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help. Please call (914) 771 7711 anytime.
