Calculating Damages in a Slip and Fall Case


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In this article, we'll offer some tips on figuring out damages in a slip and fall case -- in other words, how much is your case worth?

There are two types of damages in a slip and fall case:

  • damages capable of exact calculation (called special damages), and
  • damages not capable of exact calculation

Damages Capable of Exact Calculation -- Special Damages

Special damages are lost earnings and lost earning capacity, medical bills, and other financial losses attributable to your slip and fall accident. They are capable of exact calculation because they can be added up. Since medical bills in an injury claim are pretty straightforward, we'll spend most of our time explaining how lost earnings work.

Lost Earnings

Lost earnings are exactly what they sound like -- how much money did you lose, past, present, and future, as a result of your injury? In some states, it is referred to as lost earning capacity. In other states, lost earning capacity only refers to future losses.

How does this work? Here is an example. Let’s say that you earn $50,000 per year, that you have been totally disabled for one year due to a serious back injury suffered in a slip and fall, and that you are now only able to return to a part time job earning $25,000 per year. You thus have lost earnings of $50,000, and a lost earning capacity of $25,000 per year for the remainder of your work life expectancy.

Work life expectancy is based on federal government statistics and is a statistical measure of how many more years a person is reasonably expected to work, based on that person’s age, sex, and race. Now the challenge is to calculate what $25,000 per year for some future time period is worth.

Present Value

Because future lost earning capacity involves a calculation of losses that may extend for many years into the future, it generally has to be calculated in terms of its present value. Present value is a financial concept that involves determining the value of a future stream of income (i.e., your weekly paycheck) as if it were all in a bank account today.

In other words, how much money does your employer need in a bank account today in order to pay you your salary for, say, the next twenty years? This is a complex financial calculation, and is customarily performed by an economist that your lawyer will hire to be an expert witness in your case.

Problems in Calculating Lost Earnings and Lost Earning Capacity

Three problems often arise in making lost earnings claims:

  • you are not working at the time of the slip and fall injury
  • but for the injury, you had plans to take a new job for more pay
  • you are self-employed

If you are unemployed at the time that you are injured, you can generally claim your earnings from your previous job as your earning capacity as of the time of the injury. If, for whatever reason, you have not worked for many years, the defense attorney will argue that you have no earning capacity and thus should have no lost earning claim. It can be hard to rebut this argument. In this situation, you and your lawyer will have to work together to formulate a plan for making a lost earnings claim. If you are retired, then you have no lost earning claim.

If you got hurt the week before taking a new job for higher pay, you can generally claim that higher pay rate as your earning capacity. You would have to prove that you had indeed been hired for the new job.

If you are self-employed, the defense attorney will undoubtedly examine carefully your business records and tax returns to see whether your actual records support your lost earnings claim. For any type of employee, the general rule is that, whatever you tell the government in your tax returns about your earnings is what you must tell the defense attorney and the jury.

If you worked under the table, you are going to have a hard time trying to convince the jury that you should be compensated for those losses. Juries generally feel that they declared all of their income and paid taxes on it, so why shouldn’t you.

Damages Not Capable of Exact Calculation

This category of damages includes pain and suffering and mental anguish that result from a slip and fall accident. There are no guidelines for determining the value of an injured person’s pain and suffering. A jury cannot look at a chart to figure out how much to award for pain and suffering. Thus, these types of damages are not capable of exact calculation.

How to Value Pain and Suffering in Trying to Settle Your Case

This is the big question. Lawyers and writers have often talked about a “multiplier” in personal injury cases, that insurance companies calculate pain and suffering as being worth some multiple of your special damages. But that is only true up to a point. Juries do not use multipliers when they are in the jury room trying to determine your damages, and there are many other factors that affect the outcome of a case. Some factors that can greatly impact the value of a plaintiff’s pain and suffering damages are the following:

  • whether the plaintiff is a good or bad witness
  • whether the jury likes the plaintiff
  • whether the jury thinks that the plaintiff lied
  • whether the jury thinks that the defendant or the defendant’s witnesses lied
  • whether the plaintiff has a criminal record
  • whether the plaintiff’s injuries are easy for the jury to understand
  • whether the plaintiff’s medical treatment appears to be “soft;” that is, whether the vast majority of the plaintiff’s medical bills are physical therapy and/or chiropractic treatment, as opposed to physician’s or hospital bills.

All of these things and more can affect how pain and suffering is valued. You must ask your lawyer to give you his/her frank opinion about what the jury is most likely to do with your case and your evidence.

 

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