Negotiating a Slip and Fall Settlement with Walmart

If you slipped and fell at a Wal-Mart store and filed a lawsuit over your injuries, as the litigation goes on, your attorney will discuss  settlement  options with you. How do you negotiate a satisfactory resolution of your case with a large corporate defendant like Wal-Mart? Read on for some tips.

Strategy and Burden of Proof

Your lawyer will have advised you what it takes to win a negligence claim. You have to be able to show:

  • that Wal-Mart owed you a duty of care to keep their store safe for you as a customer (Wal-Mart should admit this part, as far as the existence of a legal obligation)
  • that they breached that duty by not keeping the area safe when you fell, and
  • that their failure to properly maintain the store caused you to be injured and suffer damages, such as lost wages and medical bills.

Establishing duty is usually easy, and showing that you have injuries and other damages probably is as well. What can be hard is showing that Wal-Mart failed in its duty to you, and that that failure is what caused you to be hurt.

You will also need to show that your actions didn't contribute to your fall or that, if they did, that contribution was minor compared to Wal-Mart's actions. Your role, if any, is called  contributory or comparative negligence. Depending on your jurisdiction, you may not be able to win any money if your actions played an equal or greater part in the accident than did Wal-Mart's liability, or your recovery may be reduced by the amount the jury attributes to your negligence. Of course, you may not have been at fault at all, but the fact that Wal-Mart could raise this argument is something to think about as you consider settlement.

The key question in most  Wal-Mart slip and fall cases, when arguing that the store failed to meet its obligations to you as a customer, is whether the unsafe condition (such as a slippery floor) that caused your fall was present long enough that Wal-Mart knew about it or should have known about it. Wal-Mart has a policy of conducting regular safety sweeps of each area in the store, which you will have learned about during the discovery process, where each side compiles its evidence. Given this, you can argue that they should've noticed the wet floor (or whatever dangerous condition it was) before you fell on it. This argument is perhaps easier to make if the accident occurred in one of the aisles as opposed to the front of the store, which is the most high-traffic area.

The answer to this question might be your most important consideration in negotiations with Wal-Mart. If you are able to obtain the evidence described in our companion article,  Gathering Evidence in a Wal-Mart Case, that will improve your negotiating position.

Stick to Your Guns and Don't Settle Prematurely

Other considerations when negotiating your claim with Wal-Mart may include the severity of your injury, the length of your medical treatment, your future prognosis and the amount of your lost wages. The higher those numbers are, and the longer your treatment, the greater your damages would be at trial, which represents a greater risk to Wal-Mart if a jury ends up hearing your case.

In the past, Wal-Mart did force most of its cases to trial and was very inflexible in terms of settlement, which can explain its relatively high rate of success. It most likely did this to intimidate plaintiffs -- but today's reality is somewhat different. Wal-Mart has greater incentives to settle now that the legal landscape has shifted somewhat from cases like Lanier V. Wal-Mart

Lanier v. Wal-Mart Stores Inc

In 2003,  Lanier v. Wal-Mart Stores, Inc., a landmark case in Kentucky, precipitated this shift. That decision shifted the burden of demonstrating that employees caused an unsafe condition -- or could have addressed it but did not -- to the store rather than the injured person. The court indicated that if a plaintiff could prove he or she fell and was injured due to the presence of a foreign substance on the floor, then a rebuttable presumption arises that Wal-Mart did not keep its store in reasonably safe condition. It then becomes the store's responsibility to show that it did exercise care in the maintenance of the premises.

The  Lanier  court recognized that the way that retail giants like Wal-Mart operate, with their method of self-service shopping, lends itself to accidents like customer falls. The court also explained that a photograph of the aisle where the plaintiff had fallen supported the idea that Wal-Mart arranges its displays in a way that draws customers' attention toward them instead of toward the floor, where hazards may be.

A case is only as strong as the facts underlying it. Plaintiffs' success rates vary widely for this reason. Only you, with your lawyer's advice, can decide whether to negotiate a resolution of your case or go to trial. But if your damages are severe, and you have a good claim for liability against Wal-Mart, don't let the fact that it is a large corporation deter you from having your day in court.

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