My daughter who is three was involved in a accident with a store shopping cart. The shopping cart wheel came off and when she leaned on it, it toppled on her. She went to the emergency room and everything was alright except for some soreness. The bills for this incident came to about $400.00. The company made a offer of 500.00 dollars to settle this claim. Is that all she is entitle to? How do you figure out what she should be getting for their negligence?
2 Answers from Attorneys
Re: How Much?
The issues involved in your daughter's claim are pretty straightforward. Their offer to settle seems to communicate a willingness to reimburse for your daughter's emergency room bill and to pay an additional amount for pain and suffering. Your question implies that she has fully recovered and required no additional treatment. With no residual injury and no additional treatment required, it would not appear that the time, trouble and expense of pursuing the case further would be warranted.
On the other hand, the question of "How much?" is one that requires an analysis of several factors. While the fact that a wheel came off a shopping cart seems to strongly suggest negligence, there could be a question of whether the store had knowledge of the defect. If not, it might avoid responsibility. Assuming they are responsible, then the analysis moves to the issue of the extent of injury. But for soreness, it sounds as though your daughter was not seriously injured, thank God. There is a legal principle called, "Damnum absque injuria". Roughly translated it means that it is possible to have been damaged without significant injury. This appears to be your daughter's case.
My recommendation is to respond to their offer with a question regarding whether or not there is a med pay plan for persons injured on the premises. In other words see if they will pay the medical bill under their premises liability policy, and pay you for the benefit of your daughter the $500.00 they have offered to settle the liability portion of the claim.
Assuming there are no other factors involved in this situation, a settlement on these terms would be reasonable.
If there are other factors, such as aggravating circumstances, continuing problems with your daughter related to the injury she sustained, a significant change in her behavior, or the like, I would be happy to review the matter further with you.
If you wish to do so, you may contact me directly at my office at 1-800-766-2889.
Thomas J. Hough, Jr.
Georgia Bar No. 368700
Re: How Much?
If the store had Med-Pay coverage, then they are required to pay any related medical bills, up to the limits of the med-pay policy, just because the injury occurred on their premises. Usually these policies have low limits of $1,000 or so.
To get any bills above the limits paid, or to get ANY pain & suffering, you first have to prove that the incident was the store's fault. It appears they are willing to accept some degree of fault here since they are offering you a little above the actual bills. Once you have established "fault" we then get to your specific question of "how much".
There are no formulas or guidelines under Georgia law to tell you how much you are entitled to. Other than the med-pay benefits, the only thing the store would be REQUIRED to do, is to pay whatever verdict a jury renders in your favor. Anything short of a jury verdict is based solely on negoitations which in turn are based on what each side thinks a jury would do if the case went that far.
If the injuries have resolved and the total medicals were only $400, I doubt that a jury would give you much more. And, when you factor in all the costs of actually going to court, you might even end up with less.
Still, it won't hurt anything to counter-offer for a little more.