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Trip And Fall--liability Defense--traumatic Brain Injury?

Discussions relating to Personal Injury Law

Trip And Fall--liability Defense--traumatic Brain Injury?

Postby Tibault » Sun Dec 04, 2016 9:22 am

Dear Dr. Settlement-

In mid October, I was walking down a public sidewalk when I tripped and fell. The sidewalk was broken, uneven by at least 3 inches. the sidewalk was in front of a private residence. I tried to break my fall, but fell and struck the side of my head on the sidewalk. Someone was walking behind me , came to my assistance and helped me to my feet after about a minute. before that person left, he gave me his phone number. I went to the ER right away, went through triage and after having a CT scan of my head was told that no abonormalities were shown. After having continuing headaches and neck pain, I saw my own doctor 2 days later. At that time I was examined and diagnosed as having a clavical strain. I was told to wear a clavical collar to stabilize my neck, percribed codine and naproxin for pain and told to take 4 weeks off work. Since that appt., I was seen by another Doctor who recommended physical therapy treatment for my neck. At this time, my medical specials are just over $2,000 not counting whatever the Phys. therapy will cost. I have written a letter to the homeowner asking her to notify her insurance carrier of the circumstances. Do you think I can handle this without a lawyer? Thank you for your input.

ANSWER: Hi Dennis,

I think you have a more serious injury than you might realize, so I am going to put in an hour or so to introduce a new topic to your claim.

In direct answer to your question, if all you have are the injuries you describe, and if you are willing to do some work, and if you can follow instructions, then yes, you are a candidate for self help settlement of a trip and fall insurance claim.  But if you have any problems as described to be caused by post concussive syndrome, then you might want to see an attorney inasmuch as those kinds of damages are complex to prove, AND the award for mental problems can be significant.

I will get to the rest of your case later, but the most important thing right now is for you to learn about what may need diagnosis and treatment first.  

#1. MILD BRAIN INJURY—POST CONCUSSIVE SYNDROME—POSSIBLE TMJ So, let’s first address that topic of the most significant potential injury, your traumatic brain injury.  Research that term, and especially post concussive syndrome and you will see some of the symptoms of that condition.  My bet is that you DO HAVE A MILD BRAIN INJURY.  It is untreated for three reasons.

First off, you most likely denied any loss of consciousness, right?  Second, if there is no loss of consciousness and no complaints of the symptoms of brain injury, most doctors who are called upon to treat injuries will not make referrals to have the patient tested for brain injury.  Third, some doctors wrongly believe that a negative CT scan rules out traumatic brain injury: IT DOES NOT.

Let’s first examine what is a concussion(Google) and what is a loss of consciousness.  You DID HAVE A CONCUSSION, that much is for sure.  So traumatic brain injury is in play in your claim since you suffered a brain concussion.  

Post-concussion syndrome, also known as post concussive syndrome or PCS, is a set of symptoms that a person may experience for weeks, months, or even years after a concussion, a mild form of traumatic brain injury. As many as 50% of patients who have experienced concussion have PCS, and some sources say as many as 90% of patients experience post concussion symptoms.

People who have had concussions may experience physical, mental, or emotional symptoms. Symptoms can appear immediately or weeks to months after the initial injury.

Physical symptoms can include:

•   headache •   dizziness •   impaired balance

•   nausea and/or vomiting •   fatigue or sleepiness •   inability to sleep •   decreased libido •   sensitivity to noise or light

•   ringing in the ears •   double or blurred vision

•   decreased sense of taste, smell, or hearing Emotional symptoms may include:

•   irritability •   anxiety •   restlessness •   depression

•   lack of emotion •   emotional lability or mood swings •   lack of ability to tolerate stress or alcohol

•   aggression

Cognitive or mental symptoms can include:

•   amnesia or difficulty remembering things •   confusion or impaired cognition

•   impaired judgment

•   slowed cognitive processing

•   difficulty with abstract thinking

•   difficulty concentrating

•   decrease in work performance

•   decrease in social skills

LOSS OF CONSCIOUSNESS—not essential to diagnosis of post concussive syndrome, but sometimes the length of time unconscious will be used to judge the degree of the brain injury.

The patient is typically the primary source who is asked the most significant question: Did you lose consciousness as a result of your injury? Most of my clients who actually later recalled that they did not remember moments just after being struck in the head, AT FIRST DENIED ANY LOSS OF CONSCIOUSNESS TO THE POLICE AND TO THE EMERGENCY ROOM.  

WHY?  First, most people equate loss of consciousness with being unconscious for some time.  But in fact, “loss of consciousness” means loss of conscious awareness. Hence, loss of consciousness can range from being briefly dazed to several days of coma.  In fact, in order for a brain injury victim to answer such a question, they would have to undergo extensive examination recollecting past events.  Any change in mental state can be significant in understanding a patient's condition and if loss of memory(amnesia) occurred immediately before or after the trauma.

When you struck your head on the pavement, probably there was a brief loss of consciousness.  Even if you never before reported it, now is the time to correct your records with a letter to your doctor explaining that you DID have a brief loss of consciousness.  

Loss of Consciousness http://www.settlementcentral.com/page0134.htm  After Accident or Injury

How do you correct records with the medical providers and the insurance adjusters?  http://www.settlementcentral.com/page7004.htm   Letters to insurance claim adjuster.

This page talks about how to confirm conversations with the insurance adjusterhttp://www.settlementcentral.com/page0460.htm   with loss of consciousness notify the insurance adjuster as soon as you recall it—do NOT wait until you send your demand letter.


TMJ—temporomandibular joint syndrome

This is another term I want you to research.  When an accident victim strikes his head, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced.  One of the consequences of jaw joint displacement is headaches.  All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.  http://www.lectlaw.com/med/med04.htm http://en.wikipedia.org/wiki/Temporomandibular_joint_disorderhttp://www.tmjdoctorofmaryland.com/

There are two at-home ways to see if your jaw joint is moving.  First, find the spot in front of the little lobes on the middle of your ears.  These are called “tragus”: http://www.infovisual.info/03/048_en.html

Now, put your fingers just in front of the tragus and over the jaw joint and open and close your mouth.  If the disc is far out of place, you will feel a click.  Better is for someone to stand behind you as you are seated and perform the same test.  That person can feel the click if your jaw joint disc is far out of place.  Get to a dentist who specializes in TMJ, but first be sure to read up on it so you do not go in talking about all the stressors in your life(since that is a favorite defense of the insurance industry to any TMJ claim).



You are lucky that you contacted me BEFORE you gave any statement to an insurance adjuster.  If sounds like you are assuming that the homeowner is liable, but that is far from certain.  Hence, you need to be prepared for the questions she will ask you.  

The property owner is NOT responsible for the safety of people walking on the sidewalk in front of their house.  They DO have a duty to eliminate any known unsafe conditions, or to warn of unsafe conditions.  Hence, the first question is whether or not the sidewalk, as is, would present an unsafe condition to the passerby who IS WATCHING WHERE HE IS WALKING.

Premises Liability(Slip Or Trip And Fall Accidents) http://www.settlementcentral.com/page3006.htm   is an excellent review of premises liability or slip and fall accident confusion as to liability.  There are three good examples on that page to show you the difference between liable property owners and those whom one cannot sue. So here is your lesson: assume that they will claim that you are at least one-third at fault since if the crack was large enough for you to trip on, IT SURELY WAS LARGE ENOUGH FOR YOU TO SEE.  And your failure to watch where you were walking is clearly a partial cause of your injury.

DO NOT BE DISCOURAGED about that defense, but just be aware that it will be raised if your claim has any value.  Without telling anyone about your visit, go into the scene and spot the visual distractions nearby.  Maybe it was near a corner, or something else could have attracted your eye.  Maybe it was nearing dark and there are no lights there. Take your cell phone or small camera and take some photos of the area.  GATHER ALL EVIDENCE NOW: DO IT QUICKLY AND QUIETLY, without notifying the property owner just yet. http://www.settlementcentral.com/page0216.htm  Evidence to Support Your Personal Injury Insurance Claim of Premises Liability, Slip and Fall.  

GET PHOTOS: these mostly pertain to stores, but you have the right of public access on the sidewalk and you can shoot at will.http://www.settlementcentral.com/page0200.htm  Photographs to Preserve Evidence of Negligencehttp://www.settlementcentral.com/page0130.htm  Best Photo Tips for Insurance Claims of Negligence: How to Photograph in a Storehttp://www.settlementcentral.com/page0161.htm  Store Slip and Fall Photos ARE NOT Trespassing Since if it Public Access

GET THE WITNESS STATEMENT NOW—before the insurance adjuster contacts the witness.  Three things to help you would be how visible the crack depth was to the witness, and how hard you fell and if she saw your head hit the pavement, and whether you had a moment of unconsciousness.  Witness Statements Settle Personal Injury Insurance Claims http://www.settlementcentral.com/page0196.htm xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Be Prepared for the Kinds of s the Insurance Adjuster Might Ask you.

Of course we would like to avoid giving any recorded statement, so ask the questioner to send a list of questions since you do not think well in quick pressure situations.  Fat chance she will do that, but you could try.  At a minimum, you need to be prepared for an interview.

We have not made up a list of questions to expect for the premises liability part of the free side of my website, so you will just have to use the following as a guide to the range of questions to expect.  This is a list of questions insurance adjusters ask http://www.settlementcentral.com/page0207.htm  injured claimants.

Here are two pages that tell what to do now if you have already given anyone a recorded statement  http://www.settlementcentral.com/page0058.htm  Recorded or Written Statement To The Adjuster After Injury Accident?http://www.settlementcentral.com/page8014.htm  What to do if you have already given a recorded statement to the insurance adjuster


FINAL TOPIC: Effective communication with insurance claims adjusters.  Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm

Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more.   Always have your information and ammunition in writing to give to the adjuster. Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding(NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be. Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE. I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.

Best Wishes, Dr. Settlement, J.D.(Juris Doctor) http://www.SettlementCentral.Com

---------- FOLLOW-UP ----------

Dr. Settlement, you are outstanding. I have a brief follow up. I wrote the homeowner 2 dyas after the accident to inform her of the circumstances and ask her to have her insurance person contact me. Aftrt 10 business days had past, I sent a second, certified/return reciept letter with roughly the same content as the first-I added a very polite second request for the Ins. person to contact me. If there is no response in 15 days from the time the letter was recieved, how should I handle it?



ANSWER: Thanks for the nice feedback comments, Dennis.  I appreciate that.

One thing to be sure of is whether or not you have hit the homeowner or just a renter.  Oftentimes renters fail to buy insurance.

If you got the name out of the county assessor's records as owner of record, that should be correct.  

One additional spur would be to write to his mortgage company.  Two ways to find that.

#1. Most mortgage companies collect for the taxes and pay the taxes.  Hence, the county treasurer will have the name and address of where the tax statements are sent.  OR

#2. Go to the county auditor's records under that name and you will find that he recorded a deed of trust.  It probably has been sold to an investor by now, but you can send them the letter.

At the same time, you might get a paralegal or even a beginning attorney to draft a complaint for damages.  Send that and see what happens.  Worst case is you have to hire an attorney for representation.  Of course, if you DO have the kind of mental residual from your TBI that I suspect you have, an attorney might be best anyway.

Best wishes,

Dr. Settlement, J.D.(Juris Doctor)


---------- FOLLOW-UP ----------

Dear Dr. Settlement-

I found out that the street I tripped and fell on is a public/city maintained street. My followup question to you is, is there any responsibility of the property owner at all in this matter? Is there a neglect or other angle I can reference to justity filing against the property owner as well as the city?

Thanks for any input you can provide.

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Trip And Fall--liability Defense--traumatic Brain Injury?

Postby Jenarae » Sun Dec 04, 2016 4:46 pm

Hello again, Dennis,

First, let’s clarify what you mean: is it a sidewalk or, as you now say, a street.  I do know that frequently in an accident the property owner is charged with a breach of duty to maintain a sidewalk; but I have never heard of any duty to maintain a street, unless of course it is a public street.

The liability will fall upon the party whose duty it is to maintain the sidewalk.  Some cities(recently New York, for example) have by ordinance placed the burden squarely upon the property owner.  Sometimes it depends upon the type of danger.  For example, snow removal is usually the duty of the property owner, but major structural repair is the duty of the city. If the statute of limitations is going to run on you, then sue BOTH the property owner and the city.  If not, then make your claim versus the city.  Be sure to contact the risk manager and get instructions on how to proceed with a claim inasmuch as failure to abide by the rules can render a claim noncompliant, and hence if your statute of limitations were to run, you could be out of luck.  

The city risk manager will let you know if she thinks the property owner has the duty to do structural repairs.  Don’t be afraid to discuss the claim with her and get some information on the process.  HOWEVER, DO NOT LET YOURSELF BE RECORDED AT FIRST: read sample questions for auto accident adjuster recordings on my site first.  

Best Wishes, Dr. Settlement, J.D.(Juris Doctor)Http://www.SettlementCentral.Com  
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