D.M. fell into a deep pit in front of a restaurant when walking down the street on a sidewalk. The accident rendered D.M. severely injured. His knee required cortisone injections and arthroscopic surgery, and ongoing pain in the hip led to D.M. walking with a pronounced limp. Bogoroch & Associates secured D.M. a considerable settlement.
The Nature of the Case
D.M. was walking down the street one day, when he suddenly and unexpectedly fell into a deep pit in front of a restaurant. The pit had always been there, and historically was used as a coal chute, but in recent years was used to receive grocery and food deliveries to the restaurant. The pit was normally covered by a grate that could be walked upon.
But on this day, when D.M. was walking the grate had been removed, and no sign, cone or other warning existed. D.M. did not see the pit, and fell into it.
D.M. worked as a Material Handler and forklift operator, so his physical health was critical to his success on the job. The damage to his knee required several cortisone injections and arthroscopic surgery. His hip was also affected on the same side of his body, causing him to walk with a pronounced limp. Walking and even standing became difficult for D.M. after the accident.
Both the restaurant and City of B. had a legal duty to ensure that the sidewalk was safe to walk upon. Obviously, the restaurant knew about the chute, knew it was a hazard and did nothing to protect pedestrians on that day. It was clear that both the City and the restaurant had to be pursued with a legal claim.
Bogoroch & Associates issued a Statement of Claim under the Occupier’s Liability Act which required both the restaurant and the City to ensure the safety of the sidewalk.
Expert medical examinations were scheduled for D.M., and reports and analyses regarding the injuries, future care, and his general ability to carry on with his work and personal life. An accounting of future medical care as it related to the accident and potential loss of employment income was created. Photographs of the chute and the place of the accident were taken to provide visual evidence of the scene of the accident.
The case proceeded to mediation, at which time the defendants argued that D.M. was at least partially responsible for the fall as he should have been looking in front of himself to ensure his own safety while walking. While it is true that D.M. had to assume some responsibility, it was imminently clear that the restaurant and the City were responsible under law for sidewalk safety. Liability was shared.
A second issue affecting the case was a pre-existing degeneration of his D.M.’s hip. The defendants argued that the accident was not the source of the injury, as it had existed, to a much lesser degree, prior to the accident. Bogoroch & Associates argued that while D.M.’s injuries were intensified by his pre-accident vulnerabilities, it did not negate the fact that the accident itself was the cause and source of the hip injury.
The Thin Skull Principle – a defendant is responsible for injuries sustained by a victim and the effects they have based on the health of the individual as he is at the time of the accident.
The mediation stalled when both parties were significantly divided in their offers, but the mediator offered to write an appropriate settlement offer on a piece of paper and gave it to each party the opportunity to accept or reject the offer. The parties were then asked to write whether the offer was accepted or rejected back to the mediator, thereby ensuring their negotiating positions.
The offer was accepted by both parties, and a fair and reasonable settlement was agreed upon. The case did not have to proceed to trial, and D.M. was able to move in with his life and physical recovery.
*Please note that the settlement amounts will vary from case to case and are not reflective of what your case may be worth.