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How Is Pain and Suffering Calculated in a Slip and Fall Lawsuit?

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how is pain and suffering calculated in a slip and fall lawsuit

After an injury, victims may wonder, “how is pain and suffering calculated in a slip and fall lawsuit?” There are several ways pain and suffering may be calculated in slip and fall cases. While the concept of pain and suffering is subjective, the physical injuries victims suffer are apparent. The severity of a slip and fall victim’s injuries demonstrate the pain and suffering he or she has endured. There are various methods used to calculate the pain and suffering available in a slip and fall lawsuit.

Calculating Pain and Suffering in a Slip and Fall Lawsuit

People often ask, “how are personal injury damages calculated?” Due to its subjective nature, there is no precise method by which the financial value of a slip and fall victim’s pain and suffering can be measured. Insurance companies often dispute the monetary value of the pain and suffering slip and fall victims experience due to their injuries. Accordingly, insurance companies sometimes claim that slip and fall victims are exaggerating the pain and suffering they are experiencing. Insurance companies present arguments that cause a victim’s pain and suffering to be undervalued. 

However, there are factors that a judge or jury can use to calculate the pain and suffering a slip and fall victim experiences. For example, if your fall caused you to suffer visible injuries, such as bruising, this can increase the value of your pain and suffering. The value of your pain and suffering also increases if your fall resulted in an objective injury, such as a broken bone. Another factor that impacts your pain and suffering is the area of your body that was injured. A judge or jury is more likely to understand the pain you experienced if you suffered an injury to your knee, ankle, or leg as these are parts of your body that you use on a daily basis.  

In addition to your injuries, your physical condition prior to your fall also plays a role in how your pain and suffering are calculated. For example, a jury is less likely to believe a slip and fall victim who is male, physically fit, and in his mid-20s, suffered the same amount of pain as an elderly and infirm female. Judges and juries tend to give physically vulnerable victims the benefit of the doubt with regard to their pain and suffering. However, this calculation changes depending on the severity of the injury. A jury is likely to believe that a young, physically fit male slip and fall victim and endured extreme pain and suffering if his injury required emergency medical treatment and a prolonged period of hospitalization. A judge or jury will also give the victim’s claim of pain and suffering greater weight if his or her injury caused him or her to suffer a permanent disability. For example, the value of a victim’s claim of pain and suffering is higher if the victim is no longer able to walk without limping, as opposed to a victim who made a full recovery. Finally, the extent of your economic damages is also an indicator of your pain and suffering.

What Is Pain and Suffering?

Pain and suffering are non-economic damages. Along with this, the term “pain and suffering” has a specific meaning in a personal injury case. In a broad sense, pain and suffering mean the extreme physical discomfort that you experienced as a result of your injuries. The concept of pain and suffering also captures the mental trauma you experienced due to your fall and injuries. For example, you can claim mental trauma if you fell from a great height. You can also claim mental trauma if your fall caused you to suffer a visibly gruesome wound. For example, if your fall caused you to suffer an open fracture, i.e., you were able to visibly see a broken bone or a bone protruding from your skin, you can claim the effect of viewing this image as mental trauma. Specifically, you can claim that you suffered a mental injury from seeing such a horrible sight.

In addition to the immediate impact of such a sight, suffering also captures the long-term mental effects associated with a slip and fall. If your injuries caused you to suffer long-term mobility issues, you can claim mental suffering if you became depressed or angry because you were unable to walk or exercise. You can also claim mental suffering if you experienced other long-term psychological injuries, such as post-traumatic stress disorder. If you suffered a fall in a grocery store, you can claim mental suffering if you are no longer able to enter grocery stores or suffer anxiety while walking through grocery stores. 

What Are Economic Damages?

Economic damages are the financial losses you suffered as a result of your slip and fall. For example, if your injuries required emergency medical care, surgery, and physical therapy due to your fall, you can claim the cost of this medical treatment as your economic damages. You can also claim collateral expenses such as the cost of prescription drugs, medical equipment, and the cost of obtaining transportation as part of your economic damages. You can claim your lost wages if you were unable to work due to your injuries.

In addition to covering past expenses, you can also claim future expenses as your economic damages. For example, if you require future medical care, you can claim the cost of this future medical care in addition to the cost of your past medical care. If your injuries rendered you unable to work or reduced your ability to work, you can claim future lost wages or your reduced earning capacity as your economic damages.

Multiplier Method

The multiplier method is an alternative legal argument by which a personal injury victim’s pain and suffering can be calculated. Under this approach, your economic damages are multiplied according to the severity of your injuries. This method uses a 1 to 5 scale to rate the severity of a victim’s injury. For example, if your slip and fall caused you to suffer an open fracture in your ankle, this injury may be assigned a numerical value of 4. Similarly, if your fall only caused you to suffer a bruised leg, this injury may be assigned a value of 2. After the injury is assigned a numerical value, it is multiplied by the total amount of your economic damages. For example, if your economic damages total $40,000 and your injury has a value of 3, your non-economic damages, i.e., your pain and suffering, total $120,000.  

The key to the multiplier method is obtaining the highest multiplier value for your injury. Increasing the multiplier value requires strong advocacy regarding the severity of your injury, the effects the injury had on your life, and the length and intensity of your medical treatment. Highlighting your physical condition and age may cause a jury to increase the multiplier number for your injury. Finally, emphasizing the permanent effects or disfigurement caused by your injury may increase the multiplier number.

Per Diem Basis

Another method of calculating the value of your pain and suffering is the per diem basis. Per diem is Latin for “per day”. Under this method, your attorney calculates the number of days your injuries caused you to suffer pain. For example, if it took you six months to fully recover from your injuries, your attorney will argue to a judge or jury that you experienced pain for 180 days.  Following this, an argument must be made regarding the daily financial value of your pain and suffering. The daily financial value of your pain and suffering is then multiplied by the number of days you were in pain. For example, if the daily value of your pain and suffering is $50.00, the value of your pain and suffering is $9,000.  

Similar to the multiplier method, the key to the per diem method is successfully convincing a judge or jury of the number of days you suffered pain and the daily financial value of your pain. The values associated with the per diem method depend on the severity of your injury, the permanent effects of your injuries, and your economic damages. The severity of your injuries can increase or decrease the value of your pain and suffering.

How Comparative Negligence Affects Calculating Pain and Suffering

A slip and fall case is a premises liability claim. Due to the factually and legally complex nature of premises liability matters, victims often ask attorneys how to win a slip and fall claim. In order to win a slip and fall claim, you must prove that a hazardous condition was present on the owner’s property. You must also prove the property either knew or should have known of the hazardous condition and failed to repair or provide sufficient warning. You need to prove all the elements of your claim by a preponderance of the evidence, i.e., 51%.  

Injured victims sometimes ask, “when is a slip and fall not worth the money?” The answer depends on the strength of any evidence regarding notice, your level of negligence, and your economic damages. Property owners have several defenses they can assert, such as lack of notice and comparative negligence. Under Illinois law, a slip and fall victim is barred from recovering anything if he or she is deemed to be more than 50% at fault. In cases where property owners admit to having notice of the hazardous condition, it is argued that a victim is barred from recovering because he or she contributed to his or her injuries by failing to observe his or her surroundings. If a victim is found to be less than 50% at fault, he or she can still recover, but his or her award is reduced in proportion to his or her level of fault. For example, if a jury returns a total award of $100,000 but determines you were 30% at fault, you only recover $70,000. Because a comparative negligence defense has the effect of reducing your overall award, it is a factor that must be accounted for when evaluating the viability of your case, and when calculating an award that includes pain and suffering.

How an Attorney Can Affect How Pain and Suffering Is Calculated.

Obtaining a favorable pain and suffering calculation requires an effective presentation of your case. There is specific evidence a Chicago slip and fall lawyer can present which may bolster how your pain and suffering is calculated. Specifically, your attorney can present your pain and suffering by having expert and non-expert witnesses testify in court. While only you can describe your pain and suffering, testimony from your treating physician regarding the severity of your injuries could potentially increase your pain and suffering award. 

Jurors are often receptive to testimony by doctors who provided medical treatment to injured victims. Medical experts offer first-hand and objective testimony regarding the severity of a victim’s injuries. If you require future medical treatment, testimony by a medical expert regarding the severity of your injuries and the necessity of future medical treatment could also increase your pain and suffering award. The necessity of future medical treatment indicates your injuries are severe, and therefore painful. Testimony by your friends and family could also increase your pain and suffering award. Friends and family members can offer credible testimony regarding how your injuries affected you physically and emotionally. These individuals can describe who you were before your slip and fall, and who you became because of the pain and suffering you endured. The ability to effectively use expert and non-expert witnesses to provide compelling testimony regarding the effects of your injuries is one of the key qualifications you should remember when you are looking to find a good personal injury attorney.

About the Author

Kurt D. Lloyd is a plaintiff’s trial lawyer who focuses on medical malpractice and other catastrophic injury cases. He lives in Chicago and represents injured clients throughout Illinois. He is also the founder of Lloyd Law Group, Ltd.

Chicago accident lawyer Kurt D. Lloyd