Slip and Fall / Premises Liability Demand Letter - Illinois

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF ILLINOIS

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Illinois ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Illinois

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Claim Number: [Claim Number, if assigned]

Dear [Recipient Name]:

This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address], [County] County, Illinois. This letter constitutes our formal demand for settlement and provides a comprehensive analysis of liability under Illinois law, our client's injuries, and damages.

I. ILLINOIS-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under 735 ILCS 5/13-202, an action for personal injury generally must be commenced within two (2) years after the cause of action accrued. Public-entity claims may have shorter or different requirements as discussed below. Based on counsel's case-specific accrual and tolling analysis, the present filing deadline is [Expiration Date].

B. Illinois Premises Liability Duty Standards

The Illinois Premises Liability Act abolishes the invitee-licensee distinction and imposes reasonable care under the circumstances regarding the state of the premises and acts done or omitted there. 740 ILCS 130/2. The current official code separately displays and labels the 1995 amendment text held unconstitutional; the operative pre-amendment text controls.

Our client was a lawful visitor (business invitee) on your insured's premises. Your insured owed our client the duty to exercise reasonable care in maintaining the premises in a reasonably safe condition.

For a condition-based claim not created by the owner or its agents, Illinois applies the Restatement (Second) of Torts § 343 framework. The evidence must support findings that:

1. The existence of a condition on the premises that presented an unreasonable risk of harm;
2. The defendant knew or should have known of the condition;
3. The defendant should have anticipated that persons on the premises would fail to protect themselves from the danger;
4. The defendant failed to use reasonable care and that failure proximately caused injury.

Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468, 343 N.E.2d 465, 472 (1976); Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1039-40, 735 N.E.2d 662, 667-68 (1st Dist. 2000).

C. Knowledge Requirement Under Illinois Law

When the defendant did not create the condition, the claimant ordinarily must prove actual or constructive notice. Tomczak, 315 Ill. App. 3d at 1040-42, 735 N.E.2d at 668-70.

Actual Knowledge: Established when the defendant or its employees knew of the hazard prior to the incident.

Constructive Knowledge: Requires facts permitting a reasonable inference that the condition existed long enough that ordinary care would have discovered it. The duration and inspection evidence are material. Tomczak, 315 Ill. App. 3d at 1041-42, 735 N.E.2d at 669-70.

D. Defendant-Created Condition

Illinois does not dispense with creation or notice merely because a business uses self-service methods. Under Donoho, however, notice is unnecessary when evidence supports a reasonable inference that the defendant or its employees created the condition. A substance's relationship to the business, its location, and the defendant's practices may supply that inference, but the relationship alone is insufficient. Donoho v. O'Connell's, Inc., 13 Ill. 2d 113, 122-25, 148 N.E.2d 434, 439-41 (1958).

[If applicable:] The evidence supports creation by your insured because [identify the employee conduct, business practice, location, and related facts].

E. Modified Comparative Negligence

Illinois follows a modified comparative negligence rule with a 51% bar. Under 735 ILCS 5/2-1116, a plaintiff's recovery is reduced by the plaintiff's percentage of negligence. However, if the plaintiff's negligence is more than 50% of the proximate cause of the injury, the plaintiff is completely barred from recovery.

Our client exercised reasonable care and bears no fault for this incident.

F. Snow and Ice Liability in Illinois

Illinois generally imposes no duty on a landowner or possessor to remove natural accumulations of ice, snow, or water. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 227-29, 938 N.E.2d 440, 447-49 (2010). Liability analysis differs when evidence shows that the defendant created or aggravated an unnatural accumulation. Also, the Snow and Ice Removal Act, 745 ILCS 75/2, protects persons removing snow or ice from sidewalks abutting residential property from liability for resulting snowy or icy conditions unless the misconduct was willful or wanton. Relevant unnatural-accumulation evidence may include:

1. The property owner's affirmative conduct caused an unnatural accumulation of ice or snow;
2. The condition was traceable to a defective drainage system or other artificial source under the defendant's control; or
3. Removal efforts created or aggravated the unnatural accumulation, subject to any applicable statutory immunity.

Unnatural accumulation occurs when the property owner's negligent acts or omissions cause water, snow, or ice to accumulate, or substantially add to the dangers of the natural accumulation.

[If applicable:] The ice/snow condition in this case constituted an unnatural accumulation because [explain - e.g., water from downspout, improper drainage, melting/refreezing caused by the building, failure to properly salt after voluntarily undertaking removal, etc.].

G. Open and Obvious Doctrine

An open and obvious condition weighs against duty because foreseeability and likelihood of injury ordinarily are slight, but it is not an automatic bar; courts still apply the full duty analysis. Illinois recognizes distraction and deliberate-encounter exceptions when supported by facts. Bruns v. City of Centralia, 2014 IL 116998, ¶¶ 16-22, 34-36.

1. The distraction exception applies - the owner should expect that the invitee will be distracted and fail to protect themselves;
2. The deliberate encounter exception applies - the owner should expect that the invitee will proceed despite the obvious danger because doing so is necessary.

The distraction exception requires evidence of an actual distraction the possessor had reason to expect; merely looking elsewhere is insufficient. Bruns, 2014 IL 116998, ¶¶ 22-30.

[If applicable:] The condition was not open and obvious because [explain], or the distraction/deliberate encounter exception applies.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:

• All surveillance video footage from the date of incident (interior and exterior cameras)
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports prepared by employees or management
• Witness statements taken at the time of incident
• Maintenance logs and repair records for the area of the fall
• Inspection records and checklists for the date of incident and prior 12 months
• Cleaning schedules and logs
• Weather records and reports from the date of incident
• Prior complaints regarding the hazardous condition
• Prior incidents or falls at the same or similar location
• Work orders and maintenance requests for the area
• Photographs of the incident location
• Written policies and procedures for maintenance, inspection, and safety
• Training records for employees responsible for premises safety
• All communications regarding the incident
• Insurance policies applicable to this claim

Illinois does not recognize spoliation as an independent tort. A negligent-spoliation claim may proceed under ordinary negligence only when a duty to preserve arose through agreement, contract, statute, special circumstances, or a voluntary undertaking, and the evidence was foreseeably material to potential litigation. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 194-96, 652 N.E.2d 267, 270-71 (1995); Martin v. Keeley & Sons, Inc., 2012 IL 113270, ¶¶ 26-28. Please suspend routine deletion or overwriting of the identified material.

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], [County] County, Illinois, which is [describe property type - e.g., "a retail shopping center," "a grocery store," "a restaurant," "an apartment complex," "an office building," "a hotel," etc.]. At all relevant times, [Property Owner Name] owned, operated, possessed, maintained, and/or controlled the subject premises.

[If property manager involved:]
[Management Company Name] was responsible for the day-to-day management, maintenance, inspection, and safety of the premises.

B. The Hazardous Condition

On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically: [Describe the hazardous condition in detail - e.g., liquid on the floor, uneven surface, ice accumulation, debris, etc.]

[Describe condition characteristics that establish notice - e.g., dirty appearance, tracked footprints, size of spill, duration based on witness testimony, weather conditions, etc.]

C. The Incident

On [Date of Incident], at approximately [Time], our client was [describe what client was doing] when [he/she] encountered the hazardous condition described above. [Detailed narrative of the fall, including what client was doing, how the fall occurred, what body parts impacted the ground, etc.]

Our client did not observe the hazardous condition prior to the fall because [explain why - e.g., the substance was clear, lighting was inadequate, attention was appropriately directed elsewhere, condition was concealed, etc.].

D. Your Insured's Knowledge

[Select and customize applicable theory:]

Actual Knowledge: Your insured had actual knowledge of the hazardous condition based on:

• [Prior complaints about the condition]
• [Employee awareness of the condition]
• [The condition was created by defendant's employees]
• [Other evidence]

Constructive Knowledge: Your insured had constructive knowledge because:

• The hazardous condition existed for a sufficient length of time such that it should have been discovered through reasonable inspection
• [Describe evidence of duration - appearance, witness testimony, etc.]
• [Describe inadequate inspection procedures]

Defendant-Created Condition: The hazard was more likely created by your insured or its employees because [identify evidence supporting the inference].

IV. LIABILITY ANALYSIS

A. Duty of Care

Your insured owed our client the duty to exercise reasonable care in maintaining the premises in a reasonably safe condition. This duty includes the obligation to discover and remedy dangerous conditions, or to warn of such conditions if they cannot be remedied.

B. Breach of Duty

Your insured breached this duty by:

1. Failing to discover the hazardous condition through reasonable inspection;
2. Failing to remediate the hazardous condition;
3. Failing to warn of the hazardous condition;
4. Failing to implement adequate inspection and maintenance procedures;
5. [Additional breaches specific to the case]

C. Causation

The hazardous condition was the direct and proximate cause of our client's fall and resulting injuries. But for your insured's negligence in allowing this dangerous condition to exist, our client would not have fallen and would not have sustained the injuries detailed herein.

D. Comparative Fault - Rebutted

Our client's conduct must be evaluated under 735 ILCS 5/2-1116 and the circumstances shown by the evidence. Our client:

• Used ordinary care while traversing the premises;
• Directed attention reasonably under the circumstances;
• Could not have observed the hazard through the exercise of ordinary care because [explain].

V. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

As a direct and proximate result of the fall, our client sustained the following injuries:

Primary Diagnoses:

• [Injury 1]
• [Injury 2]
• [Injury 3]

B. Treatment Summary

Emergency Treatment - [Date]:

• Provider: [Hospital/Facility Name]
• Treatment: [Description]
• Findings: [Diagnosis, imaging results]

Follow-Up Care:

• Provider: [Name]
• Dates: [Range]
• Treatment: [Description]

Specialist Care:

• Provider: [Name, Specialty]
• Dates: [Range]
• Treatment: [Description]

Physical Therapy/Rehabilitation:

• Provider: [Name]
• Duration: [Sessions/weeks]
• Treatment: [Description]

Surgical Intervention (if applicable):

• Procedure: [Description]
• Date: [Date]
• Surgeon: [Name, Facility]

C. Current Status and Prognosis

[Describe current condition, maximum medical improvement status, permanent impairment, ongoing symptoms, and future treatment needs]

VI. DAMAGES

A. Past Medical Expenses

B. Future Medical Expenses

Based on our client's treating physicians' opinions, future medical care will include:

C. Lost Wages and Earning Capacity

D. Pain and Suffering / Non-Economic Damages

Our client has experienced significant pain, suffering, and diminished quality of life:

• Physical pain from injuries sustained
• Emotional distress, anxiety, and depression
• Loss of enjoyment of life and recreational activities
• Interference with family relationships and activities
• Permanent impairment and scarring
• [Other non-economic damages specific to case]

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the available liability evidence, the severity of our client's injuries, and the documented damages, we hereby demand the sum of:

$[DEMAND AMOUNT]

[OR - Policy Limits Demand:]

TENDER OF THE FULL POLICY LIMITS OF $[AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].

Should you fail to respond to this demand within the specified time, or should you fail to make a reasonable offer, we will file suit in the Circuit Court of [County] County, Illinois, without further notice.

VIII. POLICY-LIMITS COMMUNICATION

[For policy limits or excess exposure cases:]

Under Haddick, an insurer's duty to settle may arise after a third party makes a within-limits demand when, at that time, there is a reasonable probability of an excess recovery and a reasonable probability of liability against the insured. Haddick ex rel. Griffith v. Valor Insurance, 198 Ill. 2d 409, 416-18, 763 N.E.2d 299, 304-05 (2001). If those case-specific conditions are satisfied here, please evaluate this demand promptly and communicate it and any limits issue to your insured.

IX. GOVERNMENT ENTITY CLAIMS

[USE THIS SECTION ONLY IF DEFENDANT IS GOVERNMENT ENTITY]

Public-entity procedures depend on the defendant. An ordinary injury action against a local public entity or employee generally must be commenced within one year under 745 ILCS 10/8-101(a); the former local notice provision in Section 8-102 is repealed. A tort claim against the State ordinarily belongs in the Court of Claims, whose current Section 22 generally requires other claims to be filed within two years. For personal injury, 705 ILCS 505/22-1 requires notice within one year to both the Attorney General and Court of Claims clerk unless the claim itself is filed within one year. Section 8(d) supplies Court of Claims jurisdiction and generally caps non-vehicle tort awards at $2,000,000 per claimant. Counsel must identify the correct entity, forum, immunity, deadline, and notice route.

X. DOCUMENTATION ENCLOSED

The following documents are enclosed in support of this demand:

• Complete medical records from all treating providers
• Itemized medical bills
• Photographs of the incident location
• Photographs of our client's injuries
• Incident report (if obtained)
• Employment records and wage verification
• [Other supporting documentation]
• HIPAA authorizations

XI. CONCLUSION

The available evidence supports liability because your insured [created / actually knew of / reasonably should have discovered] the condition and failed to take reasonable corrective or warning measures. Our client exercised reasonable care under the circumstances. We urge you to give this matter prompt attention.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Illinois ARDC No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

ILLINOIS-SPECIFIC PRACTICE NOTES

• Modified Comparative Fault: Under 735 ILCS 5/2-1116, plaintiff is barred from recovery if more than 50% at fault.

• Joint and Several Liability: Illinois has modified joint and several liability. Under 735 ILCS 5/2-1117, all defendants are jointly and severally liable for the plaintiff's medical and medically related expenses; for all other (non-medical) damages, a defendant less than 25% at fault is severally liable only for its proportionate share, while a defendant 25% or more at fault remains jointly and severally liable.

• Natural Accumulation Rule: Important in snow/ice cases - property owners generally not liable for natural accumulations. Focus on proving unnatural accumulation.

• Creation versus Notice: Self-service operations do not automatically replace creation or notice. Donoho permits a creation inference only when additional facts make employee creation more likely than third-party creation.

• Spoliation: Illinois does not recognize an independent spoliation tort. Negligent spoliation uses ordinary negligence principles and requires a duty to preserve plus causation and damages. Boyd; Martin.

• Medical Bills: Section 8-1901 concerns offers or payments for medical services as admissions of liability; it does not cap medical-expense proof. Under Wills v. Foster, a claimant may seek the reasonable value of necessary medical services notwithstanding collateral-source payments or write-offs, subject to evidentiary proof of reasonableness.

• Government Claims: Local claims generally use 745 ILCS 10/8-101; Section 8-102 is repealed. State tort claims generally use the Court of Claims Act, including 705 ILCS 505/8(d), 22, and 22-1.

• Venue: Generally proper where defendant resides or where cause of action arose. 735 ILCS 5/2-101.

SOURCES AND REFERENCES

• 735 ILCS 5/13-202 — personal-injury limitation after accrual
• 735 ILCS 5/2-1116 and 2-1117 — comparative fault and joint liability
• 735 ILCS 5/2-101 — venue
• 740 ILCS 130/2 — premises-liability duty and unconstitutional-text label
• 745 ILCS 75/2 — residential sidewalk snow-removal immunity
• 745 ILCS 10/8-101 and repealed 8-102 — local-public-entity timing and repealed notice
• 705 ILCS 505/8(d), 22, and 22-1 — Court of Claims jurisdiction, limit, filing, and notice
• Bruns v. City of Centralia — open-and-obvious duty analysis and exceptions
• Martin v. Keeley & Sons, Inc. — negligent-spoliation duty
• Wills v. Foster — reasonable medical expenses and collateral sources
• Genaust v. Illinois Power Co. and Tomczak v. Planetsphere, Inc. — condition-based duty and notice
• Krywin v. Chicago Transit Authority — natural-accumulation rule
• Boyd v. Travelers Insurance Co. — negligent spoliation under ordinary negligence
• Donoho v. O'Connell's, Inc. — defendant-created foreign substance inference
• Haddick ex rel. Griffith v. Valor Insurance — third-party duty-to-settle trigger