Slip and Fall / Premises Liability Demand Letter - Montana

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF MONTANA

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

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] in [City], [County] County, Montana. This letter constitutes our formal demand for settlement.

I. MONTANA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Montana Code Annotated § 27-2-204 generally provides a three-year period for a liability not founded on a written instrument. The statute states the period, but accrual and any more specific limitation depend on the pleaded claim and facts. Do not calculate an expiration date solely from the incident date without an accrual, defendant, tolling, and claim-specific review.

Limitations review: [Describe accrual, special defendant, tolling, and calculated deadline]

B. Montana Comparative Negligence

Montana follows modified comparative negligence under Mont. Code Ann. § 27-1-702. Claimant negligence does not bar recovery when it is not greater than the negligence of the person or combined negligence of the persons against whom recovery is sought. Thus, equal fault does not itself bar recovery; fault greater than the comparison group does. Any award is reduced in proportion to the claimant's percentage of negligence.

Our client was exercising all reasonable care and bears no fault for this incident.

C. Montana Premises Liability Standards

Unified Duty of Reasonable Care:
Montana abandoned status-based invitee, licensee, and trespasser rules in favor of ordinary care under the circumstances. A possessor has a duty to use ordinary care in maintaining premises in a reasonably safe condition and to warn of hidden or lurking dangers. Whether premises are reasonably safe depends on their use, setting, physical characteristics, foreseeable users, and the particular hazard. Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985); Richardson v. Corvallis Public School District No. 1, 286 Mont. 309, 950 P.2d 748 (1997); Steichen v. Talcott Properties, LLC, 2013 MT 2, 368 Mont. 169, 292 P.3d 458.

D. Montana "Open and Obvious" Doctrine

Montana does not permit a possessor to avoid liability merely because a condition is open and obvious. The possessor may be absolved only when the possessor should not have anticipated harm despite the claimant's knowledge or the condition's obviousness. Knowledge and obviousness remain relevant to breach and comparative negligence, and whether harm should have been anticipated is ordinarily fact-specific. Richardson, 286 Mont. at 321-22; Steichen, 2013 MT 2, ¶¶ 16-21.

Here, the hazardous condition was NOT open and obvious because: [Explain].

E. Montana Snow and Ice Liability

Montana's ordinary-care framework applies to snow and ice. A possessor cannot avoid liability solely because snow or ice accumulated naturally or was open and obvious; the question is whether the possessor should have anticipated harm and used ordinary care under the circumstances. Artificial creation or aggravation of a winter hazard remains relevant, but it is not the only possible basis for liability. Richardson, 286 Mont. at 321-22; Benson v. Heritage Inn, Inc., 292 Mont. 268 (1998).

[If snow/ice case:] Your insured failed to exercise reasonable care in addressing the snow and ice accumulation that caused our client's fall.

F. No Non-Economic Damage Cap Applies

Montana Code Annotated § 25-9-411 is a medical-malpractice noneconomic-damages limitation and does not govern an ordinary premises claim merely because the claimant seeks noneconomic damages. No general compensatory-damages cap was identified in the current authorities reviewed for an ordinary claim against a private premises defendant. Governmental limits, claim-specific statutes, comparative negligence, and other reductions may still apply.

Only punitive damages are capped: under Mont. Code Ann. Section 27-1-220(3), a punitive award may not exceed the lesser of $10 million or 3% of the defendant's net worth, and punitive damages are available only on proof of actual fraud or actual malice (Mont. Code Ann. Section 27-1-221).

G. Notice Requirements for Government Claims

Montana Tort Claims Act: Under Mont. Code Ann. § 2-9-301, a claim against the State must be presented in writing to the Department of Administration. Suit may not be filed until final denial; the Department has 120 days to grant or deny the claim, failure to act is treated as denial, and receipt tolls limitations for 120 days. A claim against a political subdivision must be presented to and filed with its clerk or secretary.

Section 2-9-108 generally limits governmental tort liability to $750,000 per claim and $1.5 million per occurrence. Section 2-9-105 makes the State and other governmental entities immune from exemplary and punitive damages.

[If applicable:] Proper notice was provided on [Date].

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident, including:

• All surveillance video footage from the date of incident
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports
• Maintenance logs and repair records
• Inspection records and checklists
• Cleaning schedules and logs
• Weather records from the date of incident
• Snow removal logs and contracts
• Prior complaints and prior incidents
• Photographs of the incident location

Montana courts have discretion to impose proportionate sanctions when a party breaches a duty to preserve evidence in anticipation of litigation and the loss causes prejudice. The remedy is fact-specific; default requires proof of duty, breach, significant prejudice, and sufficiently egregious circumstances. Fahrnow v. E-5 Oil Services, 2025 MT 220, ¶¶ 24-32.

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type] in [City], [County] County, Montana. At all relevant times, [Property Owner Name] owned, operated, and/or controlled the subject premises.

B. The Hazardous Condition

On the date of the incident, a dangerous condition existed on the premises: [Describe hazard in detail]

[CUSTOMIZE BASED ON TYPE OF HAZARD:]

Wet/Slippery Floor: A liquid substance was present on the floor creating a slippery surface. There were no warning signs or barriers in place.

Ice/Snow: Ice and/or snow created a hazardous condition at [location]. Your insured failed to exercise reasonable care to address this hazard.

Uneven Surface/Tripping Hazard: A [defect] created a tripping hazard.

C. The Incident

On [Date of Incident], at approximately [Time], our client was [describe activity] when [he/she] [describe the fall]:

[Detailed narrative]

IV. LIABILITY ANALYSIS

A. Duty of Care

Under Montana's unified duty of care established in Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985), your insured owed our client a duty of reasonable care to maintain the premises in a reasonably safe condition.

B. Breach of Duty

Your insured breached this duty by:

1. Failure to Maintain Safe Premises:
   [Describe specific failures]

2. Actual or Constructive Knowledge:
   Your insured [created the hazardous condition / had actual knowledge of the condition / had constructive knowledge because the condition existed for a sufficient period that it should have been discovered through reasonable care].

C. The Condition Was Not Open and Obvious

Under Montana law, the open and obvious nature of a condition is a factor in the comparative negligence analysis, not an absolute bar. Here:

• The hazard was not apparent to a reasonable person because [explain]
• Even if partially observable, our client exercised reasonable care

D. Causation

The dangerous condition was the direct and proximate cause of our client's fall and injuries.

E. Comparative Negligence Defense Rejected

Our client was free from fault:

• [Evidence of due care by client]
• Our client had no reason to anticipate the hazard

V. INJURIES AND MEDICAL TREATMENT

A. Immediate Injuries

Primary Diagnoses:

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

B. Medical Treatment

Emergency Treatment:
[Details]

Subsequent Treatment:
[Details]

C. Current Status and Prognosis

[Current condition and prognosis]

VI. DAMAGES

A. Past Medical Expenses

B. Future Medical Expenses

C. Lost Wages

D. Non-Economic Damages

Note: The medical-malpractice cap in § 25-9-411 does not govern an ordinary private premises claim. Analyze any defendant- or claim-specific limit separately.

Our client has experienced:

• Physical pain and suffering
• Emotional distress
• Loss of enjoyment of life
• [If applicable: Permanent physical impairment / Disfigurement]

E. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the liability of your insured, the severity of our client's injuries, and the damages incurred, we hereby demand:

$[DEMAND AMOUNT]

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

VIII. DOCUMENTATION ENCLOSED

• Complete medical records and bills
• Photographs of the incident location
• Photographs of injuries
• Incident report (if obtained)
• Employment records and wage verification
• Weather records (if applicable)

IX. CONCLUSION

The enclosed evidence supports the liability and damages positions stated in this demand. We urge prompt resolution.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
State Bar of Montana No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

MONTANA-SPECIFIC PRACTICE NOTES

• Unified Duty of Care: Montana abolished the invitee/licensee/trespasser distinctions in Limberhand v. Big Ditch Co. (1985).

• Modified Comparative Negligence: Recovery is allowed at equal fault and barred only when claimant fault is greater than the comparison group; damages are reduced proportionally.

• Compensatory Damages: Section 25-9-411 is medical-malpractice-specific; do not import that cap into an ordinary private premises claim.

• Multiple Defendants: Under the currently operative § 27-1-703, a party found 50% or less negligent is generally severally liable for its share, while remaining parties may be jointly and severally liable; concert and agency rules also apply.

• Punitive Damages: Sections 27-1-220 and -221 require actual fraud or actual malice proved by clear and convincing evidence, prohibit punitive allegations in the initial pleading, require a separate amount phase, cap awards at the lesser of $10 million or 3% of net worth, and impose additional allocation rules for awards above $200,000.

• Snow/Ice: Reasonable care standard applies; no blanket natural accumulation immunity.

• Venue: For an ordinary tort claim, § 25-2-122 generally uses a defendant's county of residence or the county where the tort was committed, with separate rules for out-of-state defendants and corporations. Section 25-2-126 governs actions against the State and political subdivisions.

SOURCES AND REFERENCES

• Mont. Code Ann. § 27-2-204
• Mont. Code Ann. §§ 27-1-702 and 27-1-703
• Mont. Code Ann. §§ 27-1-220 and 27-1-221
• Mont. Code Ann. §§ 2-9-105, 2-9-108, and 2-9-301
• Mont. Code Ann. §§ 25-2-122 and 25-2-126
• Mont. Code Ann. § 25-9-411
• Limberhand v. Big Ditch Co.
• Richardson v. Corvallis Public School District No. 1
• Benson v. Heritage Inn, Inc.
• Steichen v. Talcott Properties, LLC
• Fahrnow v. E-5 Oil Services