Slip and Fall / Premises Liability Demand Letter - Nebraska

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF NEBRASKA

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

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, Nebraska. This letter constitutes our formal demand for settlement.

I. NEBRASKA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Nebraska Revised Statutes Section 25-207(3) generally provides a four-year period for an injury to the plaintiff's rights not arising on contract. Nebraska decisions analyze when the cause accrued, and government or claim-specific statutes may impose shorter periods. Counsel should calculate and calendar the claim-specific deadline rather than assume an expiration date from this template.

B. Nebraska Comparative Negligence

Nebraska follows modified comparative negligence under Neb. Rev. Stat. Section 25-21,185.09. A claimant's damages are reduced proportionately by contributory negligence. Recovery is barred when the claimant's negligence is equal to or greater than the total negligence of all persons against whom recovery is sought.

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

C. Nebraska Premises Liability Standards

Nebraska abolished the common-law distinction between invitees and licensees and requires reasonable care for all lawful entrants; it retained a separate trespasser classification. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

For injury caused by a condition on land, Sundermann v. Hy-Vee, Inc., 306 Neb. 749, 766, 947 N.W.2d 492 (2020), states that the plaintiff must establish:

1. The defendant knew or in the exercise of reasonable care should have known of the dangerous condition
2. The defendant should have realized that the condition involved an unreasonable risk of harm
3. The defendant should have expected a lawful entrant would not discover or realize the danger or would fail to protect against it
4. The defendant failed to use reasonable care to protect the lawful entrant
5. The condition proximately caused the plaintiff's damage

Our client was lawfully on the premises and was owed reasonable care under the circumstances.

D. Nebraska "Open and Obvious" Doctrine

Under Sundermann, 306 Neb. at 750, a danger is open and obvious when it is apparent to and would be recognized by a reasonable person in the entrant's position exercising ordinary perception, intelligence, and judgment. A finding that a risk is open and obvious does not end the analysis; the court must also consider whether the possessor should have anticipated that lawful entrants would fail to protect themselves despite the risk.

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

E. Nebraska Snow and Ice Liability

Nebraska's current premises framework does not create the blanket natural-accumulation immunity stated in the prior draft. In Ermel v. SMA Enterprises, Inc., 30 Neb. App. 754, 763-66, 969 N.W.2d 881 (2022), the court applied the ordinary condition-on-land elements to a specific ice accumulation beneath downspouts and held that factual disputes existed over whether the condition presented a risk different from winter ice generally, whether it was open and obvious, and whether the possessor should have anticipated customers would encounter it.

[If snow/ice case:] Describe the specific accumulation, lighting, drainage, traffic path, inspection or removal evidence, defendant's knowledge, and why the possessor should have anticipated that lawful entrants would not discover or protect themselves against the condition.

F. Notice Requirements for Government Claims

Nebraska Political Subdivisions Tort Claims Act: Sections 13-905 and 13-919 generally require a written claim to be filed with an authorized records official or designated law department within one year after accrual, and suit within two years after accrual, subject to the Act's disposition, withdrawal, and extension provisions.

Nebraska State Tort Claims Act: Sections 81-8,212 and 81-8,227 generally require a written claim to be filed with the Risk Manager within two years after accrual. Section 81-8,213 ordinarily requires final disposition or a permitted written withdrawal after six months before suit, and Section 81-8,227 contains the suit-extension rules.

[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

Neb. Rev. Stat. Section 25-21,207 concerns counterclaims against the State, not spoliation. Under McNeel v. Union Pacific Railroad Co., 276 Neb. 143, 156, 753 N.W.2d 321 (2008), intentional destruction of relevant evidence may support an adverse inference; routine destruction without fraudulent intent does not.

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type] in [City], [County] County, Nebraska. 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: A specific accumulation of ice and/or snow created a hazardous condition at [location]. [Describe drainage, downspouts, lighting, traffic path, inspection/removal history, warnings, and other evidence bearing on knowledge and foreseeability.]

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

As a lawful entrant, our client was owed reasonable care under the circumstances. Your insured was required to exercise reasonable care to maintain the premises for the protection of lawful visitors. Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

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].

[If snow/ice case:]

3. Specific Ice/Snow Condition:
   [Describe why the particular condition presented an unreasonable risk, the evidence of defendant's knowledge or opportunity to discover it, and why lawful entrants would not discover or protect themselves against it].

C. The Condition Was Not Open and Obvious

The hazardous condition was not open and obvious because:

• [Explain why the hazard was not apparent]
• [Describe factors that concealed the danger]

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

No general noneconomic-damages cap is stated for an ordinary private premises claim under the authorities cited here, although government and claim-specific limits may apply. Our client has experienced:

• Physical pain and suffering
• Emotional distress
• Loss of enjoyment of life
• [Other non-economic damages]

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 evidence described above supports liability under Nebraska law. Your insured failed to use reasonable care under the circumstances, and the condition caused our client's injuries. We urge prompt resolution.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

NEBRASKA-SPECIFIC PRACTICE NOTES

• Four-Year Statute of Limitations: Section 25-207(3) generally provides four years; accrual and government rules require claim-specific review.

• Modified Comparative Negligence: Plaintiff must be less than 50% at fault to recover (equal fault bars recovery).

• Snow/Ice: Apply the ordinary condition-on-land and open-and-obvious analysis to the specific accumulation. Ermel v. SMA Enterprises, Inc., 30 Neb. App. 754 (2022).

• Damages: No general compensatory cap is stated for an ordinary private premises claim under the cited authorities; government and claim-specific limits may apply.

• Multi-Defendant Liability: Section 25-21,185.10 makes economic damages joint and several; noneconomic damages are generally several by percentage. Defendants acting in concert are jointly and severally liable for both.

• Punitive Damages: Nebraska law does not permit punitive damages over and above full compensation. Golnick v. Callender, 290 Neb. 395, 404, 860 N.W.2d 180 (2015).

• Venue: Section 25-403.01 permits venue, subject to specified-action exceptions, where a defendant resides, where the cause arose, or where the underlying transaction or part occurred; if all defendants are nonresidents, any county.

SOURCES AND REFERENCES

• Neb. Rev. Stat. § 25-207
• Neb. Rev. Stat. § 25-21,185.09
• Neb. Rev. Stat. § 25-21,185.10
• Neb. Rev. Stat. §§ 13-905 and 13-919
• Neb. Rev. Stat. § 13-919
• Neb. Rev. Stat. §§ 81-8,212 and 81-8,227
• Neb. Rev. Stat. § 81-8,227
• Neb. Rev. Stat. § 25-403.01
• Sundermann v. Hy-Vee, Inc., 306 Neb. 749 (2020)
• Ermel v. SMA Enterprises, Inc., 30 Neb. App. 754 (2022)
• McNeel v. Union Pacific Railroad Co., 276 Neb. 143 (2008)
• Golnick v. Callender, 290 Neb. 395 (2015)