Slip and Fall / Premises Liability Demand Letter - West Virginia

DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF WEST VIRGINIA

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

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], West Virginia. This letter constitutes our formal demand for settlement and provides a comprehensive analysis of liability under West Virginia law, our client's injuries, and damages.

I. WEST VIRGINIA-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

West Virginia Code § 55-2-12(b) generally requires a personal-injury action to be filed within two (2) years after the right to sue accrues. Accrual, tolling, defendant identity, and any special public-entity rule must be analyzed before inserting a deadline. For this matter, counsel has calculated the filing deadline as [Expiration Date] based on [state the accrual and tolling analysis]. This demand does not extend that deadline.

B. Premises Liability Duty Standards Under West Virginia Law

West Virginia has abolished the common law distinction between invitees and licensees. Under Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999), West Virginia applies a single standard of reasonable care:

"A landowner owes any non-trespassing entrant a duty of reasonable care under the circumstances."

This unified standard requires property owners to:

1. Maintain the premises in a reasonably safe condition
2. Warn of dangerous conditions that are known or should be known to the owner
3. Conduct reasonable inspections to discover dangerous conditions
4. Exercise reasonable care to protect entrants from foreseeable harm

In deciding whether reasonable care was exercised, Mallet directs the factfinder to consider foreseeability, likely injury severity, the entrant's circumstances, expected use of the premises, and the burden of guarding against injury.

C. Modified Comparative Negligence - 50% Bar

West Virginia follows modified comparative fault under W. Va. Code § 55-7-13c:

• A plaintiff's recovery is reduced by their percentage of fault
• A plaintiff is barred from recovery only when plaintiff fault is greater than the combined fault of all other responsible persons; equality does not bar recovery
• Compensatory liability is generally several, subject to the statute's concerted-action rule, specified joint-liability exceptions, and limited reallocation procedure

Our client exercised reasonable care at all times and bears no responsibility for this incident.

D. Constructive Notice Standard

The claimant ordinarily must prove that the possessor had actual or constructive knowledge of the condition. Hawkins v. U.S. Sports Ass'n, Inc., 219 W. Va. 275, 633 S.E.2d 31 (2006). Evidence relevant to constructive knowledge may include how long the condition existed, recurring-condition evidence, inspection practices, employee observations, and whether the defendant created the condition.

E. Open-and-Obvious Hazards

W. Va. Code § 55-7-28 reinstated the pre-Hersh open-and-obvious doctrine. A possessor owes no duty to protect against a danger that was open, obvious, reasonably apparent, or as well known to the injured person as to the possessor. Whether this defense applies must be evaluated against the evidence and any relevant statutory violation; it should not be assumed merely because the condition was theoretically visible.

F. Snow and Ice Liability

For a private possessor, analyze snow or ice under the reasonable-care, notice, causation, comparative-fault, and open-and-obvious rules above. West Virginia authority reviewed for this template does not support a categorical private-landowner “natural accumulation” rule.

If the defendant is a political subdivision, a separate statute controls: W. Va. Code § 29-12A-5(a)(6) provides immunity for weather-caused snow or ice on a public way or other public place unless the condition was affirmatively caused by the subdivision's negligent act. Porter v. Grant County Board of Education, 219 W. Va. 282, 633 S.E.2d 38 (2006).

Develop evidence concerning weather timing, drainage or refreezing, snow-removal work, inspections, warnings, lighting, visibility, and who created or controlled the condition.

G. Government Defendants

Do not use one procedure for every West Virginia public defendant:

• Political subdivisions: W. Va. Code § 29-12A-6 is an action-limitation statute, not an Attorney General presentment requirement. It generally requires suit within two years after accrual or discovery, whichever last occurs, subject to its shorter-period language, minor provision, and concealment tolling. Section 29-12A-7 bars punitive damages and limits noneconomic loss to $500,000 per person while leaving economic loss uncapped.
• The State or a state agency: Article VI, § 35 of the West Virginia Constitution, W. Va. Code § 29-12-5, the applicable insurance policy, and immunity doctrine require separate analysis. A circuit-court claim seeking recovery from a state entity must be framed and limited consistently with available insurance coverage. Parkulo v. West Virginia Board of Probation & Parole, 199 W. Va. 161, 483 S.E.2d 507 (1996).

Identify the exact entity, insurance arrangement, immunities, forum, and deadline before sending a demand or filing suit.

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
• Insurance policies applicable to this claim

A party that reasonably anticipates litigation has a duty to preserve relevant evidence. Before imposing an adverse inference or another spoliation sanction, however, the court applies the four-factor test in Tracy v. Cottrell, 206 W. Va. 363, 524 S.E.2d 879 (1999), including control, substantial prejudice, reasonable anticipation of litigation, and fault; the requesting party bears the burden. Please suspend routine destruction and preserve the listed material in its native form.

III. STATEMENT OF FACTS

A. The Premises

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

[CUSTOMIZE BASED ON TYPE OF HAZARD - Select applicable option:]

Wet/Slippery Floor: A liquid substance was present on the floor in the [specific location], creating an extremely slippery and dangerous walking surface. There were no warning signs, cones, or barriers in place to alert visitors to this hazard.

Uneven Walking Surface: A raised or uneven section of [flooring / sidewalk / parking lot] created a tripping hazard that was not marked, repaired, or remediated.

Defective Stairs/Steps: The stairway at [location] was defective and dangerous due to [describe defect].

Foreign Object/Debris: [Describe object] was present on the floor, creating a tripping hazard.

Ice/Snow Accumulation: [Describe the condition, weather timing, drainage/refreezing, removal efforts, warnings, visibility, and how the owner or occupier knew or should have known of it]

C. The Incident

On [Date of Incident], at approximately [Time], our client was [describe activity - e.g., "shopping at the premises," "visiting as a patron"] when [describe the fall in detail].

D. Notice and Knowledge

Your insured had actual and/or constructive knowledge of this hazardous condition:

Actual Knowledge:

• [Prior complaints about the same condition]
• [Condition was created by defendant's employees]
• [Employee acknowledgment of awareness]

Constructive Knowledge:

• The hazardous condition existed for a sufficient length of time that it should have been discovered through reasonable inspection
• [Evidence of duration - footprints, dirty appearance, accumulation size]
• [Inadequate inspection procedures]

IV. LIABILITY ANALYSIS UNDER WEST VIRGINIA LAW

A. Elements of Premises Liability

Under West Virginia law, our client must establish: (1) defendant owed a duty of reasonable care; (2) defendant breached that duty; (3) the breach was the proximate cause of injury; and (4) damages resulted. Mallet v. Pickens, 206 W. Va. 145, 522 S.E.2d 436 (1999).

B. Breach of Duty

Your insured breached the duty of reasonable care owed to our client by:

1. Failing to maintain the premises in a reasonably safe condition
2. Failing to conduct reasonable inspections to discover the dangerous condition
3. Failing to correct or warn of the dangerous condition
4. [Additional specific breaches]

C. Causation

The dangerous condition was the direct and proximate cause of our client's fall and resulting injuries. But for your insured's negligence, our client would not have been injured.

D. Comparative Fault Defense - Inapplicable

We reject any assertion that our client was comparatively at fault:

• Our client was exercising reasonable care for [his/her] own safety
• The hazard was not open and obvious
• Our client had no reason to anticipate the dangerous condition
• [Additional factors]

V. INJURIES AND MEDICAL TREATMENT

A. Injuries Sustained

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

[List specific injuries with diagnoses]

B. Medical Treatment

Emergency Treatment: [Date, Provider, Treatment]

Surgical Intervention (if applicable): [Date, Procedure, Provider]

Ongoing Treatment: [Physical therapy, specialist care, etc.]

C. Current Status and Prognosis

[Describe current condition and prognosis from treating physicians]

VI. DAMAGES

A. Medical Expenses

Future Medical Expenses: $[Amount]

B. Lost Wages

C. Pain and Suffering

[Detailed description of physical pain, emotional distress, and loss of enjoyment of life]

D. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the evidence summarized above, the severity of our client's injuries, and the documented 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].

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, West Virginia.

VIII. DOCUMENTATION ENCLOSED

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

IX. CONCLUSION

The available evidence supports our client's liability and damages position under West Virginia law. We urge you to give this matter serious and prompt attention.

Respectfully submitted,

[FIRM NAME]

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

ENCLOSURES: As noted above

cc: [Client Name]
File

WEST VIRGINIA PRACTICE NOTES

• Unified Duty Standard: West Virginia abolished invitee/licensee distinction. All non-trespassing entrants owed reasonable care. Mallet v. Pickens, 206 W. Va. 145 (1999).
• Modified Comparative Fault: Recovery is allowed at exactly 50% and barred only when plaintiff fault exceeds all other responsible persons' combined fault. W. Va. Code Section 55-7-13c(c).
• Allocation: Compensatory liability is generally several, subject to conscious conspiracy, statutory joint-and-several exceptions, and limited reallocation. W. Va. Code Section 55-7-13c.
• Open and Obvious: W. Va. Code § 55-7-28 reinstated a no-duty rule for open, obvious, reasonably apparent, or equally known dangers and expressly displaced Hersh on that point.
• Government Claims: Sections 29-12A-5 to -7 govern political subdivisions. State-entity claims require separate sovereign-immunity and insurance analysis under W. Va. Code § 29-12-5 and the applicable policy.
• Punitive Damages: Clear and convincing evidence must show actual malice or conscious, reckless, and outrageous indifference; the award may not exceed the greater of four times compensatory damages or $500,000. W. Va. Code § 55-7-29. Political subdivisions are not subject to punitive damages under § 29-12A-7(a).
• Snow/Ice: The special weather immunity in § 29-12A-5(a)(6) is for political subdivisions; do not convert it into a categorical rule for private possessors.
• Venue: Venue may lie where a defendant resides or the cause arose, with additional entity, nonresident, joinder, and transfer provisions. W. Va. Code § 56-1-1.

SOURCES AND REFERENCES

• W. Va. Code § 55-2-12
• W. Va. Code § 55-7-13c
• W. Va. Code § 55-7-28
• W. Va. Code §§ 29-12A-5 to -7
• W. Va. Code § 55-7-29
• W. Va. Code § 56-1-1
• Mallet v. Pickens, No. 25807 (W. Va. 1999)
• Hawkins v. U.S. Sports Ass'n, Inc., No. 32869 (W. Va. 2006)
• Porter v. Grant County Board of Education, No. 32866 (W. Va. 2006)
• Tracy v. Cottrell, No. 25845 (W. Va. 1999)
• Parkulo v. West Virginia Board of Probation & Parole, No. 23366 (W. Va. 1996)