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
Under West Virginia Code Section 55-2-12, the statute of limitations for personal injury claims arising from premises liability is two (2) years from the date of injury. This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
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:
- Maintain the premises in a reasonably safe condition
- Warn of dangerous conditions that are known or should be known to the owner
- Conduct reasonable inspections to discover dangerous conditions
- Exercise reasonable care to protect entrants from foreseeable harm
See also Hersh v. E-T Enters., Ltd. P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013).
C. Modified Comparative Negligence - 50% Bar
West Virginia follows modified comparative fault under W. Va. Code Section 55-7-13a:
- A plaintiff's recovery is reduced by their percentage of fault
- A plaintiff is barred from recovery if found to be 50% or more at fault
Our client exercised reasonable care at all times and bears no responsibility for this incident.
D. Constructive Notice Standard
Under West Virginia law, constructive knowledge of a dangerous condition exists when the condition has been present for a sufficient length of time that the owner, in the exercise of reasonable care, should have discovered and corrected it. See Hersh v. E-T Enters., Ltd. P'ship, 232 W. Va. 305, 752 S.E.2d 336 (2013).
E. Snow and Ice Liability
West Virginia follows the natural accumulation rule for snow and ice. Property owners generally have no duty to remove naturally accumulating snow and ice. See Higginbotham v. City of Charleston, 204 W. Va. 711, 516 S.E.2d 747 (1999).
However, property owners may be liable when:
- The accumulation is unnatural (caused by defective drainage, downspouts, or artificial conditions)
- The owner has aggravated the natural condition
- The owner has undertaken to remove snow/ice and done so negligently
- The condition is hidden or concealed from entrants
- The property owner has created an artificial condition that causes unnatural ice formation
F. Notice Requirements for Government Claims
For claims against West Virginia governmental entities, W. Va. Code Section 29-12A-6 requires that claims be presented to the Attorney General within two (2) years of the incident. Claims against political subdivisions must follow the requirements of the Governmental Tort Claims and Insurance Reform Act.
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
West Virginia courts recognize spoliation of evidence and may impose sanctions including adverse inference instructions. See Tracy v. Cottrell, 206 W. Va. 363, 524 S.E.2d 879 (1999). FAILURE TO PRESERVE THIS EVIDENCE MAY RESULT IN SEVERE SANCTIONS.
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 unnatural accumulation or artificial condition created by owner's actions or property defects]
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:
- Failing to maintain the premises in a reasonably safe condition
- Failing to conduct reasonable inspections to discover the dangerous condition
- Failing to correct or warn of the dangerous condition
- [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
| Provider | Service Dates | Amount Billed |
|---|---|---|
| [Provider] | [Date] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
B. Lost Wages
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL LOST WAGES | $[Total] |
C. Pain and Suffering
[Detailed description of physical pain, emotional distress, and loss of enjoyment of life]
D. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| TOTAL NON-ECONOMIC DAMAGES | $[Subtotal] |
| TOTAL DAMAGES | $[Grand Total] |
VII. SETTLEMENT DEMAND
Based upon the clear liability of your insured under West Virginia premises liability law, the severity of our client's injuries, and the substantial 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 evidence establishes clear liability on the part of your insured under West Virginia premises liability 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 (50%): Plaintiff barred if 50% or more at fault. W. Va. Code Section 55-7-13a.
- Joint and Several Liability: West Virginia has abolished joint and several liability in most cases. W. Va. Code Section 55-7-13c.
- Government Claims: Claims against State must be filed with Attorney General within 2 years. W. Va. Code Section 29-12A-6.
- Punitive Damages: Available for gross negligence, malice, or willful and wanton conduct. Must be proven by clear and convincing evidence. W. Va. Code Section 55-7-29.
- Natural Accumulation Rule: No duty to remove natural snow/ice, but liability for unnatural accumulations. Higginbotham v. City of Charleston, 204 W. Va. 711 (1999).
- Venue: County where cause of action arose or defendant resides. W. Va. Code Section 56-1-1.