Maryland Injury Law Center

Jury Verdict Research looked at plaintiffs’ jury awards to get an idea of the value of different types of business negligence injury.

The most frequent injury claim involved disc injuries, which made up 12% of the total cases. Interestingly, emotional distress was the next most frequently reported injury at 10%. No, I don’t know exactly what this means, either, but let’s go with it. Back strains, I’m thinking mostly soft tissue injury, was 7 percent. Bad faith, death, and spinal nerve cases each comprised 6 percent of the total plaintiff awards. Brain injury cases accounted for 5 percent, while head injuries, knee injuries, leg injuries, and shoulder injuries each accounted for 4 percent of the cases. All other injuries each made up 3 percent or less of the total number of plaintiff awards.

(Again, probability range is the 25th to 75th percentile of verdicts.)

The average business liability claim is worth a lot more than the average personal injury claim. Why?

The first, and most obvious, businesses typically have deeper pockets because they have better insurance coverage and assets to stand behind verdicts than most car accident cases. We have handled many car accident wrongful death cases where the recovery is $100,000 or less because there is no coverage. Serious injury and death business liability cases are also getting higher value because these injuries do not discriminate as much based on age. Many malpractice cases involve older patients – they are getting more treatment than younger people – so they get less in terms of future economic damages and their life spans are just not as long.

The most stunning gap between the probability ranges is in brain injury cases.  According to this data, 25% of brain injury cases involve an award of less than $123,000.  Ask yourself how they defined brain injury for the study.   I can’t ever remember seeing a brain injury case come in for less than $123,000 but these statistics suggest that 1 in 4 cases comes in below that number.  I would assume they are using head and brain injury interchangeably, but they are not:  head injury is a separate category in the data.

Maryland Verdicts Are Not This High

You should not expect to see verdicts this high in Maryland business negligence injury cases.  The reason is contributory negligence.   Theoretically, if you are looking at jury verdicts as opposed to settlements, it should make no difference.  If there is a verdict, ostensibly the jury found the defendant 100% responsible.  But it really does not work that way.   If a jury is making a tough call on liability, they will often compromise the damage verdict accordingly.   Some of this is subconscious and some of it is actually the result of a compromise in the jury room.   But average verdicts in Maryland are not quite what these verdicts would suggest.

Key Elements of Business Negligence

To establish a claim of business negligence, several essential elements must be present:

1. Duty of Care: The plaintiff (the injured party) must demonstrate that the defendant (the business entity) owed them a duty of care. This duty of care arises from the special relationship between the parties or the nature of the business’s activities.  More than most negligence cases, duty is a real issue in business liability claims.
2. Breach of Duty: The plaintiff must establish that the defendant breached the duty of care owed to them. This breach typically involves demonstrating that the defendant’s actions or inactions fell below the standard of care expected in similar circumstances.
3. Causation: It must be proven that the defendant’s breach of duty was the direct cause of the plaintiff’s harm. This requires establishing a causal link between the defendant’s actions and the resulting injury or damage.
4. Damages: The plaintiff must show that they suffered actual damages or losses as a result of the defendant’s negligence. These damages can be economic, such as medical bills or lost income, or non-economic, such as pain and suffering.

Legal Standards in Business Negligence Cases

The legal standards for business negligence cases can vary depending on jurisdiction and the specific circumstances of the case. However, there are some common standards and principles that guide these cases:

1. Reasonable Person Standard: In many jurisdictions, the standard of care is measured by what a reasonable person or business entity would do in similar circumstances. Businesses are expected to act with the same level of care and diligence that a reasonable business in their industry would exercise. This is the gold standard for how to judge if the defendant is negligent.
2. Professional Standards: Certain businesses and professionals, such as doctors, lawyers, and accountants, are held to higher standards of care based on their specialized knowledge and expertise. They are expected to meet the professional standards of their industry.
3. Foreseeability: The concept of foreseeability is crucial in business negligence cases. It means that the harm suffered by the plaintiff must have been reasonably foreseeable as a consequence of the defendant’s actions or omissions.
4. Comparative or Contributory Negligence: Some jurisdictions apply the principle of comparative negligence, which allows for the allocation of fault between the plaintiff and the defendant. In such cases, the plaintiff’s recovery may be reduced based on their own level of negligence. With contributory negligence, the plaintiff own negligence – no matter how small – is an absolute bar to recovery.

Notable Business Negligence Cases

Several landmark cases have significantly influenced business negligence law and set important legal precedents. Here are a few notable examples:

• Palsgraf v. Long Island Railroad Co. (1928): This case established the concept of proximate cause in negligence law. It held that a defendant is only liable for harm that is reasonably foreseeable.
• Henningsen v. Bloomfield Motors, Inc. (1960): This case marked a significant development in product liability and consumer protection. It held that manufacturers could be held liable for injuries caused by defective products, even if the injured party did not have a contractual relationship with the manufacturer.
• Liebeck v. McDonald’s Restaurants (1994): Commonly referred to as the “McDonald’s hot coffee case,” this lawsuit brought attention to the concept of punitive damages in negligence cases. It involved a woman who suffered severe burns from hot coffee and resulted in a substantial punitive damages award against McDonald’s.  Perhaps the most misunderstood personal injury lawsuit in American history.
• Enron Scandal (2001): Although not a traditional negligence case, the Enron scandal highlighted corporate negligence in a broader sense. The collapse of Enron Corporation due to accounting fraud and corporate misconduct led to significant legal and regulatory reforms, emphasizing corporate responsibility and accountability.

The Contemporary Significance of Business Negligence Law

In today’s business landscape, business negligence law remains a critical legal framework that holds corporations and business entities accountable for their actions. Its significance can be observed in several key areas:

1. Consumer Protection: Business negligence law plays a crucial role in safeguarding consumer rights. It holds businesses accountable for producing safe products, providing accurate information, and ensuring customer safety.
2. Corporate Governance: In the wake of corporate scandals like Enron, business negligence law has prompted increased scrutiny of corporate governance practices. It encourages transparency, ethical conduct, and adherence to fiduciary duties by corporate leaders.
3. Environmental Responsibility: Businesses are increasingly held accountable for environmental negligence. Cases involving environmental damage, pollution, and resource depletion underscore the importance of responsible corporate behavior.
4. Workplace Safety: Occupational health and safety regulations are a subset of business negligence law. Employers are required to provide a safe working environment and can be held liable for workplace accidents and injuries resulting from negligence.
5. Product Liability: Manufacturers and distributors are held accountable for producing and selling safe products. When defects or hazards are identified in their products, they may face legal action under business negligence law.

Negligent Security

Negligent security is a specialized subset of business negligence law that pertains to the duty of businesses to provide adequate security measures to protect individuals on their premises. This aspect of the law recognizes that businesses have a responsibility to ensure the safety of their customers, employees, and visitors. Negligent security cases often arise in situations such as assaults, robberies, or other criminal activities that occur on business premises.  Our Maryland injury lawyers are very interested in these cases.

Businesses can be held liable for negligent security when they fail to take reasonable precautions to prevent foreseeable criminal acts. This may include inadequate lighting, lack of security personnel, malfunctioning security systems, or failure to conduct background checks on employees who have access to sensitive areas.

Negligent security cases are particularly relevant for various industries, including hotels, shopping malls, apartment complexes, and entertainment venues, where the safety of patrons and guests is a paramount concern. The outcome of these cases can result in substantial liability for businesses if it is determined that they did not meet their duty to provide adequate security measures.

In recent years, negligent security cases have gained prominence as society places an increasing emphasis on safety and security in public spaces. Big verdicts have also got a lot of attention. These cases remind businesses of the importance of not only providing a welcoming environment but also taking reasonable steps to protect those who enter their premises from foreseeable harm.

Business Negligence Verdicts and Settlements

• 2023, Florida: $202,871 Verdict. The plaintiff slipped and fell while walking across a slippery painted sidewalk in the parking lot of a Circle K store. The plaintiff asserted the defendant was negligent for failing to inspect the walkway, failing to maintain the walkway, failing to correct the slippery condition, and failing to warn of the dangerous condition of which it knew or should have known.
• 2023, New York: $350,000 Verdict. The plaintiff said she was at a Dunkin Donuts and sat down on an exterior bench at the store. The bench reportedly collapsed beneath her. The plaintiff said she fell and struck the concrete surface below. The plaintiff asserted the defendant was negligent in failing to maintain the bench, failing to repair the bench, failing to remove the bench from use, failing to warn, and failing to inspect. The plaintiff claimed the defendant had actual and constructive notice of the danger posed by the bench.
• 2020, California: $8,000,000 Verdict. A man suffered respiratory distress syndrome, permanent scarring of his mucous membranes, anosmia, and ageusia after he was exposed to pesticides. He was at his workplace when he saw what he thought was a cloud of smoke that was entering the bathroom. Instead of being a cloud of smoke, it was a cloud of pesticides that Terminex placed inside a common wall between the man’s workplace and a Starbucks. He alleged that Terminex negligently applied and sprayed toxic chemicals. The man claimed this created dangerous conditions in his workplace. He further claimed that Terminex failed to create safer conditions or warn individuals of a potential health hazard. Terminex denied negligence, claiming that the man was not exposed to their chemicals. They also disputed his injuries’ extent. The jury ruled in favor of the man, awarding him an $8,000,000 verdict.
• 2020, Florida: $266,100 Verdict. A woman suffered unspecified injuries after she slipped and fell at a local Walmart. She sued Walmart, alleging that they failed to maintain safe premises, failed to warn customers of unsafe conditions, and failed to properly inspect the premises. The jury found the woman 65 percent at fault and Walmart 35 percent at fault. They awarded $266,100 in damages.
• 2020, California: $893,096 Verdict. A woman suffered undisclosed injuries after slipping and falling on the wet floor of a Safeway grocery store. The woman claimed that a leak in the roof created these conditions. She alleged that the Safeway failed to properly maintain their property. The woman further alleged that the employees failed to put a cone or sign around the puddle to warn customers. The jury ruled in favor of the woman and awarded her an $893,096 verdict.
• 2020, New York: $725,000 Settlement. A 47-year-old woman suffered severe and permanent injuries after a retail employee twice punched her in the face following an altercation. She suffered a laceration to her mouth’s insides, which necessitated surgery. The woman also experienced the aggravation of a pre-existing lumbar injury, which she had undergone fusion surgery for about a decade earlier. As a result, she also underwent surgery that included the insertion of new hardware and allografts. The woman now needed a cane to help her walk on irregular surfaces. She claimed that the retail establishment was liable because the altercation concerned one of its products. The woman also noted that, despite the physical altercation, the establishment continued to retain this employee a year later. This case settled for $725,000.
• 2019, California: $400,000 Settlement. A hotel guest died after she drowned in the hotel’s pool. Her estate alleged that the hotel neglected to provide an on-duty lifeguard, neglected to light the pool, neglected to provide pool safety equipment, and failed to post signs that showed pool use hours. This case settled for $400,000.
• 2019, California: $335,255 Verdict. A woman suffered spinal injuries after slipping and falling on a grocery store’s wet floor. She alleged that the grocery store failed to properly maintain safe premises for its customers. She claimed that their negligence resulted in her injuries. The grocery store admitted that the woman slipped and fell at their store. However, they contended negligence, claiming that the woman was contributorily negligent. They also disputed her injuries’ extent and nature. Following a bench trial, the judge awarded a $335,255 verdict.
• 2019, Indiana: $300,000 Verdict. A woman injured her knee cartilage after she slipped and fell on the wet floor of a Speedway convenience store. She alleged that the surrounding floor became wet because of their employee’s mopping. The woman claimed that the Speedway was liable for creating a safety hazard around her. Speedway denied her allegations, claiming that its employee used a dry mop at the time. They also claimed that the snowy conditions outside caused the wet floor. The jury found that Speedway was 60 percent at fault, while the woman was 40 percent at fault. They awarded the woman a $300,000 verdict. However, her net award was $180,000.
• 2019, Georgia: $200,000 Verdict. A business invitee tripped and fell on an object as she walked toward the Big Lots store entrance. She suffered several injuries, including an elbow fracture. The woman sued Big Lots and one of their employees. She alleged that Big Lots failed to maintain safe premises, through their employee, who inappropriately placed an object near the store’s entrance, where it became a safety hazard. The jury assigned 90 percent of the fault to Big Lots and 10 percent of the fault to the woman. They awarded a $200,000 verdict. However, the woman’s net award was $180,000.

According to a recent Jury Verdict Research report, plaintiffs on motorcycles receive higher awards for collisions than bicycle plaintiffs. Makes sense. They are driving much faster and frequently roads where speed is more of an issue.

Their analysis, based on plaintiffs’ verdicts rendered from October 1999 to October 2006, examines motorcycle and bicycle categories involving collisions with other vehicles, objects, and pedestrians. The study found that the award median for motorcycle accidents was $73,700 compared to $40,912 for bicycle plaintiffs.

I assume they base the difference in the fact that motorcycles generate greater speeds that lead to more serious accidents. Interestingly, Jury Verdict Research provided average verdicts> with this data, which it rarely does. To underscore the difference between median and average, the average motorcycle accident case was $561,065 and the average bike accident case was $500,353.

I think I have a good handle on the settlement value of ankle fracture cases.  My law firm has handled many foot and ankle injury cases over the years.  My first foot and ankle case was 17 years ago when I sued the New England Patriots and their team doctors that ultimately settled. I probably met with a half dozen of the best foot and ankle surgeons in the country in connection with that case.

Since then, Miller & Zois has handled scores of foot and ankle injury cases and procured millions of dollars for our clients in these cases. My last ankle injury verdict was in Prince George’s County was the 6th biggest verdict that year, according to Washingtonian Magazine.  (Here is a video providing the story of that case.)

I’m not trying to brag. My point is we know the science of these cases. We know how to maximize the settlement and trial value of these claims.

It is amazing how low these are.  These are from a few years ago. But I think the number has not changed in 2021.  Sure, some ankle fractures can be treated with conservative care if the fracture displacement is two millimeters or fewer or if there is no talar shift.  But I can’t imagine getting less than six figures in the vast majority of these cases.  I don’t know how much insurance policy limits came into play in these cases.

Either way, these compensation payout numbers are just way too low. The loss of enjoyment of life and emotional distress from these injuries are often extreme even before we talk about how painful they are. One problem is not distinguishing between a good result and a good outcome for the patient.

A good result for an orthopedic surgeon is a good-looking x-ray.  The fracture is healed, mobility is good and the ankle joint is where it’s supposed to be. But you can have a good x-ray and still have a permanent injury, particularly when there is hardware is keeping the broken ankle together.

Two Take-Homes from These Ankle Settlement Statistics

Two more points of interest in this data. First, don’t get a broken ankle fracture in Virginia. It is amazing to me how low these Virginia verdicts are. I have to think this data is screwed up in some way.

Second, it is interesting that Maryland ankle fracture verdicts are 33% higher than Washington, D.C. verdicts, given that the Maryland median was much less than Washington, D.C. for both fractured shoulder and rotator cuff verdicts. The Federal Tort Claims Act News wrote an article about how Jury Verdict Research Case Evaluation Software was predicting the value of claims in a particular slip and fall case with an ankle fracture. In this case, the jury predicted a probable verdict of $117,600 with only a 33% chance of success on liability (maybe a tough slip and fall case on liability).

I just struggle to see how a case with a good fracture could be valued so low. As a point of comparison, it provided the following JVR nationwide analysis of ankle injuries:

One more point: median settlement values are the midpoint of the data, not the average. So included in the math are many awful cases that probably never should have been filed in the first place. So why not just quote the average? Well, the high range of these ankle verdicts is $5,250,804. That also distorts the statistics. The take-home message: settlement and verdict statistics are invariably misleading.

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