Excerpt from Personal Injury Demand Letter
2219 words of 6569 word memo
Margaret Eve Miyasaki

Re: Jane Doe v. Lucky Tumble Restaurant San Francisco, San Francisco County Superior Court

My Client: Jane Doe
Date of Incident: xxxx, 2004
Insured's Claim No.:xxxx
Insured's Policy No.: xxxx
Insured's Insured(s): Lucky Tumble Restaurant.

Dear Sir/Ma'am:

As you know the office represents the above-referenced client in connection with the damages and injuries sustained in the above date of loss. Please accept this confidential and privileged demand letter as a good faith effort by Mrs. Doe to settle her claims against your insured's.

The representations in this demand letter are offered in the context of settlement discussions and no objection to their use or admissibility is waived. Please contact this office once you have reviewed letter to discuss settlement of this claim. Thank you for your anticipated cooperation.


The injuries that my client, Jane Doe, sustained were a direct and proximal result of the unsafe condition at your insured's premises (i.e., the staircase steps, handrails and uneven slate paving in the Lucky Tumble Garden banquet room).

The accident occurred on December 5, 2004 at approximately 1:30 PM, in Lucky Tumble Restaurant, San Francisco, Garden Room, at a Christmas luncheon for 50 guests. The lunch was organized, scheduled and coordinated by Mrs. Jane Doe, also a guest. Mrs. Doe, a vivacious energetic, then, seventy-five year old woman, was also the hostess and master of ceremony of the luncheon party. In this capacity, she delivered the Christmas speech from the podium that had been placed for her by Lucky Tumble's Garden Room staff on the upper level of the patio/banquet room. She was dressed in a manner befitting the formality of the occasion, wearing a dress suit and sensible shoes with 1-1/2 inch stacked heels.

Mrs. Doe had just finished giving the Christmas speech to the crowded room of guests. She thanked the audience and began her descent from the podium to greet well-wishers on the lower patio level. As Mrs. Doe walked onto the area of the upper level immediately adjacent to the stairs, one of her heels caught on the uneven slate pavers surface. Her legs went out from under her, one going one way and the other going in the opposite direction, and she tumbled down four steps. She crash-landed on both of her knees on the unforgiving slate rock at the bottom of the stairs. Garden Room staff was aware of this, and also knew that Mrs. Doe was a senior citizen, but no staffers were present to assist her.

Mrs. Doe had not drunk any alcoholic beverage throughout that day or during the previous night, nor was she taking any kind of medication that would affect her ability to walk or move about.

One of the shocked guests, who had watched Mrs. Doe's fall, immediately summoned the manager, who was on duty. Mrs. Doe made a complaint to the manager regarding the accident. The manager's report is based on Mrs. Doe's complaint.

In May 2007, Mrs. Doe returned to Lucky Tumble Restaurant and found that the conditions of the Garden Room floor and steps, which caused her fall, had not been corrected.


As evidenced in the medical records that XYZ Insurance obtained and shared with my office, Mrs. Doe sustained serious injuries from the accident, including but not limited to a nondisplaced avulsion fracture of the calcaneus of her left foot, torn ligaments of her right ankle, and bilateral bruising of her feet and legs, with chronic inflammation, pain and tenderness in her lower extremities. Moreover, as a result of the fall, she suffered deep intermittent pain due to left plantar fasciitis, phlebitis of her right saphenous vein and exacerbation of bilateral varicosing of veins in her legs.

Soon after Mrs. Doe fell on December 5, 2004, she experienced pain, swelling and bruising at the top lateral aspects of both feet, near her ankles. As the day progressed, the pain increased. At approximately 11:00 PM, the night of December 5th, Robert Smith, M.D., of the Emergency Department at Memorial Medical Center Emergency Department, treated Mrs. Doe. X-rays and physical examination revealed that Mrs. Doe had sustained a nondisplaced avulsion fracture of the calcaneus of her left foot, torn ligaments of her right ankle, and bilateral bruising of her feet and legs, as a result of falling down the stairs.

On December 10, 2004, Mrs. Doe did treatment follow-up with Joe Doakes M.D. For six weeks, she walked aided by crutches, limited her weight bearing, and wore a postoperative shoe on her left foot. She took Vicodin for pain. By January 4, 2005, she was seen because the bruising to her right leg had developed into a hard lump with swelling and redness that ran up her leg, which was treated using antibiotics. As a result of her injuries, Mrs. Doe had also developed phlebitis of the right saphenous vein. By February 15, 2005, Mrs. Doe's left calcaneus avulsion fracture had healed, however, she had begun having new left heel pain, which was worse in the morning. The area over her previous injury was nontender, while the area over the origin of plantar fascii was tender. Mrs. Doe had developed left plantar fasciitis as a result of the left calcaneus avulsion fracture.

Even though, Mrs. Doe has received proper medical treatment for her injuries, her pain from varicose veins and phlebitis, plantar fasciitis, with loss of balance and range of motion, all due to the fall, have persisted since the accident. Mrs. Doe's injuries caused her to have loss of balance, weakness and loss of range of motion in her lower extremities, resulting in dizziness, back pain, and instability in the right knee joint. More recently, she re-injured her right foot in a fall caused by her instability and loss of balance.

Medical treatment of Mrs. Doe's injuries arising from the accident is still ongoing. The accident exacerbated her varicose veins. By September 28, 2005, Mrs. Doe's varicose veins had rapidly become more prominent, painful and swollen, requiring treatment with antibiotics and surgery.


Robert Smith M.D., Memorial Med Center:

Soon after Mrs. Doe fell, she experienced pain, swelling and bruising at the top lateral aspects of both feet, near her ankles. As the day progressed, the pain increased. That night, December 5, 2004, Dr. Smith of XYZ Orthopaedic Specialists treated Mrs. Doe at Memorial Medical Center Emergency Department. X-rays and physical examination revealed that Mrs. Doe had sustained a nondisplaced avulsion fracture of the calcaneus of her left foot, tenderness at lateral margin of left foot, torn ligaments of her right ankle, abrasions lateral to right ankle, and bilateral swelling and bruising of her feet and legs, as a result of falling down the stairs. A Post-op shoe was placed on Mrs. Doe's foot, which she was instructed to wear while walking with crutches for 6 weeks to avoid bearing weight on her feet. She was given a take-home prescription for Vicodin for pain and told to follow-up with Dr. Doakes

X-Ray Medical Group:

The results of an X-ray exam by X-Ray Medical Group, taken on December 5, 2004, of the left and right foot showed that Mrs. Doe's left foot had a fracture arising from calcaneus at calcaneocuboid articulation. However, Mrs. Doe did not have a right ankle fracture. January 4, 2005, Venous Doppler examination of the left lower extremity showed no evidence of deep venous thrombosis to the left lower extremity, in spite of Mrs. Doe's history of chronic calf pain. May 2, 2005, a MN Bone Scan, Three Phase for right and left ankle pain, showed results compatible with Mrs. Doe's history of plantar fasciitis. On February 9, 2006, an X-ray exam of the right foot, done because of Mrs. Doe's post-fall status, showed an acute fracture of the base of Mrs. Doe's right fifth metatarsal bones, and her toes held in rigid dorso-flexion. On June 16, 2006 a medical imaging report, based on a bone survey done because of Mrs. Doe's history of monoclonal gammopathy, showed that her femur cortical margins were intact, and had no focal bone abnormalities.

John Jones, M.D., Dermatology:

Since January 4, 2005, Mrs. Doe had been diagnosed with phlebitis of the right saphenous vein, without evidence of deep venous thrombosis. Since her condition wasn't responding satisfactorily to treatment, she was referred to John Jones, M.D., for further evaluation. Dr. Jones treated her two times. On March 29, 2005, Dr. Jones examined Mrs. Doe and diagnosed her condition as actually being lipodermatosclerosis. He prescribed the use of triamcinolone ointment 0.1% as needed and recommended compression stockings. She was re-assessed at a follow-up appointment on April 19, 2005, in which she was diagnosed with possible sclerosing panniculitis. . . .



Your insured is responsible for the pain resulting from the injuries Mrs. Doe sustained in the accident, injuries arising from imbalance, and trauma-related plantar fasciitis, phlebitis, and vein breakage in her lower extremities. Your insured bears the liability for the medical treatment, and Mrs. Doe's loss of ability to do her chores, housework, shopping and regular activities. Your insured should have put safety first for the guests of Lucky Tumble Restaurant, but instead neglected an easily correctable defect in the stage and stairs. The injuries that my client, Jane Doe, sustained, were a direct and proximal result of the unsafe condition at your insured's premises (i.e., the staircase steps, handrails and uneven slate paving in the Lucky Tumble Garden banquet room).

The Lucky Tumble Restaurant Garden Room banquet room is an enclosed patio whose floor is composed of rough-hewn slate paving embedded in some sort of matrix, probably concrete. The paving is of irregular shapes of slate, whose surface is uneven and of varying heights. The banquet room has a lower level and an upper level. The upper level is accessed by a short stairway of four steps. Although the stairway has railings on both sides, the railings are curved and flared, so that, while the top of the stairway is approximately 4 feet wide, the bottom of the stairway appears to be at least 8 feet wide.

As such, the design of the stairway appears to violate 8 California Code of Regulations, Section 3214(a), which requires commercial stairways more than 88 inches wide to have a central railing as well as side railings. Even if the stair design were found not in violation of 8 CCR 3214(a), the flared design of the railings encourages patrons not to use them, since a person's natural tendency is to walk down the center of a stairway rather than along the edge. See enclosed picture. This suggests that the railing's design is intended more as decorative than functional.

The upper level of the patio/banquet room has tables during the summer months, but is not used for dining during the winter months. At the time Mrs. Doe was injured, December, there were no tables in the upper area. A podium, supplied by Lucky Tumble Garden, had been placed there for Mrs. Doe's Christmas speech. The podium is not normally part of the upper level's furnishings. The podium had a microphone and, presumably, a power cable to supply the podium with electricity. Where the power cable was placed is unclear.

The design of the patio/banquet room was unsafe. Lucky Tumble Garden apparently used the rough-hewn slate paving because it gave that portion of the restaurant a rustic appearance, rather than because of any functionality of rough-hewn slate. The indoor portion of Lucky Tumble Garden, in fact, has a different, more conventional type of surface. The roughness and irregularity of the surface naturally tends to cause people to trip and stumble over non-obvious bumps and ridges in the surface. Government agencies such as the National Park Service have noted this problem in buildings, which use the same type of slate paving for flooring. To make matters worse, the upper level of the patio had the same kind of paving extending to the top of the stairway. This kind of flooring made it reasonably foreseeable that a customer or other individual of any age could stumble on the uneven surface at the top of the stairs and fall down the stairs. And if a customer did so, it was reasonably foreseeable that she would be injured, for, after all, the flared, non-functional railings would be out of reach, and the hapless customer would land on an unpadded, rock hard slate surface at the bottom of the stairs.

Lucky Tumble Garden could have avoided the dangerous condition, of course, by constructing the flooring of the patio / banquet room of something other than rough-hewn slate paving, such as, whatever flooring that was used in the rest of the restaurant. Barring that, much of the problem could have been alleviated by grinding down the surface of the slate paving to an even height, especially on the upper level, and especially on the portion of the upper level adjacent to the stairs. This might make the patio/banquet room look somewhat less rustic, but, after all, safety is to be preferred over an injurious quaintness.

It was your insured's failure to properly maintain the steps in the banquet room that was directly the cause of the damages and injuries sustained by Mrs. Doe. Based upon the foregoing, Mrs. Doe respectfully demands to settle this case for $________.

Yours truly,