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A Quiet Night Out…

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Publication Date: September 2005
Volume: 41-1
Author: Lee Tucker
Categories: Premises Liability, Soft Tissue Injuries, Verdicts & Settlements

Mary Short was sitting at a table watching her fiancé, Chadd Alston, play pool on the night of September 19, 2003, when a fight broke out in The Ballard Grill and Ale House (BGAH) located on Leary Avenue in Seattle. Alex Britton, the bouncer of the BGAH, was ejecting another patron at the other end of the bar from the premises at the time. Mr. Britton and the other patron began to fight, and as the bouncer was attempting to eject the patron, the two crashed into Mary. Mary’s head slammed into the table next to her and she was forced to the ground with the weight of both men on top of her head and neck. Mary sustained a severe injury to her neck, at C5-6. As a result, she was forced to undergo a cervical fusion surgery in April of 2004. Plaintiff attempted to resolve her claim with the bar’s insurance company prior to filing; however, the bar employees and the bar owner adamantly denied that the incident even occurred. Plaintiff’s investigator, Pam Barnard of Allied Investigations, was able to interview many of the bar employees, including the bar owner, before suit was filed. Ms. Barnard did an exceptional job of investigating this case, and was able to lay the framework for plaintiff’s future discovery efforts. The evidence unearthed by Ms. Barnard ultimately forced the bar to admit to liability just 30 days before trial. The bouncer involved in Mary’s injury, Alex Britton, left the State of Washington soon after the incident and plaintiff was never able to successfully locate him. However, plaintiff discovered a former roommate of Mr. Britton who would later testify at her deposition that Britton admitted to her that he had ejected someone at the BGAH and that both of them landed on top of Mary.

Mary Short

An energetic and vivacious woman, Mary was well-rounded and energetic. Prior to her injury, she engaged in a number of hobbies and interests, including water skiing, tennis, golf, hiking, walking her dogs and working out with friends. Mary had traveled, lived and worked in many different parts of the world, venturing as far as Moscow, Russia. A former New York City acting student and singer in a band, Mary was 35 spirited years old at the time of the incident. Working as a Southwest Airline attendant at the time, Mary was also engaged to be married. Though Mary was prevented from returning to work for the entire year following her injuries, she nevertheless attempted with assiduous perseverance to go back to work part-time. Mary also studied to earn her real estate license and made plans for an alternative career. With a strong network of many supportive friends and family members, Mary was overwhelmed with offers to testify on her behalf at trial regarding her life of energy and activity prior to her debilitating injuries. Procedural History When pre-filing negotiations went nowhere, the plaintiff filed suit against the restaurant and bar, the owners and the bouncer, Mr. Britton, in early 2004. Levi Bendele of Reed McClure appeared for all defendants. A case that seemed to start out amicably between the parties ended up becoming one of the most adversarial cases I have ever worked on. Plaintiff served defendants with three sets of interrogatories and requests for production focused on the bar’s policies for serving alcohol. Plaintiff completed the depositions of bartender Charles King, who served Mary the night of the incident, waitress Krista Marple, who served Mary on the night of the incident, day manager Jessie Petlig, who hired bouncer Alex Britton, the bar owners, Lisa and Terry Suzuki, and the former roommate of the bouncer, whose name I have been asked to keep confidential. Interestingly, defendants never filed witness disclosures until three months after the deadline designated on the civil case schedule. Defendants also failed to timely file a jury demand. Defendants did not keep their discovery lapses a secret and in return made multiple promises to plaintiff that they would in good faith attempt to settle the case in a timely fashion. A settlement demand was made to defendants in January 2005. However, no offer was made and defendants’ broke their promises and never entered into settlement negotiations until the June 2, 2005 mediation. Despite their failure to comply with the deadline for demanding a jury trial, defendants also filed a motion for a jury trial, which was denied. The case would thus be heard before a King County Superior Court judge. Defendants also failed to timely disclose their CR 35 examiner. Plaintiff was able to enlist the support of Hal Rappaport, M.D., who related Mary’s cervical injury to the September 19, 2003 incident at the BGAH. Defendants also took the depositions of Mary’s treating doctors, Stan Schiff, M.D., Ph.D. and Steven Klein, M.D. Defendants knew that they had failed to timely file primary witness disclosure lists, yet still filed a motion to exclude plaintiff’s trial witnesses and exhibits under KCLR 16. Defendants strategically served plaintiff with their KCLR 16 witness and exhibit list early, hoping that the old case schedule was still in force. Defendants filed their motion just days before the June 2, 2005 mediation, knowing that I was going into a two-week Federal trial, as I had disclosed my unavailability previously to defense counsel. Defendants had been confused for much of the case regarding due dates for motions and other due dates on the case schedule. There had been a prior stipulation and order to continue the case to July 18, 2005; however, neither side had requested the issuance of a new case schedule. Defendants thus believed that since the judge ruled against them in their motion for a jury trial, the old case schedule was enforceable under KCLR 4. Thus, defendants believed they were entitled to strike plaintiff’s witnesses and exhibits at trial because plaintiff chose to follow KCLR 16, which states witness and exhibit lists shall be served 21 days before trial. Defendants ignored KCLR 16 and persisted with filing their motion to strike. Plaintiff’s counsel not only opposed the motion, but also asked for sanctions due to the frivolous nature of defendant’s motion. Mediation was not successful. Defendants offered a maximum of $150,000 via a structured settlement. The court had not yet ruled on the motion to strike and plaintiff believed much of the defendants’ actions at mediation were based on their pending motion. Defendants shot their arrow in the dark and missed by a wide margin when the court again denied their motion to strike plaintiff’s witnesses and trial exhibits and ordered defendants to pay terms to the plaintiff for what the court found to be a frivolous motion. Once the mediation had failed, defendants scrambled to note the depositions of at least 18 witnesses with less than 30 days left before trial. Plaintiff filed a motion to quash the depositions primarily on the basis that defendants failed to timely file their witness disclosure lists, and also because defendants waited too long to conduct discovery in the case. In addition, the discovery cut-off passed and defendants’ requests created unnecessary burdens on both parties. With just under 30 days left before trial, defendants filed their own motions to quash the deposition of one of plaintiff’s treating doctors and to dismiss some of plaintiff’s damages claims. Defendants had earlier filed a motion to dismiss Terry and Lisa Suzuki, the bar owners. Plaintiff agreed to dismiss the owners after the mediation. Defendants also unilaterally filed a motion to admit liability.

Liability

Plaintiff retained Denny Rutherford, Ph.D., who did outstanding work in laying out the proper standard of care that a bar owes to its patrons. Dr. Rutherford assisted in crafting plaintiff’s interrogatories and requests for production and also helped prepare plaintiff’s counsel for the depositions of the bar employees. He also suggested that plaintiff’s counsel obtain 911 call records, police records and fire department records associated with calls to the BGAH. Plaintiff discovered that the BGAH had long history of instances where defendants engaged in the over- service of alcohol. The evidence also revealed that fights, assaults and police activity occurred over several years at the BGAH. Despite this evidence, defendants attempted to describe themselves as a family establishment – but that was a far cry from the truth. Prior to the plaintiff’s injury, defendants failed to adequately track incidents of over-service and unruly behavior at the bar, as required by Washington State Liquor Control Board (WSLCB) policies and procedures, which the WSLCB provided to defendants. Defendants’ own bartender was also not properly licensed. Only after plaintiff’s injuries did the defendants finally attempt to comply with WSLCB guidelines and track instances of the over-serving of alcohol and unruly behavior at their bar. Defendants tracked such occurrences in a spiral notebook in back of the bar. Even after plaintiff’s injuries, there were a number of incidents where patrons were over-served, fights broke out and unruly behavior occurred at the bar that was inconsistent with the “family” image defendants claimed to have had. There were also written complaints made to the WSLCB about underage drinking and drug activity occurring at the BGAH. Defendants’ own day manager testified that the bouncer responsible for plaintiff’s injuries was a “loose cannon.” Defendants never conducted any background check on the bouncer prior to hiring him, even though he was responsible for the security of the bar. The former roommate of the bouncer testified that he had previously hurt people at a bar he worked at in California, and that she had also, contrary to state liquor law, witnessed the bouncer drinking on the job on multiple occasions at the BGAH. Had this case gone to trial plaintiff would have been able to introduce this evidence against the bouncer and the bar. Defendants also installed video observation cameras around the time of Mary’s injuries; however, they denied having any videotape of the night in question. The bar owner had a monitor at his own home so he could observe the bar. Plaintiff requested an inspection of the video equipment, monitor, and cameras multiple times; however, by the time the inspection was going to occur, defendants stipulated to liability and the case had settled.

Medical Causation

Defendants essentially conceded causation relevant to Mary’s cervical fusion surgery when their own CR 35 examiner, Hal Rappaport, M.D., concluded on a more probable than not basis that Mary’s cervical injury and fusion surgery was proximately caused by the September 19, 2003 incident at the BGAH. Dr. Rappaport could not relate the plaintiff’s low back injury to the incident at the bar, however. Both of the plaintiff’s treating physicians, Stan Schiff, M.D., and Steven Klein, M.D., agreed that Mary’s cervical injuries were also caused by the incident at BGAH. Mary also suffered a rotator cuff tear and sprained her lower back at L5- S1. Defendants retained James Russo, M.D., to conduct a CR 35 examination of Mary’s shoulder; however, the case settled before the results were completed. All of Mary’s treating doctors, including orthopedic surgeon Herbert Clark, M.D. and family practitioner James Bowers, M.D., were expected to testify at trial that both Mary’s shoulder and low back injuries were proximately caused by the September 19, 2003 incident at BGAH. Mary incurred $55,000 in medical expenses as a result of the incident at defendants’ bar.

Wage Loss

Plaintiff retained Kent Shafer of OSC Vocational Systems as her vocational expert. Mr. Shafer did a thorough job evaluating the full affect of Mary’s inability to work in the airline industry, and was expected to testify that Mary needed certain accommodations at work in order to continue working successfully as an airline attendant. Plaintiff also retained Robert Moss as her economic loss expert. Mary’s past economic loss was estimated to be between $20,000 to $30,000, and her future loss of earnings was projected at $90,000 had she been unable to return to Southwest Airlines on a full-time basis. Defendants retained William Skilling and David Knowles, respectively, as their vocational and economic experts, who were expected to testify that Mary’s past economic loss was much less and that she had no future loss of earning capacity. Plaintiff filed a motion to quash Mr. Skilling’s deposition. Mr. Skilling may not have been able to testify because defendants waited too long to properly note his perpetuation deposition and he was unavailable for trial. The court never ruled on the motion because of settlement.

Conclusion

The case eventually settled on June 23, 2005, after several weeks of post- mediation adversarial posturing by the defense.

Lee Tucker is a WSTLA EAGLE member, who practices with Scott Blair at The Blair Firm in Seattle, Washington. Their practice focuses on catastrophic injuries, work related injuries, automobile negligence, bicycle accidents, premises liability, and insurance issues.