Premises Liability

Case Study

James Wakefield and Charles Murawski of Cummins & White, LLP, successfully represented a high-end steak and seafood restaurant in a premises liability case. A guest of the steak house claimed she suffered herniated discs in the neck and lower back after she fell when a server pulled her chair out for her. She underwent extensive treatment, including a cervical fusion and demanded $1 million in damages.

At trial, Mr. Wakefield proved that the woman lied, that her injuries were a degenerative condition, and that the restaurant was not liable. The jury agreed and denied any liability on the part of the restaurant in a 12-0 defense verdict.

Background

A woman and her husband went to a high-end steak and seafood restaurant in Southern California to celebrate her birthday. After the woman returned from a restroom break, the waiter greeted her and pulled out the chair for her to be seated. The woman began to sit down but slipped off the edge of the chair and fell to the floor. After the fall, she and her husband remained at the restaurant and bar for an additional four hours.

One month later, the woman sought treatment from her primary care doctor, complaining of neck and lower back pains. She was referred to physical therapy but did not attend. Over the course of the next 18 months, she sought medical opinions from four additional doctors, including three neurosurgeons, seeking surgical treatment for herniated discs in the neck and lower back that she claimed occurred from the fall. All doctors recommended non-surgical treatment options.

During this period, the woman filed a complaint against the restaurant claiming general negligence and seeking $1 million in damages. After filing suit, she continued to seek surgical treatment, eventually finding a surgeon who performed a neck fusion.

Legal Strategy

Jim Wakefield and Charles Murawski of Cummins & White, LLP represented the restaurant and executed a litigation plan that established that:

• The restaurant was not liable for the woman’s alleged damage. They proved that the restaurant did everything possible to ensure that the woman had a safe and enjoyable evening. They also established that the woman should have executed reasonable care for her own safety.
• She lied about her medical history and other issues. They focused on her lack of credibility, showing that in her depositions she testified under penalty of perjury that she had never had any prior neck pain and had not been involved in any prior accidents in which her back or neck were injured, yet she had been involved in three previous car accidents.
• The neck fusion was unnecessary. They established that two years before the accident, the plaintiff was complaining of lower back pain and taking pain medication. The plaintiff’s treating and consulting doctors testified that her pain was a result of degenerative disc disease, which is typically treated satisfactorily by physical therapy and exercise, and that surgery was not an appropriate treatment.

Results/Implications

After a five-day trial, the jury deliberated only 30 minutes and delivered a 12-0 defense verdict, denying any liability of the restaurant. Furthermore, the plaintiff agreed not to appeal.

Although the defense was simple and straightforward, Mr. Wakefield said it required significant preparation to tell the story to the jury. “We did a great deal of research and work in order to understand her medical condition, combing through more than 10,000 pages of medical records, and Mr. Murawski carefully and effectively deposed the physicians and other witnesses,” he said. “The result was powerful evidence that won the trial for us. The jury clearly believed that the plaintiff was not injured by the fall, that she had ‘doctor shopped,’ and that she was not truthful.”

In addition, he said the case was a great endorsement for the restaurant’s commercial insurance carrier. “Despite suggestions that the case be settled, the insurance company followed our recommendations and allowed us to pursue this very strong case. It was great to work with an insurance company that is willing to say no. They trusted their instincts that we would prevail, and we did.”