Employer said negligent after one employee attacks another. $1.9 million. Solano County.
Negligent retention claimed by employee who is attacked at work by a co-worker.
- Case Name: Gabriel Affonso v. Miguel Rocha d.b.a. M.R. Enterprise
- Court and Case Number: Solano County Superior Court / FCS040957
- Date of Verdict or Judgment: Monday, August 01, 2016
- Date Action was Filed: Tuesday, December 18, 2012
- Type of Case: Employment, Negligence
- Judge or Arbitrator(s): Hon. Scott L. Kays
Plaintiffs: Gabriel Affonso, 44, vacuum salesman.
Defendants: Miguel Rocha d.b.a. M.R. Enterprise
- Type of Result: Jury Verdict
- Gross Verdict or Award: $1,935,150.47
Award as to each Defendant:
After Prop 51 comparative fault reductions, defendant Rocha will be responsible for $1,248,123.38.
- Contributory/Comparative Negligence: 60% fault to Rocha, 20% fault to attacker Avent, 20% fault to plaintiff.
Past wage loss: $50,000
Future wage loss: $370,000
Past medical expenses: $15,150
Past non-economic damages: $750,000
Future non-economic damages: $750,000
- Trial or Arbitration Time: 3 weeks.
- Jury Deliberation Time: 5 hours.
- Jury Polls: 11 to 1
- Post Trial Motions & Post-Verdict Settlements: New trial motion has been filed.
Attorney for the Plaintiff:
Attorney for the Plaintiff:
Costin Law Inc. by Anne Costin, San Francisco.
Top DePaul LLP by Denise Top, Oakland.
Attorney for the Defendant:
McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP by Peter Hirsig and Adam Young, Fairfield.
Plaintiff’s Medical Expert(s):
Rebecca Thompson, M.D., neuropsychology, Napa.
Mark Strassberg, M.D., neurology, San Francisco.
Joanna Berg, M.D., neuropsychology, Oakland.
Terry Zimmerman, M.D., plastic surgery, Folsom.
Plaintiff's Technical Expert(s):
Phillip Allman, Ph.D., economics, Oakland.
Facts and Background
Facts and Background:
On September 11, 2012, plaintiff Affonso was attacked at work by a coworker named Thomas Avent. Both men worked for defendant Rocha (dba M.R. Enterprise) at the time.
Approximately nine days before the workplace attack, Avent was arrested on a business trip for allegedly threatening plaintiff Affonso and another employee. After Avent was released from jail, he admittedly wanted to “get back at” plaintiff for having him arrested. Plaintiff alleged that he reported his concerns about Avent to defendant Rocha, but defendant allowed Avent to return to work work after imposing a short ‘cooling off’ period. Avent attacked plaintiff at work the first time he saw him.
Plaintiff asserted at trial that defendant Rocha knew or should have known that Avent posed a threat of violence toward plaintiff in September of 2012; that defendant Rocha failed to take any steps to protect plaintiff from Avent, and that as a result defendant Rocha was liable for negligent supervision and retention of Avent as a result of his inaction.
Plaintiff also maintained a claim based on a premises liability theory of negligence – because defendant Rocha knew or should have known about Avent’s unfitness, plaintiff alleged that allowing Avent to enter the work premises constituted a negligent use of property that was a substantial factor in causing plaintiff’s harm.
Liability was contested throughout trial. Defendant argued that the workplace attack was not foreseeable, as plaintiff and Avent had previously known one another and worked together for nearly a decade without incident. Defendant contended that neither plaintiff nor Avent ever disclosed the complete facts which led to Avent’s arrest. He contended that plaintiff returned to work voluntarily without ever indicating that he feared for his safety, and that neither he, plaintiff, or anybody else at the business had advance warning that the attack would occur.
Defendant argued that the attacker (Avent) and plaintiff himself were either fully or partially responsible for any harm arising out of the incident at work.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff suffered physical injuries during the attack, including multiple fractures involving the right‐side facial bones and right orbital region.
Plaintiff was transported by ambulance to a Kaiser emergency room where he was diagnosed with a mild traumatic brain injury. Plaintiff underwent surgery in the ER to repair his facial and nasal fractures.
In 2013 and 2014, plaintiff’s medical care was sporadic due to his lack of insurance. In 2015 plaintiff began receiving consistent medical treatment through the VA: three of plaintiff’s VA treaters testified at trial via videotaped deposition.
In late 2015, plaintiff underwent a second surgery at the VA because of complications related to the injuries he sustained in the attack. In 2015 plaintiff was diagnosed with chronic facial nerve pain.
Plaintiff Affonso received consistent psychological treatment for his emotional injuries and was diagnosed with Post Traumatic Stress Disorder by a private and VA psychologist. Plaintiff and his family members testified that he suffered flashbacks and intense fear, anxiety and depression as a result of the attack.
- Special Damages Claimed - Past Medical: Asked jury for $15,150. (Awarded $15,150.)
- Special Damages Claimed - Future Medical: None.
- Special Damages Claimed - Past Lost Earnings: Asked jury for $245,551. (Awarded $50,000.)
- Special Damages Claimed - Future Lost Earnings: Asked jury for $722,871. (Defense counsel says asked for $1,139,201.) (Awarded $370,000.)
Per plaintiff's counsel:
Plaintiff served a policy limits demand for $1 million in July of 2015.
The parties completed a private mediation with Jack McGlynn in July of 2015.
Plaintiff's opening demand was $1 million.
Defendant's final offer was $25,000.
The parties completed a Mandatory Settlement Conference with Judge Kays in August of 2015.
Plaintiff’s opening demand was $1 million.
Defendant’s final offer was $25,000 with clear indication that defendant would never pay more than $50,000.
Plaintiff served a 998 for $135,000 in October of 2015.
Plaintiff served a renewed policy limits demand for $1 million in April of 2016.
Defendant served a 998 for $50,000 in May of 2016.
Highest offer by Defendant: $50,000.
Throughout litigation and trial defendant alleged that plaintiff was faking and exaggerating his injuries. Defense experts Dr. Mark Strassberg and Dr. Joanna Berg testified without hesitation that plaintiff was non-credible and a malingerer, in contrast to the opinions of all of plaintiff’s treating providers.
Per defense counsel:
Defendant presented sub rosa surveillance video in an effort to establish that plaintiff was faking and/or exaggerating his injuries. Defendant also presented evidence of several prior injuries, including head injuries, that plaintiff failed to disclose during written discovery.