Hole in restaurant kitchen floor is left unguarded, vendor falls. $867K. San Joaquin County.

Summary

Bakery rep delivering bread falls into construction hole in restaurant's kitchen floor.

The Case

Case Name: Payton v. Installation Services Technologies, Inc.; Darlene Machado dba Hollywood Cafe
Court and Case Number: San Joaquin County Superior Court / STK-CV-UPI-2014-0002352
Date of Verdict or Judgment: Monday, September 26, 2016
Date Action was Filed: Tuesday, March 11, 2014
Type of Case: Failure to warn, Premises Liability
Judge or Arbitrator(s): Hon. Carter Holly
Plaintiffs:
Kelly Payton, 40, restaurant vendor.
Troy Payton, husband of Kelly Payton
Defendants:
Darlene Machado dba Hollywood Cafe
Installation Services Technologies, Inc
Type of Result: Jury Verdict

The Result

Gross Verdict or Award: $867,000
Award as to each Defendant:
IST: $606,900

Hollywood Cafe: $260,100
Contributory/Comparative Negligence: None.
Economic Damages:
$567,000
Non-Economic Damages:
$300,000
Trial or Arbitration Time: 10 days.
Jury Deliberation Time: 3 hours.
Post Trial Motions & Post-Verdict Settlements: Defendants - New trial and JNOV. Plaintiff's - Limited New Trial (Additur) and attorney fees for failure to admit Requests for Admission.

The Attorneys

Attorney for the Plaintiff:
Law Office of Lawrence M Knapp by Lawrence M. Knapp, Stockton.
Attorney for the Defendant:
Law Offices of John A. Hauser by Linda Sharpe, Brea.

Hollingshead & Associates by Deborah Correll, Sacramento.

The Experts

Plaintiff’s Medical Expert(s):
Ronald Dugger, M.D., neurology, Stockton.

Alex Phan, M.D., pain management, Stockton.

Thoha Pham, M.D., pain management, San Francisco.

DoraJane Apuna-Grummer, RN, life care planning, Sacramento.
Defendant's Medical Expert(s):
Paul Nottingham, M.D., orthopedic surgery, Walnut Creek.

Eldon Eichbaum, M.D., neurosurgery, Fremont.
Plaintiff's Technical Expert(s):
Phillip Allman, Ph.D., economics, Oakland.
Defendant's Technical Expert(s):
Brad Wong, P.E., forensic engineering, Pleasanton.

Facts and Background

Facts and Background:
Defendant Hollywood Cafe leased a Point of Sale system from Leapset, who hired IST to install it. The IST installer needed to access the subfloor crawl space in order to run wires. Hollywood directed the installer to a trapdoor located just inside the kitchen. The resulting opening in the floor was within the swing of a swinging aluminum kitchen door. The opening was left uncovered, unguarded and unattended and no attempt to warn was made.

Plaintiff, a 40-year-old vendor making her weekly bread delivery to the kitchen, fell in the hole.
Plaintiff's Contentions:
That plaintiff walked through the swinging aluminum kitchen door and fell into the hole, injuring her shin, thigh, low back and neck.

A diagnosis of low back sprain/strain was made the next day. The pain from the low back sprain/strain became chronic. The condition was treated with injections, including epidural steroid injections, facet joint injections and sacroiliac joint injections with minimal benefit.

That IST was negligent per se by violating Title 8 Code of California Regulations section 3212 (a)(1) for failure to guard, cover or attend an open hole in the floor.

That Hollywood Cafe had a nondelegable duty and was negligent per se by violating Title 8 Code of California Regulations section 3212 (a)(1) for failure to guard, cover or attend an open hole in the floor. In addition, Hollywood was negligent under premises liability because they knew or should have know of the opening in the floor and failed to remedy or warn of it.

Treating physicians testified that the plaintiff's condition would be indefinite. The life care plan included quarterly injections for 39 years.
Defendant's Contentions:
Defense disputed causation and extent of injury.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Shin abrasion, thigh contusion, low back sprain/strain, sacroiliac joint disfunction.
Loss of Consortium.

Special Damages

Special Damages Claimed - Past Medical: $16,000
Special Damages Claimed - Future Medical: $588,000
Special Damages Claimed - Past Lost Earnings: $60,000

Demands and Offers

Plaintiff §998 Demand: $1,000,000 to both defendants.
Defendant §998 Offer: IST: $165,000; Hollywood cafe: $75,000.
Defendant Offer during Trial: At trial before opening statements, IST increased their offer to $200,000.

Additional Notes

Per defense counsel:

Plaintiffs’ demand was $1,000,000 offer to compromise to each defendant; or $2,000,000 to both defendants. Plaintiffs never lowered their demand.

Kelli Payton claimed the following damages at trial:

$3,900,000 future non-economic

$300,000 past non-economic

$588,806 future medical

$16,170 past medical

$61,500 past lost income

Troy Payton claimed $30,000 for past loss of consortium and $390,000 for future loss of consortium.

The jury awarded Kelli Payton:

$60,000 past lost earnings

$7,000 past medical expenses

$50,000 past non-economic damages

$500,000 future medical expenses

$250,000 future non-economic damages

The jury awarded Troy Payton $0 for the loss of consortium.

The jury apportioned liability 70% to IST and 30% to Hollywood Café.

Defendants’ motion for JNOV is based on the lack of substantial evidence to support the award for future medical expenses and future non-economic loss. The jury awarded less than half of the past medical expenses claimed by plaintiff.

Plaintiffs’ motion for new trial or in the alternative for additur claims inadequate damages for loss of consortium.