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


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:


  • Non-Economic Damages:


  • 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.