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RESTAURANT FAILS TO ADDRESS HAZARDOUS FLOOR CONDITION (TRIAL MAGAZINE)

Mar 1, 2011

Trial Magazine
Volume 47, No. 3
Verdicts & Settlements: Premises Liability

Linda Davis, 59, was a patron at O’Charley’s Restaurant. As she was returning from the restroom, she slipped on ceramic tile flooring outside an open entrance to the kitchen area. She suffered a comminuted fracture of the left femoral neck—the area just below the thighbone head that forms the ball of the ball-and-socket hip joint.

Despite surgery to stabilize the fracture, Davis continues to suffer discomfort from the injury, which has significantly limited her mobility. She has been rated as having a 7 percent whole-body impairment. Her past medical expenses totaled more than $80,000. A claims adjuster, she missed about four weeks of work and incurred about $6,000 in lost income during that time.

Davis and her husband sued the restaurant, alleging that the tile flooring created a slipping hazard and that the defendant was aware of the dangerous condition but failed to correct it through design changes, slip-resistant treatments, or the placement of mats. The plaintiffs offered evidence that in the three years leading up to the incident, a number of customers and employees had fallen in the same area.

The plaintiffs also offered evidence that the kitchen floor collects grease, which employees can track into other parts of the restaurant; that grease-laden vapors generated during the cooking process can migrate beyond the kitchen; and that the restaurant used more than 17,500 pounds of vegetable shortening that year. Expert testing on exemplar tiles showed that with only a thin film of grease, the tiles had a slip index of less than half the industry standard.

The defendant’s corporate safety representative testified that the tiled area was safe and denied that it was prone to accumulating grease. In response, the plaintiffs introduced photographs showing that other O’Charley’s restaurants in the county used slip-resistant mats outside the open entrance to the kitchen area.

The plaintiffs did not claim future medical expenses or future lost earnings.
The jury awarded about $1.79 million, including $1.5 million in punitive damages and about $290,000 in compensatory damages. The medical insurer has asserted a $17,000 subrogation interest.

Citation: Davis v. O’Charley’s, Inc., No. 02-CV-2008-900315 (Ala., Mobile Co. Cir. Sept. 29, 2010).

Plaintiff counsel: AAJ members Robert L. Mitchell and J. Brian Duncan, both of Mobile, Alabama.

Plaintiff expert: James Dobbs, safety engineering, Tallahassee, Florida.

Defense expert: Daniel Sheehan, structural engineering, Atlanta.

Reprinted with permission of TRIAL (March 2011) Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®)

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