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®)