$46.4 Million Verdict February 7, 2011 Seattle, Washington

Transcription

1 Tolenoa, Beltran-Walker & Walker v. Denny s, Inc. & Hoffert King County Cause No SEA $46.4 Million Verdict February 7, 2011 Seattle, Washington Ron Perey & Doug Weinmaster Perey Law Group, PLLC, Seattle, WA Facts of Case: Commercial premises liability/ failure to provide adequate security to keep restaurant customers safe. The plaintiffs were customers and Denny s was the restaurant. On January 21, 2007, Steven Tolenoa, a 27 year-old man, and his brother Wilven went to the Kent Denny s in Kent, WA at about 2:00 a.m. on a Saturday night/ Sunday morning to have a Grand Slam breakfast after working a half-day and playing softball and drinking some beer at a local pub. The bar rush at the Kent Denny s started at 2:00 a.m. Denny s, Inc. has 1,600 restaurants nationwide, with 50 restaurants in the state of Washington, and all are open 24/7. The bar rush is when a predictable large group of rowdy and drunk people rush to Denny s after the bars & lounges close at about 2:00 a.m. to keep the night going. Frank Evans (the shooter) had been at HD Hotspurs, a hip hop club in Kent, WA, drinking with friends. At about 1:45 a.m., he got into a verbal altercation with two men in the parking lot of HD Hotspurs which was defused by a security guard and two off-duty Kent Police officers, before it escalated into physical violence. Evans left and went to Denny's, about 2 miles away, which is open 24/7. He entered the restaurant and threatened to smoke everyone at Denny s, picked two fights, got pummeled, left Denny s with a bloody lip and hurt ego, got a gun from his car and returned and shot off eleven rounds, injuring 5 customers. Tolenoa was hit by two bullets and rendered a quadriplegic due to a severed spinal cord at C6, plus other injuries. Lisa Beltran-Walker was hit by a bullet in the back of her leg which hit only soft tissue. Carl Walker was traumatized by having a gun in his face and concern for his wife s life, but was not shot. Lisa Beltran-Walker is now okay physically but has some residual numbness in her leg and emotional stress; the same is true for Carl Walker. Steven Tolenoa will never walk or work again, his life will be spent in a bed or a wheelchair. His life expectancy is another 45 years. In January and February, 2011, this case was tried on the legal duty of an owner of commercial premises (in this case, a 24/7restaurant) to protect its customers from reasonably foreseeable harm and criminal violence. See Nivens v Hoagy s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997). See also Hutchins v Fourth Avenue Associates, 116 Wn.2d 217, 220, 802 P.2d 1360 (1991); Kim v. Budget Rent A Car Systems, Inc., 143 Wn.2d 190, 15 P.3d 1283 (2001); Parrilla v. King County, 138 Wn. App. 427, , 157 P.3d 879 (2007); Elsa Robb v. City of Seattle, 2011 Wash. App. LEXIS 353 (Wash. Ct. App., Division One, Jan. 14, 2011). The Kent Denny s restaurant had a history of violent acts during the late night shift, particularly on Friday and Saturday nights during the bar rush. There were 1,136 calls made to 911 from the Kent Denny s and police responses in the two years prior to the shooting. There were no security guards or off-duty Kent Police Officers, and the Denny s manager was in the back of the restaurant at the closed bar playing video games when the bar rush commenced at 2:00 a.m. after the local bars closed. Denny s corporate management in Spartanburg, South Carolina was wellaware of recurring violence at its 1,600 restaurants during the bar rush, but chose to do nothing Page 1 of 5

2 regarding security because the late night produced 25% of Denny s profits. Denny s chose profits over people. Denny s should have hired security guards, off-duty police or closed the restaurant during the two hours of the bar rush (2:00 4:00 a.m.). Denny s is the only nationwide family-style sit-down restaurant open 24/7. The court ordered the Denny s Chair of the Board of Directors/CEO and its Chief Financial Officer to appear and testify at trial in King County, WA. They testified that they did not know about any violence, and the issue of violence never came before the Board of Directors a boldface lie. They testified that they had no corporate plan to remedy the problem because there was no problem. The employees of the Kent Denny s were scared to go to work during the bar rush. The manager of the late night shift said it was scary to work at the Kent Denny s during the bar rush and they were always on the verge of calling 911. He was deeply concerned for the safety of his employees and his customers. He even got price quotes from the Kent Police Department for two off-duty officers and a patrol car, and advised the general manager. The managers and employees asked for security and got a deaf ear from the General Manager and the Area Manager. Corporate management in Spartanburg, South Carolina would not acknowledge a problem or risk. The trial lasted 3½ weeks, and for jury deliberated for 6 days, including a 2 day weekend. The plaintiffs called 26 witnesses to the stand. The defendants called seven witnesses, none of which were employed by Denny s. They did not call the manager-on-duty who was in the restaurant, but missing in action, at the time of the shooting. See attached Special Verdict Form awarding $46,417,739, dated 2/7/11, and Judgment filed on 2/9/11. King County Superior Court Judge Middaugh ruled that the Tegman case decided in 2003 was not applicable and gave a Rollins-type instruction on the allocation of damages between Denny s and the non-party shooter/frank Evans who is in the Washington State Penitentiary in Walla Walla, serving a 63 year sentence. See Tegman v. Accident & Med Investigations, Inc., 150 Wn.2d 102 (2003), and Rollins v. King County Metro Transit, 148 Wn. App. 370, ,199 P.3d 499 (2009). Judge Middaugh denied defendants request to segregate damages on the verdict form between the intentional actor (shooter) and negligent actor (Denny s, Inc.). Interestingly the jury said they had no difficulty whatsoever with this Rollins instruction. It is believed that this is the first case involving both negligent and intentional conduct to go to the jury with a non-party intentional tortfeasor and a Rollins instruction, since Rollins was decided in Date of Injury: January 21, 2007 Shooting at Kent Denny s Date Filed: May 14, 2009 Date of Trial: January 10, 2011 February 7, 2011 (14 days) Date of Verdict: $46.4 million February 7, 2011 Page 2 of 5

3 Plaintiffs: Steven Tolenoa, Lisa Beltran-Walker, Carl Walker Defendants: Denny s, Inc., Linda Hoffert Trial Judge: Laura Gene Middaugh, who struck all 33 of defendant Denny s absurd affirmative defenses on multiple motions of plaintiffs counsel. She also dismissed on Summary Judgment, plaintiffs claim for application of the punitive damages law of South Carolina where Denny s, Inc. has its corporate headquarters under a conflict of law analysis. The State of Washington has not permitted common law punitive damages since 1891when punitive damages were declared unconstitutional and against public policy in Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 P (1891). The only case in Washington history that has ever gone to trial seeking punitive damages under the law of a foreign state occurred in Snohomish County in Singh v. Edwards Lifesciences Corp, 151 Wn. App. 137, 210 P.3d 337 (2009). The jury awarded $31,750,000, including $8,350,000 in punitive damages under California law. This was affirmed by Division One of the Washington Court of Appeals on July 6, See also Johnson v. Spider Staging Corp., 87 Wn.2d 577, 582 (1976), Kammerer v. Western Gear Corp., 96 Wash.2d 416, 635 P.2d 708 (1981), and Barr v. Interbay 96 Wash.2d 692, 635 P.2d 441 (1981), which authorize the courts of Washington to apply the law of a foreign state under a conflict of law analysis. Plaintiffs Attorneys: Ron Perey and Doug Weinmaster, Perey Law Group, PLLC, Seattle, WA Defendants Attorneys: Thomas Merrick, Merrick Hofstedt & Lindsey, Seattle, WA Insurance Company: Scottsdale Insurance Company (primary insurance of $21,000,000) Plaintiffs Treating Doctors: Steven Rudnick, M.D. Primary Care Physician (Steven Tolenoa); Lawrence Snow, M.D., Sports Medicine, Seattle, WA (Lisa Beltran-Walker) Plaintiffs Expert Witnesses: Robert Moss Economist, Seattle, WA; Theodore Becker, Ph.D. Physical Capacities Expert Everett, WA; Gary Yarkony, M.D. Physical Rehabilitation and Life Care Planner, Chicago, IL; Cloie Johnson Life Care Planner and Vocational Rehabilitation Woodinville, WA; Chris McGoey Security Expert Los Angeles, CA Defendants Expert Witnesses: Peter Nickerson, Ph.D. Economist Seattle, WA; Daniel Kennedy, Ph.D. Security Expert Troy, Michigan; Rebecca Bellerive, RN Life Care Planner Gig Harbor, WA; Cynthia Campbell, M.D. Defense Physiatrist Plaintiff Steven Tolenoa: A 31 year-old mail sorter for Pitney Bowes (was 27 at the time of the shooting). Past Medical Expenses: $635,811 Past Lost Wages: $54,451 Days Work Lost: Rest of life Days in Hospital: 90 days; plus three years and nine months in a nursing home where the average age is 68. Page 3 of 5

4 Plaintiff Lisa Beltran-Walker: A 47 year-old housewife/mother. Past Medical Expenses: $4,477 Plaintiff Carl Walker: A 42 year-old truck driver. Settlement Negotiations: None. Plaintiffs demanded $21,000,000 in settlement, the Scottsdale Insurance Co. primary policy limit. Denny s had about $200,000,000 in liability insurance with a $500,000 SIR. No offer of settlement at Mediation with Gary Bloom of Spokane, WA. Defense lawyer Tom Merrick said quadriplegia cases are settled all the time for $4-5 million. In fact, the Scottsdale Insurance Co. representative refused to meet or talk with plaintiffs or their lawyers. No offers of settlement by Denny s or Scottsdale Insurance Co. prior to commencement of trial. Plaintiffs demanded $7,500,000 halfway through trial. Scottsdale Insurance Co. responded with an offer of $7,000,000 and would not budge. Plaintiffs declined offer. Plaintiff Asked Jury for: $20 million+ in economic (special) damages and left non-economic (general pain and suffering) damages up to the jury s direction closing argument Defendant Asked Jury for: A defense verdict, or a verdict of $3-5,000,000 to purchase an annuity for Steven Tolenoa. Gross Verdict: $46,417,739 in compensatory damages; Washington prohibits the award of punitive damages. $46,348,262 Steven Tolenoa; $54,477 Lisa Beltran-Walker; $15,000 Carl Walker. Jury found Hoffert negligent, but no proximate cause. Jury found Denny's negligent and 100% liable. There were 2 empty chair defendants the shooter and his friend. The jury did not find them at fault. The verdict was allocated among the plaintiffs as follows: Steven Tolenoa Past Economic Damages: $690,262 Future Economic Damages: $16,658,000 Past Non-Economic Damages: $5,000,000 Future Non-Economic Damages: $24,000,000 Total: $43,348,262 Lisa Beltran Walker Past Economic Damages: $4,477 Past Non-Economic Damages: $35,000 Future Non-Economic Damages: $15,000 Total: $54,477 Carl Walker Non-Economic Damages $15,000 Page 4 of 5

5 Contributory Negligence: This affirmative defense of contributory fault, plus 32 other affirmative defenses, were dismissed by the Court after multiple motions. The ridiculous affirmative defenses included: lack of privity of contract, no express or implied warranty, no oral warranty, no notice of breach of warranties, laches/statute of limitations, improper venue, lack of jurisdiction, insufficient service of process, assumption of risk, failure to state a claim, waiver/estoppel, failure to join an indispensable party, forum non conveniens, accord and satisfaction, preexisting medical condition, conduct consultant with state of knowledge, no successor liability, frivolous and bad faith lawsuit and others. Net Monetary Recovery: Judgment of $13,000,000 was entered against defendant Denny s, Inc. based upon a high-low agreement reached just prior to plaintiffs closing argument. The judgment of $13,000,000 was paid in full 8 days after the verdict. Post-Trial Motion to Compel Return of Denny s Documents: After trial, Denny s moved to compel return of documents it claimed were confidential. On April 27, 2011, the Court entered an order declaring that virtually all the secret internal documents Denny s had produced during discovery and stamped confidential were public documents and not confidential. The Court concluded the Agreed Protective Order did not require return of confidential documents, though it could have. The Order provided adequate protection for any documents not declared public. Denny s public, non-confidential documents are available from Ron Perey or Doug Weinmaster, dweinmaster@pereylaw.com. Report Submitted by: Ron Perey, Seattle, WA Telephone: ronperey@pereylaw.com Page 5 of 5