During the course of the birthday party, members of the party decided to play laser tag, including Plaintiff. Plaintiff proceeded up a significant set of stairs to enter the arena. Plaintiff was told by the “Game Master” that there was one door in the center of the arena that was marked with the words “Emergency Exit” in neon letters, and told not to go out the emergency exit door unless there was an actual emergency. The instruction did not include specific guidance that the other side of the door led to a landing and a set of 20 concrete stairs; Plaintiff contended that she should have been explicitly warned about the stairs even though she had obviously walked up a significant flight of stairs. While Plaintiff initially denied being told about the presence of the emergency exit and the directive not to use it, she later admitted that some instruction was given before the game began but said she had not really heard it because the children in the group were “too loud.” She did not ask for the instructions to be repeated or clarified.
The emergency exit stairwell was not an enclosed space. The walls on either side did not go all the way to the ceiling of the building. The overhead lights, which, during game play were black lights, cast light into the stairwell as it effectively had no immediate ceiling. At the bottom of the stairwell, there was a common fluorescent light that Blazer’s indicated was always on when the business was open to the public. Further, on both of the walls that ran parallel to the landing, there were windows that allowed light into the stairwell. In fact, Plaintiff spoke with her son through those windows just before she fell. Specifically, she had told him that the children were “up there” and that she was “going to go up there and get them.” However, she admitted that even though she intended to go “up,” she was not really looking for a set of stairs or a ramp that would take her up to where the children were.
Instead, she indicated that she went through a door that had no signs on it – it was totally black. While no mention of this claim was noted in her written discovery, she testified in her discovery deposition that the stairwell was “pitch black.” When she opened the door, she admitted that she could tell that the stairwell was totally black, and she chose to enter it anyway as she believed the area to be “part of the game” based on the fact that the door was decorated to match the general theme of the arena. Notably though, she allegedly did not see the “Emergency Exit” sign and explicitly testified that it was just a black door. Photos from before the fall show it was not. It is unclear how the decoration on the door which reportedly made her think the door was part of the game could have lured her into the stairwell when she claims the door she saw was just a plain black door. Further, it was argued that the door needed more signage, but, as she allegedly did not see the sign on the door or the lit exit sign above it, it is unclear how additional signage would have made a difference.
Upon entering the allegedly pitch-black stairwell, Plaintiff indicated that she immediately fell down the stairs. Among other claims, she contended that the light at the bottom of the stairwell was off. However, her code expert claimed that even if the light at the bottom was on, the area did not meet the illumination requirements of the Kentucky Building Code (KBC). This was based on the recollection of the witnesses who were there with Plaintiff and one photograph taken by a party attendee at the request of Plaintiff’s daughter-in-law that showed the light was out. With the light at the bottom of the stairs out, Plaintiff’s code expert indicated that the illumination level was a 0.0 foot-candle. She contended it was required to be 1.0 foot-candle.
Blazer’s contended the light at the bottom of the stairs was on as the owner saw it on during the time the EMS crew were examining Plaintiff, and that, even if it was not on, the area where Plaintiff was when she fell was certainly within the illumination levels required by the KBC. Plaintiff’s expert and Defense expert both measured illumination levels of more than 0.02 foot-candle at the landing and the first stair. Defense expert argued that this was the proper level of illumination that applied to this business when the laser tag game was being played. Notably, Blazer’s expert had also measured the light in the arena, which was the same level of light that existed at the top of the stairwell to show that Plaintiff could see as she had admitted that she could see to move around the arena. Moreover, Blazer’s relied on the fact that the stairwell had been approved by the City of Radcliff and had been inspected numerous times by the Fire Marshall without issue.
As a result of the fall, Plaintiff suffered four fractured ribs and a concussion, along with extensive bruising. Her main complaints currently are continuing issues with dizziness that prevented her from participating in many activities that she enjoyed, and, in particular, that made it impossible for her to drive. She claims to have only driven once in the years since the fall. Two years after the fall, Dr. David Changaris, a neurosurgeon, opined Plaintiff sustained a traumatic brain injury as a result of the fall. Plaintiff’s treating neurologist had not made such a diagnosis. When questioned about this, Dr. Changaris indicated that a neurologist would not be capable of making such a diagnosis. Dr. Changaris also indicated that because of her injury she would develop Alzheimer’s disease 10 years earlier than she otherwise would have. Blazer’s expert, Dr. Richard Edelson, a neuropsychologist, testified that Plaintiff did not have a brain injury and based on his neuro-cognitive testing, she did not have a profile that was consistent with someone who had a pre-Alzheimer’s profile. He also indicated he believed she had a pain disorder that was exacerbated by the fall and PTSD that was caused by this fall. While he also testified that her complaints were likely real, they were also treatable; however, she had not sought any meaningful treatment options to address her ongoing symptoms. Further, Plaintiff had a host of long-term health issues that were playing a role in her ongoing complaints, most notably an extensive history of anxiety, depression, and panic attacks that, per her medical provider 10 months before the fall, impacted her life in a significant way on a daily basis. Additionally, other medical records called into question Plaintiff’s mobility before this as she had significant complaints of pain documented one month before this fall in her back (she had surgery about 10 months before but did not get it checked by her surgeon after this fall), both hips, and her ankles/feet.
At the conclusion of the trial, eleven of the twelve jurors found for Blazer’s on liability.
Meagher + Geer attorneys Tracy Kolb and Timothy Schupp obtain defense verdict in medical malpractice case - Bismarck, North Dakota
Meagher + Geer attorneys Tracy Kolb and Timothy Schupp obtained a defense verdict in a medical negligence case that arose out of a surgery performed by a general surgeon, in which an unexpected complication arose. There are risks and possible undesirable consequences associated with any surgery. The surgeon handled the complication skillfully and with the utmost due care. Further complications arose post-operatively, but were appropriately managed. The patient’s surgical and post-operative course were not as a result of any failure to meet the standard of care by the surgeon during the surgery.
The jury agreed, after deliberating less than three hours.
(Pictured, L to R: Kolb, Schupp)
Hand Arendall Harrison Sale employment lawyers continued to see success in 2021. In the last few months of 2021, courts in all three of Alabama’s federal districts awarded summary judgment in favor of firm clients in employment discrimination cases. DRI member Mark Waggoner and Firm employment lawyers Christine Harding Hart and Emily Van Haneghan teamed up to successfully defend the cases for Postsecondary Public Education Institutions in the Southern District of Alabama and the Middle District of Alabama, and for a private business in the Northern District of Alabama.
DRI member Stephen Wood of Chuhak & Tecson, P.C. obtained a defense verdict on behalf of Sun Chemical Corporation in the case of Martin G. Ford v. Acuity, et al., No. 2015 L 7584 pending in the Circuit Court Cook County, Illinois on March 21, 2022 after a 4-week jury trial. The Plaintiff, a pressman with a 28-year work history, contracted acute myelogenous leukemia that he alleged was caused by exposure to benzene in Sun Chemical’s products. In the original complaint, plaintiff named 22 defendants in addition to Sun Chemical. By the time of trial, all other defendants had been dismissed, several pursuant to settlement with the plaintiff. In closing argument, the plaintiff’s counsel asked the jury for a total of $16.3 million in compensatory damages. The jury took approximately 2 hours to return a unanimous verdict in Sun Chemical’s favor indicating that the liability determination was not a close call. In discussions after the verdict, several jurors indicated that Sun Chemical’s exposing the flaws in plaintiff’s experts’ exposure and causation opinions on cross-examination was central to their decision.
Bauer v. HYUNDAI
Hyundai Motor America and Hyundai Motor Company, Ltd. obtained a unanimous jury verdict in their favor on March 24, 2022, after a nine-day product liability trial in state court in Prestonsburg, Kentucky. It took the jury only 75 minutes of deliberations to reject Plaintiffs’ claimed damages of $17,882,484.
The case, styled Daniel Bauer, et al v Hyundai, involved a tragic set of facts. Five members of the Bauer family were traveling to grandmother’s house for Christmas on December 24, 2015. Their vehicle, a 2013 Hyundai Tucson, was struck by an oncoming Chevrolet Cruze that crossed over into the Tucson’s lane of travel on KY 114 in Floyd County, Kentucky. The vehicles collided head-on, right front to right-front, at combined closing speeds of nearly 120 mph. Three occupants of the Tucson were killed, and one occupant sustained serious injuries. A post-collision fire developed in the engine compartment, which ultimately spread to the passenger compartment and engulfed the entire vehicle. The bodies of two of the vehicle occupants, including a four year-old girl, were recovered after the fire was extinguished. The lead plaintiff lost his wife, a daughter, and a grand-daughter.
Plaintiffs claimed that the injuries sustained by the occupants of the Tucson were caused or enhanced by manufacturing defects in the Tucson’s driver side front bumper welds. Plaintiffs’ defect expert noted that the crash forces to the right front of the vehicle caused the front bumper welds to separate from the frame rail connector on the driver side. The expert opined that the separation of the welds caused excessive deformation to the passenger side of the Tucson, compromised the vehicle’s structural integrity, and increased the severity of the crash as experienced by the occupants. The expert claimed that the welds were shorter than permitted by Hyundai specifications and were of poor quality.
Hyundai defended the case by demonstrating that the welds were fully compliant with design requirements and separated only because they experienced massive crash forces. Even if the welds were “too short” by fractions of an inch, as claimed by the expert, the welds still would have separated, and the crash forces experienced by the occupants would have been unchanged. This was an exceptionally severe crash, with a delta V (change in velocity) calculated by defense experts to be in the mid-50s. Hyundai’s experts conducted a vehicle-to-vehicle crash test to demonstrate the massive forces in this crash. The injuries and fatalities in the Tucson were caused solely by the actions of the other driver, who had elevated levels of drugs, including opioids, in his bloodstream. Hyundai’s experts also demonstrated that an adult female and the four-year-old female in the rear seat were unrestrained. The unrestrained adult in the left rear seat loaded the back of the driver’s seat and contributed to the driver’s fatal injuries. The only rear seat occupant who was properly restrained, a six year-old boy restrained in a booster seat, sustained virtually no injuries.
Representing Hyundai at trial were Robert Maxwell of Bernard, Cassisa, Elliot & Davis of Covington, Louisiana, David Schaefer of Dinsmore & Shohl in Louisville, Kentucky, and Thomas Vanderford, Associate General Counsel and Executive Director of Litigation at Hyundai Motor America.
(Pictured, L to R: Maxwell, Vanderford, Schaefer)
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