Denny's Lawsuit Award - $46.4M

[leadaddict]

http://www.seattlepi.com/sound/435052_sound115529629.html

Story summary: Guy gets thrown out of Denny's in the late night hours for fighting. Apparently fights aren't uncommon at this (or other) Denny's at this time of night. Guy goes to his car, grabs a gun, walks back in, and unloads. Denny's corporatation is sued. Patron rendered a quadriplegic is awarded most of 46 million.

More on the incident and background:
Plantiff's side:
http://www.pnwlocalnews.com/south_king/ken/news/112983894.html

Denny's side:
http://www.pnwlocalnews.com/south_king/ken/news/112983834.html

I'm guessing the line at which a company is held liable for this type of incident would vary greatly from jury to jury. They indicated in one of the above articles that if Denny's had hired security or even had a "strong, well-trained manager/authority figure manager was on duty" that this incident wouldn't have happened.

What precauctions is a business obligated to take? How many incidents constitute a pattern that requires you to hire security? I'm just curious what insights someone who has owned / managed a business might have, or what you have done for yours?

 

[Cosmoline]

There are no answers to those questions. The supposed duty to secure patrons against third party criminals is nothing more than a way to line the pockets of the plaintiffs' bar. It was cooked up by left wing jurists as a means of redistributing wealth--to lawyers. Even with airport-level security, there is no way to keep someone from coming in and shooting people. It is absolutely impossible. People need to take responsibility for their own protection. And if some criminal comes in and shoots you, that's the criminal's fault not the fault of the business that happens to own the building. The place that serves you dinner is responsible to keep the dinner from killing you. It does not control the actions of criminals, let alone murdering loons. It cannot control them.

The only real protection against this kind of nonsense is to not do business in the first place. Certainly not in places with jury pools as stupid as this.

 

[Owen Sparks]

I used to work the door at a bar and had to throw a drunk out for the same exact reason, trying to start a fight with one of regular customers who was minding his own business. As I escorted this "gentleman" out the door he said "I'll come back with a shotgun!" This left me with quite a quandary.

He just threatened me and everyone else with deadly force and was attempting to leave, possibly to retrieve a shotgun. Was he really going to come back with a shotgun? Probably not but then again he might. What should I do?

If this had been the old West I could have cut his throat then and there and put an end to it, but not now days. If went back in and call the police he would have plenty of time to get away and possibly come back later and make good on his threat. If I did a hospital job on the guy to disable him he would have sued me or at least have a real reason to come back and shoot me when he recovered and I did not want to spend the next six months looking over my shoulder. What to do?

I said “You just threatened me with deadly force in front of several witnesses, I am now going to get the .45 from behind the bar and if I see you come back in that door you are dead.” Then I punched him in the solar plexus hard enough to knock the wind out of him temporarily so that I could have enough time to fetch my pistol before he could make to his shotgun and come back. I never saw him.

 

[USAF_Vet]

Owen, I do believe you commited an assault on that individual. I believe that most people who threaten violence are all talk, but ever the boy scout, I'd still be prepared. The verbal exchange and retrieving the pistol would have probably been enough in your scenario. the punch to the solar plexus to someone who was no longer acting violent was probably more than was necessary to end the situation.

Honestly, to the OP, Denny's should not have been held liable in any way. But that is my opinion based on a few Criminal Justice courses and plain old common sense.

 

[kingpin008]

USAF - I agree. The punch was unnecessary, and is a great example of escalation of force when none was needed.

As far as holding businesses responsible for the safety of their customers, I'm still not sure where I fall in the matter. On one hand, some places (schools, for example) make it all too easy for psychopaths to come in and rack up a bodycount. However, there is something to be said for not having to rely on someone else's actions to keep you safe from harm.

 

[Frank Ettin]

...As far as holding businesses responsible for the safety of their customers, I'm still not sure where I fall in the matter....

In any case, I suspect that Denny's will appeal. We'll have to wait and see where the court of appeals falls in the matter.

 

[leadaddict]

It sounds as if there won't be an appeal.
"There reportedly won't be an appeal from Denny's - part of the agreement reached" - from the fist article.

 

[Sky]

Owen The punch may not have been right and the rules set forth by this society may not always have an element of common sense but I totally understand your actions. When a threat like he made was issued in the not to distant past he would have been lucky to leave walking with his life. We have become so politically correct and afraid of some authority cracking our head over some inane action that we have given up our man hood to someone else. If he would have come back with a shot gun and opened up and killed like a Luby's style massacre we would be having a different discussion now and probably you would not be involved? hahahah Yes there are laws and there are actions to fit a situation; imagine if he would have said that to an off duty Cop. Hopefully the laws and the actions meet sometimes! +1 for Cosmoline I am actually glad I am so old now unless someone wants to put me out of my misery I stay under the radar...I hope!

 

[mikerault]

The hard 2nd amendment part of says "If Denny's had a "No Guns" sign then yes, they are liable and should pay, however, if they did not then the folks who weren't able to defend themselves got what they sewed".

I believe we all have the duty to defend ourselves as long as we have the means. Do all restaurants have to hire armed guards now? If Denny's didn't prevent the people from protecting themselves and the people chose not to, it is not Denny's fault.

Now, Denny's should have called police to the scene when the fight occurred and had the folks involved sorted out. If they didn't do that, then they are also libel. If they called the police but the police didn't arrive in time, they did all they could be expected to.

 

[Jolly Rogers]

Owen, I do believe you commited an assault on that individual.

The threat to get the shotgun was an assault also.
Joe

 

[Frank Ettin]

It sounds as if there won't be an appeal.
"There reportedly won't be an appeal from Denny's - part of the agreement reached" - from the fist article.

Missed that. Denny's apparently agreed to a maximum amount they would have to pay, even if the verdict exceeded that, in exchange for its forgoing an appeal.

But there's another thing I missed. Apparently Denny's had substantial notice of increased risks late at night. From the Laura Pierce (5 Jan 2011) article:

• “Denny’s has a problem with its bar rush,” .... “They knew they had a problem – they tracked it...."
• “We’ve interviewed many employees who didn’t want to work there during the late-night bar rush, because of the risk of injury,..."
• "...Employees at the Kent restaurant, his suit claims, had indicated to management their unease with the roughness of the bar rush. 'They had asked for off-duty police during the bar rush, but nothing was done,'..."
• "...The lawsuit also claims that Denny’s has a 92-page printout of more than 3,000 workplace violence incidents at its eateries, from January 2004 to January 2007, including 63 incidents at its restaurants in Washington, and six at the Kent Denny’s...."

That sort of actual knowledge of a particular potentially hazardous condition is highly significant in a tort claim and an essential basis for liability. Without that evidence, it's highly unlikely that Denny's would have had any liability.

 

[Owen Sparks]

Quote:

Originally Posted by USAF_Vet
Owen, I do believe you commited an assault on that individual.

I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine. Without a witness or physical evidence it did not happen. I have had to use this technique several times to settle down a rowdy drunk and avoid having to hurt them. Anyone who played sports had had the wind knocked out of them before and knows that you get over it quickly.

Now, that being said I had a tiger by the tail and did not dare let this individual go after making a threat like that. For all I know he could have a shotgun ten feet away in the nearest car and there was no way I was going to let him make the next move. I was responsible for the personal safety of everyone in that bar and had to act. Because of my training I was able to disable him temporarily without causing perminant injury.

 

[cassandrasdaddy]

“Denny’s has a problem with its bar rush,” Perey said in a phone interview Tuesday. “They knew they had a problem – they tracked it. They had the numbers, but they didn’t do anything about it.

“We’ve interviewed many employees who didn’t want to work there during the late-night bar rush, because of the risk of injury, or was it going to escalate into something bad,” Perey said, noting the term “bar rush” refers to the 1-5 a.m. time period when the bars empty out and partiers are looking for somewhere else to go.


the fact that dennys knew and even tracked the problem sank their ship.

 

[Cosmoline]

That sort of actual knowledge of a particular potentially hazardous condition is highly significant in a tort claim and an essential basis for liability.

Criminal activity is the sole responsibility of the CRIMINALS. Once you start down the road of blaming the nearest pocket book, you take a step nearer to the nanny state. Otherwise no business could operate in a high-crime area since they will have "actual knowledge" of the "potentially hazardous condition." And indeed that's precisely what we find in many low-income areas. No business, no jobs, not even a grocery store. So well done plaintiff bar. Well done.

 

[MagnumDweeb]

In Owen's defense I kind of have an idea what he was dealing with. You are commonly dealing with the scum of the earth. Drunk, violent, worthless trash that have no future and nothing to lose even if it means getting unwelcomed affection from their bunkmate for th rest of their lives behind bars. I worked for a short time as a bus boy in-between high school and college, I had been varsity wrestler and had done well on the weight lifting team(too heavy to make my strength count for anythign), I was always being asked to jump in with the bouncers when trouble went down and I never did it, wasn't my pay grade wasn't my problem, if things went real bad (knife or gun got pulled) I'd go out to my truck and get my shotgun if I could. Lines of violent drunken trash came in every week looking to start trouble, especially with a 200 pound 5'9" broad chested and big biceped kid. Sometimes you have to put a beating on these trash to drive home reality. I'm glad I never had to really go back to that line of work. Talking to a bodybuilder one time at a gym years back we got to talking about guns and he basically said he hated having to ask people to leave because he was stuck there without a gun and the other guy could go and get one and come and kill him.

Now Dennys, I can tell you those places are location based when it comes to crime, the trouble is those crime ridden areas is where they do the most business. I picked a friend up one night after she was done at work and we went to Dennys, the whole time we were there it was uncomfortable. It was in a poor area and every G-boy you could imagine rolled in at 3:30 am. Some tried to talk to us because they recognized my friend, she was a dancer and leave it at that. After that if she was hungry for Dennys we did it on my side of town where there wasn't so many poor people so to speak. Not so much section 6 housing. Dennys ought to just face the facts they can't do busines so much in poor areas, its a pursuit with diminishing returns it seems, unless that 46 million is just a drop in the bucket in comparison to the business they do.

 

[USAF_Vet]

The threat to get the shotgun was an assault also.

True, but two wrongs don't make a right. (three lefts do however )

I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine.

Be that as it may, injury or no, putting your hands upon another in a violent manner is assault. No gray area there. You could have flicked his nose, and in the eyes of the law, it's assault if it is unwanted, intentional contact.

Without a witness or physical evidence it did not happen.

Gotta disagree with you there. Just because it can't be proven in a court of law doesn't mean the assault never happened.

I have had to use this technique several times to settle down a rowdy drunk and avoid having to hurt them. Anyone who played sports had had the wind knocked out of them before and knows that you get over it quickly.

I'm not overly worried about you punching a drunk, I've done worse in the line of duty. My only concern is escalation of force above and beyond what is neccessary.

Now, that being said I had a tiger by the tail and did not dare let this individual go after making a threat like that. For all I know he could have a shotgun ten feet away in the nearest car and there was no way I was going to let him make the next move. I was responsible for the personal safety of everyone in that bar and had to act. Because of my training I was able to disable him temporarily without causing perminant injury.

Not letting him go would mean a physical restraint until police arrived. From what I'm reading, you tossed him out of the bar, he verbally threatened you, you verbally and physically retaliated, and he left. Temporarily disabling the man, then allowing him to leave under his own power ultimately accomplished nothing, other than give you the chance to arm yourself. He could have had a shotgun 10 feet away, or 10 miles away. The fact that he didn't come back is only partially relevant here. I'm not downing you for what you did, I would have simply done it differently. Punching the man may have provoked him to further violence. In your case, it didn't, and that is a good thing. It may have just as easily turned out differently.

In any case, I know I'm taking this thread off topic.

Back on topic, did Denny's settle out of court, or was there a judgement against them? Typically, a settlement is not a plea of liability, although the general public typically views it as such.

 

[Frank Ettin]

...Criminal activity is the sole responsibility of the CRIMINALS. Once you start down the road of blaming the nearest pocket book, you take a step nearer to the nanny state. Otherwise no business could operate in a high-crime area since they will have "actual knowledge" of the "potentially hazardous condition."...

Not just risk in general. Note that I wrote, "...actual knowledge of a particular potentially hazardous condition..."(emphasis added).

Owen, I do believe you commited an assault on that individual.

I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine. Without a witness or physical evidence it did not happen....

What absolute garbage.

[1] It wasn't assault. It was battery.

[2] It was battery whether or not there were witnesses.

[3] It was battery whether or not there was damage.

[4] And it did happen; you've admitted it.

[5] So Owen Sparks, you've admitted committing the crime of battery.

 

[Cosmoline]

"...actual knowledge of a particular potentially hazardous condition..."(emphasis added).

A loose floorboard is a hazardous condition. Exposed wiring is a hazardous condition. Criminal misconduct is not a "hazardous condition." It's criminal misconduct. And it is the responsibility of the criminal, not of the insurance company of the business the criminal happens to be in. This is nothing but the search for a pocket book. That's all it ever was. To support this suit is to support mass torts against gun manufacturers. Because they certainly have "specific knowledge" of the "hazardous condition" their firearms may be involved in.

 

[Frank Ettin]

A loose floorboard is a hazardous condition. Exposed wiring is a hazardous condition. Criminal misconduct is not a "hazardous condition." It's criminal misconduct. And it is the responsibility of the criminal, not of the insurance company of the business the criminal happens to be in.....

But again, the particular hazardous condition in this case wasn't simply criminal conduct in general. It was Denny's specifically attracting rough and unruly customers during the early morning hours after the bars had closed, as evidenced by reported fights and violent incidents in Denny's locations during those hours.

That was apparently the basis for the jury verdict against Denny's and the award of damages. Whether or not it was actually sufficient as a matter of law to establish liability we won't know because Denny's waived its appeal. Now the legal question won't more fully be examined by a court of appeal.

 

[Cosmoline]

No, that's not a "hazardous condition." It's criminal assault. Saying it's "particular" gets you nowhere. All criminal activity is specific. All crimes are particular. What you're really talking about is an excuse to blame the nearest entity with money. That's all any of this ever was. Thus, it is not possible to take steps to avoid this risk as a business. It's not a wire that can be repaired. It's not a floorboard that can be replaced. Short of shutting down and leaving the neighborhood, there is no solution. That's what the OP was asking, and that's the hard truth of it. If you aren't judgment proof you shouldn't do business in the area at all. Any security measure you take is just going to open you up to more claims. It will prove you knew of the "hazardous condition." If you throw the scum out, the scum will sue you for it. If your staff gets tough with the nogoodnicks, your staff risks being arrested for assault. There is no safe harbor. There is no protection. The common sense of the common law has been warped into a kind of legitimized extortion. I've seen it, and fought hard against it, for my whole career. My side, supported by at least some legislatures and courts, has done a lot to hold back the floodtide. But the claims keep coming, each more absurd than the last.

 

[Frank Ettin]

No, that's not a "hazardous condition." It's criminal assault. All criminal activity is specific. All crimes are specific. What you're really talking about is an excuse to blame the nearest entity with money. That's all any of this ever was.

Believe what you want, but I can tell you that based on my over 30 years practicing law that the facts alleged, if supported by evidence at trial, would get the plaintiff an instruction to the jury by the judge to the effect that the jury could find that Denny's had knowledge of a particular hazardous condition.

Whether you think that result is right or just or proper is really beside the point. The corporate knowledge of Denny's as alleged would be a sufficient basis upon which to argue to the jury that Denny's did have knowledge of a particular hazardous condition, that therefore the injury suffered here was foreseeable, that Denny's had a duty to business invitees to take reasonable steps to prevent such injuries, that Denny's failed to do so, and that therefore it is liable for the damages suffered.

The jury obviously found that. Without an appeal there is no way to test the legal sufficiency of the the plaintiffs theory.

However, the fact that Denny's apparently agreed to a maximum payment amount in exchange for waiving its appeal strongly suggests that Denny's was very concerned that it knowledge and tracking of past violent, late night incidents would be very damaging to its case.

...It's not a wire that can be repaired. It's not a floorboard that can be replaced. Short of shutting down and leaving the neighborhood, there is no solution. That's what the OP was asking, and that's the hard truth of it. If you aren't judgment proof you shouldn't do business in the area at all. Any security measure you take is just going to open you up to more claims. It will prove you knew of the "hazardous condition." If you throw the scum out, the scum will sue you for it. If your staff gets tough with the nogoodnicks, your staff risks being arrested for assault....

I understand that' your view of things. And I can't say that I completely disagree with what you think social policy ought to be.

But that's not what the law is.

 

[Frank Ettin]

...did Denny's settle out of court, or was there a judgement against them?...

No, Denny's did not settle out of court. A jury delivered a verdict against Denny's, and a judgment was awarded the plaintiffs against Denny's.

What Denny's apparently did is something that is sometimes done in high exposure tort cases. Denny's and the plaintiffs agreed that if the verdict came in against Denny's, Denny's would pay a maximum of $ XXXXXXX, even if the judgment was greater. And the plaintiffs agreed to accept that amount in exchange for Denny's waiver of its right to appeal the judgment. That way (1) Denny's limits its exposure to a certain amount; and (2) the plaintiffs avoid the risk and delay of an appeal.

 

[Owen Sparks]

Not letting him go would mean a physical restraint until police arrived.

It is not that easy to restrain another grown man who does not want to be restrained, not with out hurting him while he is trying to bite and gouge. Yes I can do it but it requires getting on the ground and putting him in some sort of wrestling hold which means I am not able to control what is happening in the bar. Trying to hold someone down is extremely dangerous in public because people usually have buddies present and I had no idea if he did or not. Most real fights involve other people and I do not want to get kicked in the head while I am restraining with some drunk.

The last thing you want in the bar business is to attract the attention of the police. First of all it labels the bar as a trouble spot and blue lights out front pretty much guarantees that evening will be a financial loss. It scares off customers as the word spreads very rapidly in a small town that the cops were at X bar and everyone avoids it for the rest of the evening. Our policy was to never call the police unless we had to. Those days are long gone now because when a fight breaks out every do gooder with a cell phone calls the police and I’m sure that happened at Denny’s.

From what I'm reading, you tossed him out of the bar, he verbally threatened you, you verbally and physically retaliated, and he left. Temporarily disabling the man, then allowing him to leave under his own power ultimately accomplished nothing, other than give you the chance to arm yourself.

And that was my only objective at that point, to arm myself.

He could have had a shotgun 10 feet away, or 10 miles away. The fact that he didn't come back is only partially relevant here. I'm not downing you for what you did, I would have simply done it differently. Punching the man may have provoked him to further violence.

And having him arrested and taken to jail would not? He got over that punch in 30 seconds but having him arrested jail and fined is a sure way to incur future retaliation. I gave the guy an out and he took it. Again I don’t like having to look over my shoulder.

Now, to drift this back on topic, what could Denny’s have done to prevent this? The cooks, buss boys and waitresses are not trained wrestlers and even if they were, they would not get involved in a brawl for what they are getting paid. Besides, people have been conditioned all their lives that the worst thing that you can possibly do is to “Take the law into your own hands.” It is little wonder that most people stand idly by when they see a crime. Compound this with the very realist possibility of getting sued and ending up with people like USAF Vet sitting on the jury.

 

[USAF_Vet]

Owen, I've worked with some pretty nasty people, up to and including murderers. However, that was in a controlled environment (detention facility). Your experiences are obviously greatly different than mine, and I'm not faulting you for what you did. We'll just agree to disagree and leave it at that.

Denny's apparently was well aware of the potential violence they allowed in after hours. Thats like smoking next to an open powder keg, catastrophe waiting to happen. They could have done many things, such as not be open 24 hours in that particular location. Not completely unheard of, wouldn't cost them too much in the long run and would have avoided this situation. That would probably been the most reasonable course of action, but reason and profits rarely see eye to eye. It isn't likely the owner or general manager stopped by often at 2am to see how riotous the place got, or simply didn't care as long as profits were made.
It would be interesting to see how many employees had filed complaints about the situation.

 

[Girodin]

Owen, I do believe you commited an assault on that individual. I believe that most people who threaten violence are all talk, but ever the boy scout, I'd still be prepared. The verbal exchange and retrieving the pistol would have probably been enough in your scenario. the punch to the solar plexus to someone who was no longer acting violent was probably more than was necessary to end the situation.

Bouncers commit battery all the time. When the viticm is some drunk A hole and witnesses are your buddies it makes it much easier to get away with. Not unlike the situation with cops.