ITEMS OF INTEREST

RECENT DECISIONS

Federal Employers Liability Act:
Ernest Wirtz v. Union Pacific Railroad Company, a Delaware Corporation; Hennepin County District Court; Case No. 27-CV-16-702.
Dan Gendreau and David Koob recently won summary judgment in a FELA case for Union Pacific Railroad, where plaintiff sustained serious injuries when he slipped and fell while descending a hill to return to his truck at the end of the work day. Plaintiff's deposition established that he could not identify what caused him to fall, and that he had no safety concerns about the condition of the hill, its height, or its slope while ascending it earlier in the day or while descending it just prior to the fall. The motion argued that plaintiff could not meet his burden of establishing that the workplace was not reasonably safe, and the Court agreed.

Property Damage/Class Action Claims:
Griffioen v. Cedar Rapids and Iowa City Railway Company, et. al.; Iowa District Court; Linn County, Case No. LACV078694.
Charles Hvass and David Donna were part of a team that obtained a Judgment on the Pleadings for the Union Pacific and other defendants in a multi-billion dollar claim for property damage arising out of the 2008 flooding of Cedar Rapids, Iowa. Plaintiffs claimed that multiple bridges spanning the Cedar River, two of which were owned by the Union Pacific, led to the 500 year flood. The District Court held the claims for property damage by over 6,000 landowners were pre-empted under Federal law, and dismissed the claims, awarding costs against the plaintiffs. The case involved multiple issues interpreting the scope of the Interstate Commerce Commission Termination Act ("ICCTA"), the powers of the Surface Transportation Board, and pre-emption of state law attempts to regulate the operation of rail activities.

Alleged Food Borne Illness:
Sullivan v. Garden Fresh Restaurant Corp.; United States District Court, Middle District of Florida, Case No. 6:13-cv-1187-ORL-18KRS.
Jan Evans and David Donna handled this case where Plaintiff claimed she contracted a food borne illness from her meal at the Sweet Tomatoes restaurant in Orlando, Florida. After the depositions of Plaintiff and her daughter were completed, we had the depositions and Plaintiff's medical records reviewed by a medical expert who opined that Plaintiff's illness and subsequent hospitalization were not caused by her meal at Sweet Tomatoes. Based on this we moved for Summary Judgment. The United States District Court found that Plaintiff could not establish food poisoning as a result of her meal and entered judgment against Plaintiff.

Premises Liability:
Jose Cruz v. Advance Auto Parts, Inc., Overland Manchester, LLC and Goldrich & Kest Industries, LLC; Connecticut Superior Court; Case No. HHD-CV-16-6065327S
G. John Veith recently obtained summary judgment on behalf of Advance Auto Parts, Inc. in an unusual premises liability case. Several defendants were involved including the landowner and lessor of the property, a property management company and a snow removal contractor. Although plaintiff claimed that questions of fact existed regarding Advance's control and responsibility to maintain the common areas, the Court disagreed and ruled in favor of Advance pointing out that mere speculation about theoretical conduct by employees did not give rise to a duty of care. Following the Court's summary judgment decision, Advance recovered its defense costs based upon its cross-claim for contractual defense and indemnity.

Thomas v. Blazin Wings, Inc., et. al.; Union County District Court, New Jersey; Case No. UNN-L4099-13
Dan Mitchell obtained a defense verdict on behalf of Blazin Wings, Inc. following a jury trial in New Jersey. Plaintiff claimed that, while attempting to punch a test of strength boxing game at a Buffalo Wild Wings Grill & Bar, his follow-through struck an adjacent video game. Allegations were: the video game was negligently placed too closely to the boxing game, there were no warnings on the game, and there were no protective barriers placed upon the game. Plaintiff sustained severe fractures to his hand and wrist that required multiple surgeries resulting in disability. Plaintiff's medical bills were approximately $62,000. The jury determined that Blazin Wings was not negligent.

Critchfield v. Blazin Wings, Inc., et. al.; United States District Court, District of Utah; Case No. 2:15-cv-00794-EJF
Scott Festin and Tom Flaskamp obtained summary judgment in a restroom slip and fall case for Blazin Wings, Inc. d/b/a Buffalo Wild Wings Grill & Bar. The plaintiff admitted seeing a wet floor sign and soapy water on the floor upon entering the restroom prompting him to proceed with "extreme caution". Plaintiff underwent neck, shoulder, and knee surgeries amassing medicals bills in excess of $135,000.00. We were able to establish the plaintiff was alone in the restroom and had clear paths to two other unobstructed toilets. The United States District Court granted summary judgment holding Blazing Wings, Inc. did not owe the plaintiff a duty because it could not have anticipated the plaintiff would reasonably encounter the known risk despite having alternative paths at his disposal. ***The Tenth Circuit Court of Appeals affirmed the summary judgment that Scott Festin and Tom Flaskamp obtained for Blazin Wings, Inc. d/b/a Buffalo Wild Wings Grill & Bar in this slip and fall case.
Fletcher v CFRA, LLC. In the Court of Appeals of Tennessee at Nashville. Case No. M2016-01202-COA-R3-CV
Charles Hvass was successful in obtaining an opinion from the Tennessee Court of Appeals affirming the grant of summary judgment for CFRA in a claimed assault case. Fletcher brought suit in Tennessee state court, claiming CFRA was responsible for an assault by its employee Hale, and that CFRA was negligent for hiring him, and failing to provide security guards on the premises on a Sunday morning. The trial court, and the appellate court, rejected the claims, granting and then affirming summary judgment. Judge Hamilton Gayden, Jr, granted summary judgment. Chief Judge Swiney of the Tennessee Court of Appeals wrote an extensive twenty page opinion, analyzing in detail the issues surrounding the respondeat superior claim made by plaintiff. The Court held that the job duties of Hale as a dishwasher did not include interaction with the public. The assault, which occurred after the bill had been paid, and which occurred off-premises, was not in the course and scope of employment.
Armstrong v. Blazin Wings, Inc., et. al., Leon Curtis Croft et. al.; United States District Court for the District of South Carolina, Columbia Division; Case No. 3:15-610-JFA
On the evening of the incident, November 8, 2012, Plaintiff was present at BWW not in any professional capacity, but as a guest, and had been drinking alcohol there. Around closing time, Plaintiff asked BWW employee, who was also a friend, to perform a self-defense technique on her so she could learn to do it. Plaintiff alleges she sustained a fractured wrist. Plaintiff sued BWW for negligent hiring/retention, premise liability and negligence. Buffalo Wild Wings was dismissed on the following three theories. First, the employee acted outside of his employment, and therefore the Doctrine of Respondeat Superior, and/or vicarious liability did not apply. Therefore, BWW was not responsible for his actions. Second, the action of the employee was unforeseeable, and therefore, there is no premises liability or negligence on behalf of Buffalo Wild Wings. Finally, the hiring measures employed by Buffalo Wild Wings were adequate, and noted that Plaintiff has withdrawn that claim for negligent hiring.
Jones et al. v. Tacala, L.L.C.; U.S. District Court - Eastern District of Tennessee, Case No. 2:10-cv-00176-JRG-DHI
Charles Hvass received a favorable verdict in this claim. Plaintiff caught her left middle finger tip between the chair bottom and a support rail, fracturing the tip and causing a large laceration. Liability was admitted. Plaintiff claimed Complex Regional Pain Syndrome, medical damages, limitations on the activities of daily living, and future disfigurement. Plaintiff videoed the IME by a hand surgeon. At the conclusion of a two day trial, plaintiff asked the jury for $500,000. The jury returned a verdict of $30,371.20, based on the testimony and video of the IME, surveillance which showed her using the claimed injured hand, and impeachment from the medical records.

Gille v. Bob Evans Farms, Inc. and Mimi's Cafe, Superior Court of The State of California for the County of Los Angeles, Case No. PC051277
David Donna tried a case in Los Angeles circuit court in January 2014. Plaintiff claimed she fell because the restaurant's lighting and stairs violated the building code. Plaintiff underwent three surgeries and amassed medical bills in excess of $200,000. The jury found our clients were not negligent.

Henshaw v. Advance Store Company, Incorporated, Genesee County Circuit Court, Michigan Case No. 12-98613-NO
Dan Mitchell and Dan Gendreau recently won a summary judgment from the bench for Advance Auto Parts in a case involving a slip and fall on "black ice" in Flint, Michigan. In an effort to avoid our potential open and obvious defense, plaintiff disputed the accuracy of weather data showing that the Flint area had received snow, ice, and rain just hours before the fall. Instead, he testified that the entire parking lot and entryway was "dry as a bone." Instead of pursuing an open and obvious defense, the summary judgment motion used plaintiff's version of the weather against him and argued that in light of this testimony, plaintiff could not prove actual or constructive notice of any hazardous condition.

Frostbutter v. Bob Evans Farms, Inc., United States District Court for the District of Maryland, Case No. 8:12-cv-02388-CBD
Les Gelhar got a defense verdict in this case. An 80-year-old plaintiff suffered a proximal femur fracture in a fall, requiring operative repair and internal fixation. She claimed that she fell when her foot became entangled in a decorative sink curtain in the ladies room. The curtain was unfortunately disposed of the day following her fall, leading the Court to give a spoliation instruction. The jury returned a defense verdict after a three-day trial. They were not convinced plaintiff fell in the manner she described. She tested positive for cardiac enzymes in the hospital following the fall, and on cross examination, her orthopedic surgeon acknowledge the possibility that dizziness recorded in the emergency room chart may have been a symptom of an impending heart attack, not a consequence of the trauma.

Schaeffer v. Bob Evans farms, Inc., Court of Common Pleas, Allegheny County, Pennsylvania, Case No. GD-11-011422
Les Gelhar received another favorable verdict in this case. Plaintiff fell directly on an arthritic knee, due to a patch of ice by a newspaper box in front of defendant's restaurant. A knee replacement approximately four months later was claimed to be causally related to the fall. Plaintiff had a prior history of end-stage arthritic changes, due to a distal femur fracture suffered in a motor vehicle accident 30 years before. After a five-day trial, the jury found negligence but set damages based on defendant's evidence that the fall caused a temporary aggravation only. The total award was $9,997. Plaintiff's last settlement demand prior to trial was $400,000 and defendant's pretrial offer was $10,000.

EARLIER NOTABLE DECISIONS

Premises Liability:
Clovis Jones v. Blazin Wings, Inc. d/b/a Buffalo Wild Wings Grill & Bar and Johnnie Baca, Colorado State District Court, Pueblo County, Case No: 2008CV645 Div. G
The plaintiff suffered dental and facial injuries in fight following broadcast of a popular boxing match. He claimed the restaurant knew or should have known an incident was likely to occur and that reliance on unarmed managers to provide crowd control was negligent. The jury returned a defense verdict after a four day trial.

Mildred Johnson v. Old Country Buffet, Circuit Court of Cook County, Illinois, Case No. 09 L 010444
Buffet restaurant customer fractured her wrist in a fall near a serving table, claiming a slippery substance on the floor caused her accident. When deposed, the plaintiff and her witness failed to identify any substance observed on the floor before or after her fall. The plaintiff said she overheard bystanders say there was something on her shoe. The court granted summary judgment finding that the plaintiff must be able to identify the cause of her fall before proceeding to trial.

Railroad Litigation:

Federal Employers Liability Act:
Giebel v. Union Pacific Railroad Company, United States District Court for the district of Minnesota Case No. 08CV6294 PJS/FLN
Locomotive conductor suffered partial fingertip amputation when locomotive restroom door slammed shut on his hand. Plaintiff claimed the incident created strict liability for violation of the Locomotive Inspection Act. The court granted partial summary judgment dismissing the strict liability claim.

Grade Crossing Accident:
Keep v. Union Pacific Railroad Company, Edward Kraemer & Sons, Inc., and Waste Management of Minnesota, Inc., Minnesota State District Court, Dakota County, Court Case No. 19HA-CV-10-827
Commercial truck driver was seriously injured in a private crossing accident after delivering construction debris to a waste handling facility. Plaintiff claimed his view of an approaching train was obstructed by vegetation, and that the inconsistent recollections of bystander witnesses suggested that the train did not signal its approach properly. The court granted summary judgment dismissing all claims. The court found that plaintiff was conclusively negligent as a matter of law because of his actual awareness of that the tracks were in use. Additionally, plaintiff lacked proof that the railroad violated any duty. The court was particularly impressed with the railroad's locomotive mounted video event recorder.