On belalf of Raymond Giudice P.C posted in Personal Injury on Tuesday, October 15, 2013.
The defense offered $125,000 to settle the case just before the two-day trial began, lawyers for both sides said.
“I think the jury probably got it right,” said Christopher Penna of Penna & Mendicino, who represented the Dairy Queen. “I don’t think we had a chance of getting a defensive verdict.”
Penna came close to forcing the plaintiff to pay some of his side’s attorney fees due to the state’s offer of settlement law. It says a plaintiff who rejects a settlement offer but wins less than 75 percent of the offer at trial has to pay the defendant’s fees from the time the offer was made.
A verdict of $6,250 less would have triggered the law. “We came within a gnat’s eye of being able to collect attorney fees,” Penna said.
L. Chris Stewart of Stewart, Seay & Felton, attorney for plaintiff Kymberli Bush, said he liked the $125,000 deal himself. “It was not a bad offer at all,” Stewart said, especially considering the location. He said Floyd County Superior Court Judge Walter Matthews told the lawyers before the trial began that Rome was not a good venue for plaintiffs and that the parties should try to resolve the dispute.
Stewart said his client said no. He said his client was “personally offended” that the owner tried to suggest that she was moving too fast, and that the fall wasn’t the Dairy Queen’s responsibility.
Bush fell in October 2010. She was leaving the Dairy Queen at closing time with her family. When she pressed on the push bar of the door, instead of releasing the lock, it fell off. When the door didn’t open, she fell into it, breaking her nose. “It wasn’t even a complete break. It was just a hairline fracture,” Stewart said. Her doctor said the injury created a deviated septum and did surgery to repair it. Her medical bills totaled $50,000.
Stewart said he felt the case turned on the testimony of a police officer who said the door was broken, contradicting the owner’s contention that there was nothing wrong with it prior to the incident. “If he would have just admitted something was wrong with the door, we would have lost,” Stewart said. Penna noted that the plaintiff’s side had effective pictures of Bush with a broken nose.
One of the challenges to the plaintiff’s side was that every person in the jury pool reported being a customer of the Dairy Queen, Stewart said. Nearly all of them knew the owner. They lawyers finally agreed to excuse only those potential jurors who reported being close friends with the Dairy Queen owner.
The jury included eight women and four men. Two were African-American. Stewart said the majority of the jurors reported being unemployed and looking for work. Most of those who had jobs worked for the regional medical center in Rome.
The case was presented in a day and a half. “I’m a firm advocate of short, short trials,” Stewart said. The jury deliberated for about three hours and reached a verdict July 16. The judgment was paid by Westfield Insurance and the paperwork finished this month.
The case is Bush v. Khatija Inc., doing business as Dairy Queen, No. 12CV00826JFL002.
The defense came close to forcing the plaintiff to pay some of his side’s attorney fees due to the state’s offer of settlement law. It says a plaintiff who rejects a settlement offer but wins less than 75 percent of the offer at trial has to pay the defendant’s fees from the time the offer was made.
SOURCE: The Daily Report “Woman Awarded $100,000 in Dairy Queen Fall,” Katheryn Hayes Tucker, October 14, 2013.