Jury Sides With Jazz Club After Patron Rejected $100K Settlement Over Fall
Attorneys for Cafe 290 said they will seek legal fees after their $100,000 settlement offer was rejected.
August 19, 2019 at 02:34 PM
5 minute read
A trial over a woman’s claim that she suffered multiple injuries in a fall at jazz club Cafe 290 ended on a sour note for her when a Fulton County jury found for the defense after a weeklong trial.
Lead defense attorney Brantley Rowlen said that, because she turned down an offer to settle the case for $100,000, he’ll ask the court to award attorney fees somewhere between $75,000 and $100,000 under Georgia’s offer of judgment statute.
That law says a plaintiff who declines a settlement offer then loses at trial may have to pay the defendant’s attorney fees from the date of the rejected offer.
“There were some pretrial negotiations, but we were always several hundred thousand dollars apart,” said Rowlen, managing partner at the Savannah office of Lewis Brisbois Bisgaard & Smith, who tried the case with associate Kate Cappelman.
Plaintiff Tina Spencer-Smith is represented by Bruce Millar and Anthony Jones of Jonesboro’s Millar & Mixon. They did not respond to requests for comment.
According to Rowlen and court filings, Spencer-Smith, now 54, arrived at the Sandy Springs nightspot with a friend for a show in April 2015.
Her complaint said the hostess asked another employee to show them to their table. That employee, in turn, pointed out their reserved, high-top table but did not escort them to it.
As Spencer-Smith pulled out the bar stool-type chair, she stepped backward and tripped over a step leading to an exit door and fell.
“Tina immediately felt pain in her right hip and right knee,” her account of the incident said. “After her fall, Tina attempted to stay but could not take the increasing pain.”
Spencer-Smith’s friend drove her to the emergency room at Northside Hospital.
She underwent a physical therapy regimen, but the pain continued, and a few months later she had an MRI that revealed a spinal disc bulge in her lower back.
She was treated by multiple doctors for hip and thigh pain and in 2018 underwent surgery to repair torn cartilage in her hip.
Spencer-Smith sued Cafe 290’s corporate owner, Volunteer Restaurant Associates, and property owner Newburger-Andes Co. in Fulton County State Court in 2017.
According to Spencer-Smith’s pleadings, a light that was supposed to illuminate the steps was covered with a poster, and candles on the tables were not sufficient to allow her to see where she was going.
Spencer-Smith also said a staff member told her she was not the first person to fall over the steps.
According to the pretrial order, Spencer-Smith had medical bills totaling nearly $157,000 and is likely to accrue more in the future.
Cafe 290’s portion of the order said the stairs were illuminated by a floor light and a spotlight on the ceiling and that there was an illuminated exit sign over the door.
Spencer-Smith also was cautioned to mind the steps, Cafe 290 said, and “had been to other night clubs and jazz clubs before, and was therefore aware nightclubs, especially those featuring live music, typically use lower lighting.”
“The steps were in an open and obvious location readily visible and noticeable, despite low light,” it said.
“There was no dispute that she fell,” Rowlen said. “One of our contentions was, how dark was it? Everyone used the terms ‘dim lighting’ or ‘dark’—what does that mean? Movie theater dark? Houston’s restaurant dark? Like any other jazz club or establishment that has the lights dimmed for ambiance purposes, there was enough light to walk around.”
During the trial before Judge Diane Bessen, Rowlen said Spencer-Smith’s treating physicians provided expert testimony, including “pretty dramatic” testimony from the surgeon who operated on her hip that the treatment was not related to fall itself, he said.
The defense expert was Cumming orthopedic surgeon Keith Osborn, he said.
After the close of evidence the defense filed a motion for a directed verdict, arguing among other things that Spencer-Smith had not specifically linked all of her medical bills to the fall and that her claims for those damages “is based upon speculation and guesswork.”
The motion asked that she be required to prove “with specificity, which bills are related to the subject incident, or to remove those bills which she does not claim.”
Bessen “granted the motion related to special damages but let it go to the jury anyway,” Rowlen said.
After about an hour-and-a-half, the jury asked for guidance on the “open and obvious” jury instruction Bessne gave them and returned a defense verdict a half-hour later.
“Ultimately, they never got past liability,” he said.
Rowlen said he did not speak to the jury afterward.
“I don’t generally hang around if I win,” he said.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All'It Refreshes Me': King & Spalding Privacy Leader Doubles as Equestrian Champ
5 minute readFederal Judge Rejects Teams' Challenge to NASCAR's 'Anticompetitive Terms' in Agreement
Trending Stories
- 1'Largest Retail Data Breach in History'? Hot Topic and Affiliated Brands Sued for Alleged Failure to Prevent Data Breach Linked to Snowflake Software
- 2Former President of New York State Bar, and the New York Bar Foundation, Dies As He Entered 70th Year as Attorney
- 3Legal Advocates in Uproar Upon Release of Footage Showing CO's Beat Black Inmate Before His Death
- 4Longtime Baker & Hostetler Partner, Former White House Counsel David Rivkin Dies at 68
- 5Court System Seeks Public Comment on E-Filing for Annual Report
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250