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Customer underwent back surgery after fall at Taco Bell

Amount:

$756,794

Type:

Verdict-Plaintiff

State:

Texas

Venue:

Dallas County

Court:

Dallas County Court at Law No. 2

Injury Type(s):

hip; back-lower back; back-fusion, lumbar;
back-disc protrusion, lumbar;
head; head-headaches; head-concussion; elbow; other-soft tissue; other-chiropractic; other-back and neck; other-steroid injection; other-epidural injections; wrist; surgeries/treatment-discectomy

Case Type:

Hotel/Restaurant; Premises Liability – Restaurant; Slips, Trips & Falls – Falldown; Premises Liability – Failure to Warn; Slips, Trips & Falls – Slip and Fall; Premises Liability – Dangerous Condition

Case Name:

Deandre Gilkey v. Taco Bell of America LLC,
No. CC-14-02956-B

Date:

August 17, 2016

Parties

Plaintiff(s):

Deandre Gilkey (Male, 38 Years)

Plaintiff Attorney(s):

Jeffrey M. Benton;
The Benton Law Firm;
Dallas,
TX,
for
Deandre Gilkey

Plaintiff Expert(s):

Scott Farley; M.D.; Orthopedic Surgery; Mesquite,
TX called by:
Jeffrey M. Benton

Defendant(s):

Taco Bell of America LLC

Defense Attorney(s):

Donald B. Dickinson;
Dickinson Bartlett, P.C.;
Dallas,
TX,
for
Taco Bell of America LLC ■ J. Robert Skeels;
Dickinson Bartlett, P.C.;
Dallas,
TX,
for
Taco Bell of America LLC

Defendant Expert(s):

Marvin Van Hal;
Orthopedic Surgery;
Dallas,
TX called by:
Donald B. Dickinson, J. Robert Skeels

Insurer(s):

Ace Group of Cos.

Facts:

On June 9, 2013, plaintiff Deandre Gilkey, 38, a bouncer at a nightclub, went to a Taco Bell restaurant in Grand Prairie. After placing a to-go order, he filled up his drink at the self-serve area, which was on his left. When his order was called, he picked it up and then topped off his drink. As he was walking past the registers to go out the door, he slipped and fell in a large puddle of clear liquid. Store video showed an employee noticing the puddle and pointing to it 34 seconds before Gilkey fell. Gilkey claimed multiple injuries. Gilkey sued Taco Bell of America LLC on a theory of premises liability, alleging that employees failed to remedy or warn Gilkey of an unreasonably dangerous condition of which they had notice. Also, Taco Bell has a policy that an employee who notices a wet area on the floor must move immediately to the wet area and warn customers, while another employee gets a mop and a "Wet Floor" sign. The policy was not followed in this instance. Also, a regional manager and four store employees, including the store manager, testified that they were not aware of this policy. The regional manager was the corporate representative. Plaintiff’s counsel argued that the policy was designed to prevent exactly what happened in this case. The defense denied that it was negligent not to follow the policy. The defense also emphasized that less than a minute passed between the time an employee noticed the puddle and the time of the fall. Plaintiff’s counsel countered that 34 seconds was plenty of time for an employee to move to the puddle and warn customers. The defense also argued that the puddle was open and obvious; that Gilkey had already walked through the area of the puddle once, after picking up his order; and that he was not watching where he was going when he fell. The puddle was in a relatively small area, and Gilkey therefore could not reasonably have missed seeing it, the defense argued. Also, the employee who noticed the puddle testified that he immediately told a co-worker to clean it up, and the defense argued that Gilkey was close enough to hear this statement. Plaintiff’s counsel noted that the co-worker who was told to clean it up denied that he was told to do this. One employee said she believed that Gilkey poured the drink on the floor on purpose, so that he could fall. Defense counsel did not make this argument, however. The defense introduced two prior felony convictions of Gilkey. One was for conspiracy to distribute marijuana, and the other was for robbery. In his deposition, he had denied ever having been in prison, and the defense impeached him at trial with evidence to the contrary.

Injury:

Gilkey went by ambulance to the emergency room. He claimed that the incident caused a 9- to 10-millimeter broad-based protrusion at L5-S1, as well as soft-tissue neck, hip, right wrist and right elbow injuries, headaches and a concussion. He said his feet slipped out from under him and that he landed hard, hitting his head on the floor. On the date of the incident, he complained of lower back, hip, wrist and elbow pain. He was released from the emergency room the same day. He returned on June 27 with generally the same complaints and was again treated and released. On July 13, he went to a chiropractic clinic, where his complaints included neck pain and headaches. On Sept. 26, 2013, Gilkey went to a neurologist, who diagnosed him with a concussion. Gilkey continued treating with the chiropractor through Feb. 12, 2014. That same month, he underwent epidural steroid injections. He later underwent a discectomy and fusion at L5-S1. The surgery was considered a success, although Gilkey said he continued to experience pain and decreased range of motion in his lower back. It made him unable to walk or stand for long periods, which affected him at his job, he said. By the time of trial, he was working in a warehouse, in addition to working as a bouncer. He also said he could not exercise or play basketball as much as before. His other injuries resolved by the time of trial. Plaintiff’s counsel sought $481,794 for past medical bills; $204,000 for future physical pain and mental anguish; and unspecified damages for past physical pain and mental anguish and physical impairment. He also sought damages for future physical impairment. The defense disputed the extent and causation of Gilkey’s injuries and argued that the surgery was not medically necessary. The defense expert, an orthopedic surgeon, testified that, under the Occupational Disability Guidelines of the Work Loss Data Institute, a fusion is not indicated in the absence of a fracture or spinal instability, neither of which existed in this case. Plaintiff’s counsel said that the defense expert clung for a long time to the position that Gilkey did not complain of lumbar pain at the initial emergency room visit, even though this position was contradicted by the hospital records. The defense argued that Gilkey’s pain and suffering was at least partly due to two conditions that had nothing to do with this incident. He had had gout in his lower legs and had been to the emergency room for it about 50 times in the two years before the incident. Also, sometime after his back surgery, Gilkey was shot in the leg at the nightclub where he worked; as a result, he was hospitalized and had to go through rehabilitation.

Result:

The jury found only Taco Bell negligent and awarded Gilkey $756,794.

Deandre Gilkey: $481,794 Personal Injury: Past Medical Cost; $61,000 Personal Injury: Past Physical Impairment; $204,000 Personal Injury: Future Physical Impairment; $10,000 Personal Injury: future physical pain and mental anguish

Actual Award:

$832,968.94

Trial Information:

Judge:

John B. Peyton

Demand:

$400,000

Offer:

$350,000

Trial Length:

3
 days

Jury Vote:

6-0

Post Trial:

With prejudgment interest of $71,241.71 and taxable costs of $4,933.23, the final judgment was $832,968.94. ‘s motion for new trial was denied.

Editor’s Comment:

This report is based on information that was provided by plaintiff’s and defense counsel.