You be the jury...

[crimzy]

Ok, I have a case that's now kicked into high gear and I'm preparing for a jury trial at the end of the month. It's a pretty juicy case and I just wanted to lay it out on here and get some thoughts or discussion, or whatever. The case has gotten some local press and I'm working my butt off on it, hopefully to see it pay off one day. So here goes...
My client, let's call him Mr. Smith, was tortured in the basement of a strip club by 4 men (3 of whom worked for the bar), while it was open for business. He was lured to the place by the manager, who texted him that he was going to pay him for some re-modeling work my client did at the place. The 4 guys taped him to a chair and used the butt of a gun to hit him repeatedly about the head and face, they drilled through his hand, and used a hammer to break his fingers. With the gun they knocked out 11 of his teeth, pieces of which were embedded in his gums. He has had to have all of his teeth removed, and will need to undergo long term reconstructive surgery. He has also lost most of his vision in one eye.
The 4 men who did this each pled guilty in the criminal cases, and 2 of the 4 are still in prison. None of these facts are in dispute.
Mr. Smith has gone through a series of attorneys (I am #4). In addition to the physical injuries that he suffered, he has been diagnosed with Post Traumatic Stress Disorder, Anxiety Disorder and Depression as a result of the incident, and he is unable to work.
We sued the bar where this occurred for several torts, including and most importantly negligent hiring, training and supervision. There is no lawsuit against the 4 perpetrators as they don't have anything. We will show that there was a history of violence perpetrated by the manager of the bar. There are past police reports and we have deposition testimony from the detective that he had been called to the bar 5 or 6 times for fights involving this manager. The owner of the bar testified that he never checked out anything about this manager before hiring him and the previous manager actually fired this guy (when he was just a bouncer) for being too violent. The owner brought him back as manager and fired the other guy. I have 2 other prior managers who discussed this guy's violent propensities with the owner and they will testify.
The bar is covered by an insurance policy. The insurance company has already filed an action for declaratory judgment claiming that there is no coverage for intentional acts. They filed a summary motion to request that the court rule definitively that they don't have to cover the event and the judge denied their motion so at this point there is coverage.
I believe that the judge will likely order that, at trial, the jury (if they find in our favor) will have to allocate a percentage of fault to the bar, and a percentage to these 4 assailants and then decide a total damage award. The insurance company will likely be on the hook for the fault allocated to the bar but not for the intentional part.
So, that's the basic outline of facts. If you're on the jury, what would you like to see? What would sway you to find more fault in the bar, or would you simply blame the undisputed wrongdoers? Moreover, as intelligent people, what are your thoughts?
BTW, everything I've outlined is a matter of public record so I have not revealed any confidences or anything improper, (just in case anyone wondered). Thoughts? Questions? Impressions?

 

[darthtang aw]

Ok, I have a case that's now kicked into high gear and I'm preparing for a jury trial at the end of the month.  It's a pretty juicy case and I just wanted to lay it out on here and get some thoughts or discussion, or whatever.  The case has gotten some local press and I'm working my butt off on it, hopefully to see it pay off one day.  So here goes...
My client, let's call him Mr. Smith, was tortured in the basement of a strip club by 4 men (3 of whom worked for the bar), while it was open for business.  He was lured to the place by the manager, who texted him that he was going to pay him for some re-modeling work my client did at the place.  The 4 guys taped him to a chair and used the butt of a gun to hit him repeatedly about the head and face, they drilled through his hand, and used a hammer to break his fingers.  With the gun they knocked out 11 of his teeth, pieces of which were embedded in his gums.  He has had to have all of his teeth removed, and will need to undergo long term reconstructive surgery.  He has also lost most of his vision in one eye. 
The 4 men who did this each pled guilty in the criminal cases, and 2 of the 4 are still in prison.  None of these facts are in dispute.
Mr. Smith has gone through a series of attorneys (I am #4).  In addition to the physical injuries that he suffered, he has been diagnosed with Post Traumatic Stress Disorder, Anxiety Disorder and Depression as a result of the incident, and he is unable to work. 
We sued the bar where this occurred for several torts, including and most importantly negligent hiring, training and supervision.  There is no lawsuit against the 4 perpetrators as they don't have anything.  We will show that there was a history of violence perpetrated by the manager of the bar.  There are past police reports and we have deposition testimony from the detective that he had been called to the bar 5 or 6 times for fights involving this manager.  The owner of the bar testified that he never checked out anything about this manager before hiring him and the previous manager actually fired this guy (when he was just a bouncer) for being too violent.  The owner brought him back as manager and fired the other guy.  I have 2 other prior managers who discussed this guy's violent propensities with the owner and they will testify.
The bar is covered by an insurance policy. The insurance company has already filed an action for declaratory judgment claiming that there is no coverage for intentional acts.  They filed a summary motion to request that the court rule definitively that they don't have to cover the event and the judge denied their motion so at this point there is coverage. 
I believe that the judge will likely order that, at trial, the jury (if they find in our favor) will have to allocate a percentage of fault to the bar, and a percentage to these 4 assailants and then decide a total damage award.  The insurance company will likely be on the hook for the fault allocated to the bar but not for the intentional part. 
So, that's the basic outline of facts.  If you're on the jury, what would you like to see?  What would sway you to find more fault in the bar, or would you simply blame the undisputed wrongdoers?  Moreover, as intelligent people, what are your thoughts? 
BTW, everything I've outlined is a matter of public record so I have not revealed any confidences or anything improper, (just in case anyone wondered).  Thoughts?  Questions?  Impressions?
This is my issue with lawsuits. if the bar owner holds any blame, why was he not tied to the criminal convictions? The bar owner did not order the beating nor participate...You wouldn't want me on the jury.

 

[crimzy]

Fair enough but negligence is not a crime in this situation, however the law does recognize civil liability for damages. If you were instructed by the judge about the law in this field, and plaintiff sustained his legal burden, would you follow the law?

 

[2quills]

Which club?

 

[crimzy]

Loll... you looking for something to do tonight?

 

[darthtang aw]

Fair enough but negligence is not a crime in this situation, however the law does recognize civil liability for damages. If you were instructed by the judge about the law in this field, and plaintiff sustained his legal burden, would you follow the law?
is there enough evidence to prove the owner could have known there was a chance this could happen? And I dont mean the guy roughed a few people up a tad bit more than usual while removing the offending customer from the bar. Anything that would indicate this employee was liable to act in such a manner as to trick someone into being kidnapped and tortured?

 

[crimzy]

Not to that level. The owner had actual knowledge of his violence and had been sued before for injuries he caused but nothing to this level.

 

[2quills]

Not tonight lol. But 16 years in and around the Detroit area, I've met a few owners back in the day.
Just currious.

 

[reefraff]

What was the motivation for the attack?

 

[darthtang aw]

Not to that level. The owner had actual knowledge of his violence and had been sued before for injuries he caused but nothing to this level.
Are you able to disclose what those previous events entailed?

 

[reefraff]

My wife who's got about 30 years in as a Paralegal (Working for real live lawyers) thinks it's a slam dunk but get ready for an appeal from the insurance company.
Why are you the 4th lawyer?

 

[beth]

If I was a jury member, I'd need to see clear negligence of the bar owner. Yes, you'd have to open with all the horrors of what happened to your client, but the proof needed, as you said, is not that something criminal happened as that is given, but that the owner of the bar has responsibility based on his choice of manager and the lack of supervision of the manager and what was going on in the bar which allowed for this to happen. What background check did the owner do? Background check would include references, conversations with previous employers, and not just criminal history.
You'd need to hammer in the suffering of your client to begin with but then lay out how the actions of the owner was negligent and resulted in unsavory business practice. If I owned a bar, I'd want to do a background check on all my employees, but particularly my manager. Whose gun was used against your client? Did it belong to the bar, the owner, the manager? Did the manager have any felonies?
What exactly does the ins. policy cover?

 

[crimzy]

Quote:
Originally Posted by reefraff http:///t/394134/you-be-the-jury#post_3507729
What was the motivation for the attack?
Interesting question and this is for debate. My client has indicated that he previously went to the police about the prostitution, drug trafficking and violence in the bar, and this was retaliation for that. He was familiar with the bar because he worked as a bouncer there before he did the re-modeling work. The main assailant claimed that my client tried to hire someone to beat him up so he was going to "put a scare" into him but it spiraled out of control.
Quote:
Originally Posted by Darthtang AW http:///t/394134/you-be-the-jury#post_3507731
Are you able to disclose what those previous events entailed?
There will be testimony about a previous lawsuit due to this manager, and I found another suit where an unidentified bouncer, "John Doe" used brass knuckles and broke a patron's jaw. That evidence will be tough to introduce because I don't have a witness to positively ID the same guy. Prior police reports show threats with a gun and general fights.
Quote:
Originally Posted by reefraff http:///t/394134/you-be-the-jury#post_3507732
My wife who's got about 30 years in as a Paralegal (Working for real live lawyers) thinks it's a slam dunk but get ready for an appeal from the insurance company.
Why are you the 4th lawyer?
The appeal would hurt because the court of appeals and supreme court are extremely pro-insurance company. My judge is actually great but I am concerned about too good of a result and the appeal that would follow. I am the 4th lawyer because my client has some psychological issues. The first firm, who is about as well known of a lawyer as we have around here, was fired because my client became upset at some of the actions of the associate handling the case. The next 2 attorneys were pretty young and inexperienced and really not able to handle a case like this, (never even done jury trials before). He and I have a good relationship but it's a tough situation. If I get a poor result I'm sure I'll get blamed.
Quote:
Originally Posted by Beth http:///t/394134/you-be-the-jury#post_3507736
If I was a jury member, I'd need to see clear negligence of the bar owner. Yes, you'd have to open with all the horrors of what happened to your client, but the proof needed, as you said, is not that something criminal happened as that is given, but that the owner of the bar has responsibility based on his choice of manager and the lack of supervision of the manager and what was going on in the bar which allowed for this to happen. What background check did the owner do? Background check would include references, conversations with previous employers, and not just criminal history.

You'd need to hammer in the suffering of your client to begin with but then lay out how the actions of the owner was negligent and resulted in unsavory business practice. If I owned a bar, I'd want to do a background check on all my employees, but particularly my manager. Whose gun was used against your client? Did it belong to the bar, the owner, the manager? Did the manager have any felonies?
What exactly does the ins. policy cover?
The owner did nothing to check his background and kept him around even after finding out about the problems. Never checked a reference, never drug tested him nor checked criminal history... never gave him any instruction. Basically the owner came in to pick up envelopes of cash every week and told the manager to "take it outside" if an altercation arose.
It was the manager's gun. He doesn't have any previous convictions, (actually one expunged), but that will not come in.
The policy covers an "occurrence", which excludes intentional acts and includes negligence. The insurance company already took a shot and filed their motion arguing that the injuries were clearly intentional, and that the negligence claim was just an attempt to trigger coverage. They lost on that issue, but the court of appeals could take a close look at that decision if this went up on appeal.

 

[flower]

Hi,
People do not lure others to a basement, tape them to a chair, break their fingers with a hammer, beat them with a butt of a gun knocking out their teeth, and drill through their hands just for fun. The unfortunate fellow had to have done something to perpetrate the incident, that involvement should weigh on the decision...was it a case of... he raped a young woman, and the manager and friends decided on some self help/vigilantly style...or is it a case of he had love eyes for an X-girlfriend and the bad guys were jealous? Neither one makes the owner a member of the guilty party.
I also know enough from watching Judge Judy (LOL) that the manager is a Representative of the owner...If Mr. Smith's injury was the result of some policy of the owner, he would be responsible.. However, lots of people perpetrate a crime on the company property, and only the bad guys get punished, not the company he/she worked for. ... workers acting on an evil impulse, does not mean the boss had anything to do with it. Rough neighborhoods have rough customers, and also rough workers, so the past problems should weigh in with that consideration too. You can't argue that because of past problems the owner should be on alert for all people he hires. His Establishment isn't a child care facility where little innocent kids are involved...it's a strip club...a place of ill repute. So why ask the owner to screen his workers for more than the basic drug test, and do a background check to see if they have a record for being a thief? Niether check would have prevented Mr. Smiths situation and what he suffered. What more should an owner of a strip club care about as far as background checks? The FBI or police are hired according to tests on moral character...not bar tenders or bouncers.
Civil liability for damages??? I am no lawyer...does that mean that since something happened by a bad person on your property, the bad guy goes to jail for the crime, but the owner of the business or home is liable in a civil case since it is their property?
So, if that's the case... lets say.... that my brother (who has a past of having a bad temper) was hired by me to trim my bushes, and used the trimmer I supplied him with for the job, went and gutted some poor soul on my front porch, while I was inside the home unaware of what was happening, the damages leave the poor soul traumatized and scared for life...my brother, who is penniless and working for $10.00 would go to jail for the crime, but the victim could sue me, and I would have to pay for all the medical bills and all his pain and suffering because my brother was hired by me, and it happened on my property...really?
Any idiot can see the that Mr. Smith just wants money, and since the strip club has deep pockets, that is who he decided to sue...it makes Mr. Smith look really bad...he could care less about justice...it looks like he is so low that he wants to make a buck even on his own mutilated body...so we come full circle, what did he do to instigate the situation and lead to his injuries to start with?...Doesn't Mr Smith have some liability for being in a bad place and being around bad people?

 

[crimzy]

Quote:
Originally Posted by Flower http:///t/394134/you-be-the-jury#post_3507739
Hi,
People do not lure others to a basement, tape them to a chair, break their fingers with a hammer, beat them with a butt of a gun knocking out their teeth, and drill through their hands just for fun. The unfortunate fellow had to have done something to perpetrate the incident, that involvement should weigh on the decision...was it a case of... he raped a young woman, and the manager and friends decided on some self help/vigilantly style...or is it a case of he had love eyes for an X-girlfriend and the bad guys were jealous? Neither one makes the owner a member of the guilty party.
I also know enough from watching Judge Judy (LOL) that the manager is a Representative of the owner...If Mr. Smith's injury was the result of some policy of the owner, he would be responsible.. However, lots of people perpetrate a crime on the company property, and only the bad guys get punished, not the company he/she worked for. ... workers acting on an evil impulse, does not mean the boss had anything to do with it. Rough neighborhoods have rough customers, and also rough workers, so the past problems should weigh in with that consideration too. You can't argue that because of past problems the owner should be on alert for all people he hires. His Establishment isn't a child care facility where little innocent kids are involved...it's a strip club...a place of ill repute. So why ask the owner to screen his workers for more than the basic drug test, and do a background check to see if they have a record for being a thief? What more should an owner of a strip club care about as far as background checks? The FBI or police are hired according to tests on moral character...not bar tenders or bouncers.
Civil liability for damages??? I am no lawyer...does that mean that since something happened by a bad person on your property, the bad guy goes to jail for the crime, but the owner of the business or home is liable in a civil case since it is their property?
So, if that's the case... lets say.... that my brother (who has a past of having a bad temper) was hired by me to trim my bushes, and used the trimmer I supplied him with for the job, went and gutted some poor soul on my front porch, while I was inside the home unaware of what was happening, the damages leave the poor soul traumatized and scared for life...my brother, who is penniless and working for $10.00 would go to jail for the crime, but the victim could sue me, and I would have to pay for all the medical bills and all his pain and suffering because my brother was hired by me, and it happened on my property...really?
Any idiot can see the that Mr. Smith just wants money, and since the strip club has deep pockets, that is who he decided to sue...it makes Mr. Smith look really bad...he could care less about justice...it looks like he is so low that he wants to make a buck even on his own mutilated body...so we come full circle, what did he do to instigate the situation and lead to his injuries to start with?...Doesn't Mr Smith have some liability for being in a bad place and being around bad people?
Flower, nothing that you mentioned happened. The previous post has the different explanations as to why they claim this happened. The assailants admitted that they spent the evening doing cocaine.
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As to your second question, paragraph, I should have been more clear. The police reports, detective testimony, prior lawsuit, prior managers (3 of them) all speak of violence specifically perpetrated by this manager and not just general happenings at the bar.
Yes, civil liability means money. As to your question about hiring someone who does something bad, it is far more complicated than that. It depends on what the employee does, (if he is even considered an employee under the law) and whether he was acting in the scope of employment. But this issue is more than just the vicarious liability of the bar for the acts of an employee. As you and others mention, the owner did not assault this guy nor have knowledge that it was happening. The scrutiny is about their hiring practices and generally creating a dangerous environment where it was inevitable that people would be injured and/or killed. I will argue to the jury that a business being run in such a negligent fashion is violative of a minimum standard of care and a danger to any community unfortunate enough to house such a place.
Yes Mr. Smith wants money. His life was forever changed that night and, despite the fact that the criminals were punished, that doesn't do anything to help him put the pieces back together. A jury may not like my client for going there and may feel as you do. If so, then it's going to be a difficult trial.

 

[flower]

Quote:
Originally Posted by crimzy http:///t/394134/you-be-the-jury#post_3507741
Flower, nothing that you mentioned happened. The previous post has the different explanations as to why they claim this happened. The assailants admitted that they spent the evening doing cocaine.
As to your second question, paragraph, I should have been more clear. The police reports, detective testimony, prior lawsuit, prior managers (3 of them) all speak of violence specifically perpetrated by this manager and not just general happenings at the bar.
Yes, civil liability means money. As to your question about hiring someone who does something bad, it is far more complicated than that. It depends on what the employee does, (if he is even considered an employee under the law) and whether he was acting in the scope of employment. But this issue is more than just the vicarious liability of the bar for the acts of an employee. As you and others mention, the owner did not assault this guy nor have knowledge that it was happening. The scrutiny is about their hiring practices and generally creating a dangerous environment where it was inevitable that people would be injured and/or killed. I will argue to the jury that a business being run in such a negligent fashion is violative of a minimum standard of care and a danger to any community unfortunate enough to house such a place.
Yes Mr. Smith wants money. His life was forever changed that night and, despite the fact that the criminals were punished, that doesn't do anything to help him put the pieces back together. A jury may not like my client for going there and may feel as you do. If so, then it's going to be a difficult trial.
Oh I see...examples...sorry.
I don't know a bit about Mr. Smith, and I can't imagine anything he could do to justify what the bad guys did. I'm sure the bad guys would say they were justified.....the only reason I said what I did is that it would be in my mind, as it did when I read your account...sitting in a jury, I would have the same thoughts.
How liable is an owner of a place that sells "lap dances", supposed to check out who he hires? Aside from a drug test, (and not all employers check, because they don't care), and making sure his workers don't rob him..,.,Wouldn't a tough guy be just what you want to hire to keep the "clients" in check to keep the girls safe? Strip clubs are of themselves a dangerous environment, for all involved, doesn't Mr. Smith have some liability for getting himself in such a situation, and being around people who are involved in that kind of shady business?
If a race car driver crashes his car, he knows he was doing something dangerous, I doubt Mr. Smith never had a clue that bad things happen in places like this strip club. He also knew the manager himself, and had done business with him...I bet he knew every person that had a hand in the torture that night. The manager didn't pick him out of the blue to torture...the two had a history with each other.... how is that the owners fault? In that case...Mr. Smith has some liability in what happened to him...he knew those people.
On the other hand, if he wasn't an innocent patron visiting the establishment, and he was part of the business himself...you said he did work in the past for Mr. Manager...he came to square up for pay from a job he did...so was he an employee of the owner, or the manager? That may make the case a little different. If Mr Smith came to get his pay for work he did for the owner, then the owner would be completely liable...all the damage was done by a fellow employee... did Mr Smith complain about Mr Manager to the boss? If so, that would show the boss knew something was going on.

 

[crimzy]

Quote:
Originally Posted by Flower http:///t/394134/you-be-the-jury#post_3507746
Oh I see...examples...sorry.
I don't know a bit about Mr. Smith, and I can't imagine anything he could do to justify what the bad guys did. I'm sure the bad guys would say they were justified.....the only reason I said what I did is that it would be in my mind, as it did when I read your account...sitting in a jury, I would have the same thoughts.
How liable is an owner of a place that sells "lap dances", supposed to check out who he hires? Aside from a drug test, (and not all employers check, because they don't care), and making sure his workers don't rob him..,.,Wouldn't a tough guy be just what you want to hire to keep the "clients" in check to keep the girls safe? Strip clubs are of themselves a dangerous environment, for all involved, doesn't Mr. Smith have some liability for getting himself in such a situation, and being around people who are involved in that kind of shady business?
If a race car driver crashes his car, he knows he was doing something dangerous, I doubt Mr. Smith never had a clue that bad things happen in places like this strip club. He also knew the manager himself, and had done business with him...I bet he knew every person that had a hand in the torture that night. The manager didn't pick him out of the blue to torture...the two had a history with each other.... how is that the owners fault? In that case...Mr. Smith has some liability in what happened to him...he knew those people.
On the other hand, if he wasn't an innocent patron visiting the establishment, and he was part of the business himself...you said he did work in the past for Mr. Manager...he came to square up for pay from a job he did...so was he an employee of the owner, or the manager? That may make the case a little different. If Mr Smith came to get his pay for work he did for the owner, then the owner would be completely liable...all the damage was done by a fellow employee... did Mr Smith complain about Mr Manager to the boss? If so, that would show the boss knew something was going on.
Flower, don't you think that a business owner has a responsibility to the local public to take some action to hire, supervise and/or maintain an appropriate staff in the business?... regardless of what type of business he's in. This is much broader than the duty that this business owed to Mr. Smith, but what about the neighbors, and their children who may live in and around the community. Are you suggesting that you have no problem with someone hiring people he knows to be dangerous? Because the evidence here is clear that he knew about the violence of this individual from several different sources.
You're sentiments about Mr. Smith may be echoed by the jury. Did his actions in going to this place in the middle of the night amount to negligence on his part? It's possible and, if so, that amount of fault would be allocated to him and any damages would be reduced by his percentage of fault.
It will be interesting to see how this plays out. I have a very good judge, and am in Detroit (which tends to lean more towards Plaintiffs than other areas). But the case isn't perfect and if it went up to the court of appeals, they may not like this type of case.
Also, as an aside, the bar has filed its own motion to dismiss this case claiming that they should have no liability. I filed a brilliant response of course

, and the motion will be heard next Friday. It's possible, although I think unlikely, that the judge could kick the whole thing next week.

 

[reefraff]

If you client knew what a sleaz pit the place was and got involved anyway that would raise some questions in my mind. Not sure it would be enough to somehow say he had it coming but poor judgement for sure.

 

[crimzy]

Interesting sentiment...this is helpful. A couple concerns about my client dealing with a place like this... Ie. You lie with dogs, you may get fleas.
In front of a jury I may want to emphasize that my client is a single dad with financial struggles. If the jury hears that, it may be more understandable that he'd go there at 3am to pick up money... Or even explain why he dealt with this place at all. If we set forth the image of a struggling father that needed to keep a roof over his head then maybe the jury doesn't blame him as much. I may start his testimony with those facts and get to the injuries after...

 

[2quills]

If you don't have a direct connect between the owner and the perpetration of the crime itself other than the fact that he's a poor business man then it seems like a tough sell to me (if I were on the jury). That doesn't mean that I think that he should just walk away unscathed.
But the history between your client and the manager suggests that this could have easily happened elsewhere and that it was just a matter of time before they got him.