You be the jury...

[crimzy]

Quote:
Originally Posted by TheClemsonKid http:///t/394134/you-be-the-jury/20#post_3508315
If I were a jury member, from what you have stated... I would feel fairly confident in saying that yes, the guy had enough prior violent incidents, that the owner should have known better than to keep him. I think you should win this one pretty easily...
Why thank you.
Bear in mind though that liability is only step 1. First the jury will have to allocate a percentage of fault to the 4 assailants, the bar, and possibly even some amount to my client. Then they have to provide a total damage award, which is split among each parties pro rata share of fault. I think that I will be able to prove the elements of negligence. But the real issue will be getting a number high enough, and a percentage of fault for the bar that is high enough, for my client to get paid a nice chunk.
I'll keep this updated as things progress. The bar has a motion to dismiss up for this Friday. That's my next hurdle...

 

[beth]

I can't see where your client has any blame. It wasn't a bar fight where he was drunk and contributing to the trouble.

 

[acrylic51]

I would vote in favor of your client.....The bar owner regardless IMO is responsible for "his" employees actions while on duty regardless if he was aware or unaware of "their" intentions....I'm quite sure he was to some degree involved....

 

[crimzy]

Ok, as much as I'm not excited to share this post, i have an unfortunate update for this case. The judge heard argument and granted defendant's motion to dismiss. Her reasoning was that she considered the manager to be an independent contractor as opposed to an employee so there is no vicarious liability, (a doctrine where the e/er can be responsible for the acts of e/ee if committed in the scope of employment).
I believe that the judge erred in this decision as she ignored the direct misconduct of the bar. The client and i are negotiating over whether I'll file an appeal for him.
It's a tough pill to swallow because my client's entire life was changed, not to mention that I put hundreds of hours and thousands of dollars into the case. Anyway, i felt like i should update the thread...

 

[beth]

That is too bad. I think it should have gone to trail.
How does the independent contractor idea come in?
Can you tax deduct your loss?

 

[crimzy]

That is too bad.  I think it should have gone to trail.
How does the independent contractor idea come in?
Can you tax deduct your loss?
The independent contractor issue came into play because the firm who filed the original complaint claimed that the bar was responsible for the intentional torts of assault and battery, false imprisonment and intentional infliction of emotional distress against the assailants, (in addition to its own negligence). The intentional tort theories were basically useless anyway because even if we got a verdict for those claims, the insurance company would not have been obligated to cover those losses.
If i don't get reimbursed by the client, (which I'm not), then the costs are deductible.

 

[beth]

I guess you need to find some solid precedence to warrant risking more time and money on an appeal.

 

[reefraff]

That sucks. So in this "judge's" mind if I hire an incompetent employee and 1099 them I am not liable for their actions? Even if you will the appeal you probably will still have the insurance co use it as an out. I think I'd cut my loses and walk away.

 

[flower]

Okay, do I understand this right?... The reason the owner wasn't responsible was because the manager didn't do the harm he did to the poor man, as a part of his work responsibilities. If he was on the clock during work hours it might have been a different outcome in the Judges eyes. Just being on the property, and being a hired person by said owner, didn't make him liable....
Sorry the case didn't even make it to trial, I think it should have at least been heard out by a jury. I never understood the "not applicable evidence" thing either....stuff like if an accused rapist that has been brought up on the same charges more than 2Xs for the same thing but found innocent each time, so no mention of those charges can be made to the jury....there has to be a reason he keeps getting such a charge...Oh well, I guess I just don't understand the law.... common sense doesn't apply in court I guess.

 

[ironeagle2006]

Crimzy start to look at what the Federal Courts are doing in the OTR Industry even thought Owner Ops and Lease Operators are classified as Independent Contractors by their Carriers the Carriers have been ruled RESPONSIBLE for these peoples actions since even though they are considered I/C's by the IRS however they receive their Directions from their Employer the Carrier. Might be Something to Consider for you if you appeal. I know that CR England got hammered for their Policies among others. IIRC Prime Inc. lost their Shirts for this also.

 

[crimzy]

Quote:
Originally Posted by ironeagle2006 http:///t/394134/you-be-the-jury/40#post_3509909
Crimzy start to look at what the Federal Courts are doing in the OTR Industry even thought Owner Ops and Lease Operators are classified as Independent Contractors by their Carriers the Carriers have been ruled RESPONSIBLE for these peoples actions since even though they are considered I/C's by the IRS however they receive their Directions from their Employer the Carrier. Might be Something to Consider for you if you appeal. I know that CR England got hammered for their Policies among others. IIRC Prime Inc. lost their Shirts for this also.
Will do... thanks.