Outback Steakhouse Denied New Trial After $2.75 Million Verdict

What Happened?

On October 18, 2018, Plaintiff Deborah Nagy (age 63 at the time) was dining at an Outback Steakhouse located in Green Brook, New Jersey with her husband and two friends. When she left the table to go to the restroom, she slipped and fell on a greasy substance outside the restaurant’s kitchen. Mrs. Nagy remained on the floor until paramedics arrived and she was then transported to a hospital via ambulance. She suffered a hip fracture in multiple places and underwent surgery the following day. She remained in the hospital for another three days and was then transferred to an inpatient rehabilitation facility where she remained for another five days. Mrs. Nagy subsequently developed arthritis in her left hip and was recommended to undergo a total hip replacement.

Mrs. Nagy and her husband filed a lawsuit against Outback on January 21, 2019, in New Jersey state court, but Outback removed the action to federal court in New Jersey -- Deborah Nagy and Roger Nagy v. Outback Steakhouse of Florida LLC, 19-CV-18277. The lawsuit alleged that Outback created a hazardous condition which resulted in Mrs. Nagy’s permanent injuries.

The Pre-Trial Rulings

According to the plaintiffs’ proposed liability expert, an engineer who specializes in walkway safety auditing, slip resistance testing of hard surface flooring, construction testing, and forensic engineering and who inspected Outback’s property, the installed flooring appeared “visibly dirty” and “was visibly greasy and slippery despite being dry.” The expert observed that the “floors had not been cleaned in days as the trap at the bottom of the floor drain was dry allowing sewer gas to infiltrate the space.” The expert conducted slip resistance testing on the flooring and found it failed to meet the standard of care in the industry, which was exacerbated by the greasy substance noted on the floor by several witnesses that day. However, prior to trial, the court excluded the expert’s proposed testimony on the basis that the inspection, which was conducted the following July after the incident, was not relevant to establishing the condition of the floor at the time of the slip and fall.

Prior to trial, the court granted the plaintiffs’ spoilation motion, finding that Outback acted with intent to deprive the plaintiffs of relevant surveillance footage when the company only preserved five minutes of footage prior to the fall and selectively preserved footage after the incident. Based on the defendant’s actions, the court found that plaintiffs were entitled to an adverse inference jury instruction.

Despite previously being warned by the court not to “sandbag” plaintiffs, Outback filed a letter four days prior to trial indicating that they would stipulate to liability. However, the court ruled that, notwithstanding the stipulation, plaintiffs were still entitled to present a full narrative of the incident, including evidence that the plaintiff slipped on a greasy substance.

The Trial

After failing to reach a settlement, the parties proceeded to trial, with Outback Steakhouse being represented by Norman W. Briggs of Briggs Law Office LLC and the plaintiffs represented by Alex S. Capozzi of Brach Eichler LLC. At trial, Outback stipulated that they were negligent and their negligence caused the incident and injuries. Per the court’s ruling, plaintiffs presented evidence of Outback’s negligence. Plaintiffs also presented testimony from a medical expert and were permitted to present previously excluded portions of prior testimony of the defendant’s medical expert. 

After a three-and-a-half day trial, the jury awarded Mrs. Nagy $2.5 million in damages for pain and suffering, disability and impairment, and loss of enjoyment of life and awarded her husband $250,000 for loss of consortium.

The Motion for a New Trial

Outback filed a motion for a new trial on numerous bases, including that the court erred by granting plaintiffs’ spoilation motion; by permitting plaintiffs to present previously excluded defense expert testimony as well as presenting evidence from their own medical expert concerning a follow-up visit that was not previously disclosed; by allowing plaintiffs to present evidence pertaining to liability; by precluding the defendant from arguing plaintiffs’ counsel referred Mrs. Nagy to plaintiffs’ medical expert; and by failing to provide a curative instruction to address a comment made by plaintiffs’ counsel during closing arguments. Outback also argued that the verdict was excessive.

U.S. District Judge Robert Kirsch denied the motion in its entirety, first finding that the defendant failed to timely object to or otherwise appeal the magistrate court’s spoilation ruling. The court also found that the defendant failed to timely file their motion for rulings regarding its expert’s previous testimony, thus, plaintiffs were allowed to reference the defense expert’s prior testimony (with the court also finding that Outback could have simply not presented the expert's testimony at trial if it did not want the jury to hear it). The court likewise found that the exclusion of evidence pertaining to Mrs. Nagy’s follow-up office visit with her medical expert was not warranted, noting that the defendant was given an opportunity to review the treatment record. The court also held that there was nothing wrong with Mrs. Nagy being referred to the physician by her lawyer.

The court also affirmed its previous holding that the plaintiffs were entitled to present testimony regarding the condition of Outback’s floor, despite the stipulation to liability. Lastly, in the plaintiffs’ closing arguments, the counsel noted the prevalence of “an eye for an eye” in some countries, stating that the plaintiff would break the defendant’s hips if given the chance. Although Judge Kirsch agreed the comment was improper, he found that it did not warrant a new trial because it was an isolated incident, and a curative instruction was immediately provided to the jury at the time. The court also declined the argument that the verdict was excessive.

In light of the court’s ruling, the verdict against Outback remains. As counsel for the parties did not comment on the ruling, it is not yet known whether Outback will appeal.