Restaurant Customer Wins $16M Verdict in Slip and Fall Case

Case Overview

Case Name: William Kidd and Elaine Kidd v. WKS Restaurant Corporation dba El Pollo Loco

Case Type:

• Slip and Fall
• Premises Liability – Negligence

Injury:

• Brain damage
• Traumatic brain injury
• Subdural hematoma
• Cognitive impairment
• Headaches
• Torn quadriceps
• Knee

Plaintiff Attorneys:

• John H. Gomez; Gomez Trial Attorneys
• Matthew J. Faulkner; Faulkner Law Offices

Defense Attorneys:

• Esther P. Holm; Lewis Brisbois Bisgaard & Smith LLP
• Christina M. Guerin; Lewis Brisbois Bisgaard & Smith LLP

Case Outcome: Verdict – Plaintiff

Award Amount: $16,232,416.23

What Happened?

On the evening of September 6, 2012, William Kidd (age 62) slipped and fell on the floor as he was leaving the bathroom of an El Pollo Loco restaurant in Bakersfield. Kidd slammed his head against the ground and injured his right knee. He claimed that he stepped on a slippery patch that was left by the cook, who was wearing wet boots. Kidd claimed that the cook was in the middle of cleaning the restaurant’s kitchen at the time of his fall.

Kidd was immediately transported to a hospital where it was discovered that he had torn the quadriceps tendon of his right knee. A CT scan was conducted, which didn’t indicate any head injury but did show a pre-existing atrophy of the brain. Months later, Kidd was diagnosed with a subdural hematoma that required surgery.

The Lawsuit’s Allegations and Trial Testimony

Mr. Kidd and his wife, Elaine Kidd, filed a lawsuit against the WKS Restaurant Corp., the operator of the El Pollo Loco where he sustained the fall. The plaintiffs alleged that the defendant was negligent in that workers were cleaning the grills at and around the time of Mr. Kidd’s fall, which resulted in the slippery substances on the floor. The plaintiffs further alleged that cleaning kitchen grills can take as long as two to three hours. However, the defendant only scheduled workers one hour after closing to do this job. As a result, workers began cleaning while the restaurant still had customers present. The plaintiffs alleged that cleaning the restaurant prior to its closing was negligent as the dining area was exposed to slippery substances such as cleaning materials.

As to injuries, the plaintiffs alleged that Mr. Kidd suffers from permanent headaches, short-term memory issues, and brain damage. The plaintiffs also claim that Mr. Kidd has an increased likelihood of dementia due to the fall. Mr. Kidd claimed that he could no longer work full-time in his profession as an insurance agent. As a result, Elaine Kidd sought recovery for the loss of consortium.

The plaintiffs’ counsel had an investigator film and observe the restaurant staff as they cleaned. The attorneys contended that a former employee confirmed that the practice of cleaning before the restaurant closes is still occurring.

Defense Arguments

Defense counsel countered the plaintiffs’ arguments as to the condition of the floor. The defendants noted that Mr. Kidd previously admitted that the floor was clean on his way into the restroom. Defense counsel further noted Mr. Kidd’s prior inconsistent statements. Mr. Kidd first claimed that he slipped on a puddle of water flowing from the kitchen. However, he then claimed he slipped on a wet footprint that an employee tracked onto the floor during the time that he was using the restroom. The defendant maintained that at all pertinent times, the restaurant’s cook was cooking on the grill and that no dangerous condition existed on the floor.

Defense counsel further countered that Mr. Kidd slipped and fell due to an imbalance caused by alcohol intoxication as well as an atrial fibrillation episode, which was documented by emergency personnel. Defense counsel supported its position by presenting the testimony of a toxicology expert. The expert had testified that Mr. Kidd’s blood alcohol level was 0.1025 at the time of the incident. Interestingly, the plaintiffs’ own toxicology expert found Mr. Kidd’s blood alcohol level to be within a range of 0.07 and 0.145. In addition, defense counsel argued that Mr. Kidd’s current cognitive issues and headaches were the results of pre-existing medical conditions, such as degenerative white matter microvascular disease, cataracts, and other eye-related issues. Nevertheless, defense counsel challenged Mr. Kidd’s inability to work, noting that he maintained his employment as an insurance agent.

Who Won the Slip and Fall Case?

After a 14-day trial, the jury found in favor of the plaintiffs, finding that the defendant acted negligently. The jury awarded damages totaling $16,232,416.83.

The award broke out as follows:

Elaine Kidd:

• $3,000,000 for loss of consortium

William Kidd:

• $177,417 for past medical costs
• $55,000 for future medical costs
• $5,500,000 for past pain and suffering
• $7,500,000 for future pain and suffering

The verdict was not unanimous. Rather, there was an 11-1 vote on liability and a 10-2 vote for the damages award.

Expert Specialties

The plaintiffs retained expert witnesses in

• Retail Safety
• Orthopedic Surgery
• Neuropsychology
• Neuroradiology
• Toxicology
• Endocrinology
• Neurology
• Speech Pathology
• Neurosurgery
• Neuro-ophthalmology

The defendant retained expert witnesses in

• Neuro-ophthalmology
• Toxicology
• Neurosurgery
• Safety
• Pharmacology

Key Takeaways

Mr. Kidd’s case is a prime example of the importance of expert testimony when arguing whether a pre-existing medical condition contributed to the present injury. As Mr. Kidd did suffer from pre-existing medical issues, it could have been possible for the jury to conclude his injuries were simply the result of his medical conditions. However, the expert testimony helped better explain his conditions, how they did (or did not) relate to the present injury, and how his fall was the proximate cause of his current state.

For attorneys on both sides, this case is an important reminder that the fact that a plaintiff may have pre-existing conditions does not mean that the verdict is a foregone conclusion. Instead, with the help of expert testimony, plaintiffs can, in fact, prove how their injuries are not the result of their pre-existing conditions.