On May 28, 2016, the Minor Plaintiffs and their parents went for breakfast at the Omni La Costa Resort in Carlsbad, California. The DeRuyver Plaintiffs claimed that an Omni employee placed a carafe of ...hot coffee directly in front of H.D, nine-month-old. H.D. reached for the pot and the ensuing spill severely burned her hand, torso, and legs. As a result of perceiving this event, H.D.'s family claimed serious emotional distress.
The matter came for trial on March 11, 2019. On March 19, 2019, the jury reached a unanimous verdict and awarded H.D. $5,601,494.72 for past and future pain and suffering and past and future medical expenses. The jury also awarded H.D.'s family damages for past and future emotional distress and future medical expense as follows: Robyn DeRuyver $401,000, Christopher DeRuyver $251,000, N.D. $126,000, Z.D. $101,000.
On June 28, 2019, Defendant Omni filed a Notice of Appeal to the Ninth Circuit. (Doc. 154.) The parties engaged in post-trial settlement negotiations. On November 6, 2019, the parties reached an agreement to settle the matter for a gross settlement amount of $5,819,605.17 as to the five plaintiffs. Since there are minors involved in the settlement, the Court is required to do an approval of each minor's compromise. Therefore, the Court addresses the recovery of each party since the apportionment of costs and attorneys' fees relates to the recovery of the minor plaintiffs.
Deruyver v. Omni La Costa Resort & Spa, LLC, Case No.: 3:17-cv-0516-H-AGS, 2 (S.D. Cal. Feb. 4, 2020)
Slip and fall accident
Kidd v. WKS Restaurant Corp
Feb 28, 2017
OUTCOME: Verdict $16,232,416.80
During the evening of Sept. 6, 2012, plaintiff William Kidd, 62, an insurance agent, visited an El Pollo Loco restaurant on Mt. Vernon Avenue, in Bakersfield, with his wife. As Kidd exited the bathroom..., he slipped and fell, slamming his head against the ground and injuring his right knee. Kidd sued the operator of El Pollo Loco, WKS Restaurant Corp. Kidd claimed that he stepped on a slippery patch that was left by the cook, who was cleaning the kitchen. He alleged that the cook was still wearing wet boots when the cook entered the dining area to wipe down tables. Plaintiff’s counsel contended that although cleaning grills in the kitchen can take as long as two to three hours, WKS Corp. only scheduled workers an hour after closing to do the job. Counsel also contended that workers were discouraged from working after that scheduled hour because the pay would dig into the general manager’s bonus, which is based on restaurant profits. Accordingly, plaintiff’s counsel contended that since they only had an hour to clean a job that would take double or triple the amount of time, shift managers, cooks and other staff started cleaning grills as early as two hours before closing. Counsel argued that cleaning while a restaurant is still open is negligent, as the dining area can be touched by cleaning materials, which include slippery substances. Thus, counsel argued that WKS Corp. was responsible for creating a slippery substance to exist on the floor, on which Kidd claimed he slipped. In addition, plaintiff’s counsel had an investigator film and observe the staff as they cleaned, and contended that a former employee of the restaurant confirmed that the practice of cleaning before closing was still occurring. Defense counsel noted that Kidd admitted that the floor was clean and dry on his way to the restroom, and that there was nothing on the floor at that time. Defense counsel also contended that Kidd changed his sworn testimony regarding the cause of his fall and his theory of liability during litigation by first claiming that he slipped on a puddle of water that flowed from the kitchen into the hallway and then, later, claiming that he slipped on a single footprint that an employee tracked out into the hallway in the one to two minutes that Kidd was in the restroom. Counsel further contended that the employee denied having left the kitchen during the relevant time period, and testified that he was still cooking chicken on the grill at the time Kidd claimed he was in the dining room. Thus, defense counsel denied the cost-cutting allegations that were raised by plaintiff’s counsel, and argued that there was no evidence that WKS Corp. caused a dangerous condition to exist on the floor, on the night of the incident, during the one to two minutes Kidd claimed he was in the restroom. Instead, counsel contended that Kidd slipped and fell due to an imbalance resulting from intoxication in combination with an episode of atrial fibrillation, which was a medical condition documented by emergency personnel on scene. The defense’s toxicology expert opined that Kidd‘s blood alcohol level was 0.1025 at the time of the incident. However, the plaintiff’s own toxicology expert opined that Kidd‘s blood alcohol level at the time of fall was between .07 and .145.
