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California Verdicts

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Plaintiff claimed security saw assault, but failed to intervene

Amount:

$6,500,000

Type:

Verdict-Plaintiff

State:

California

Venue:

San Diego County

Court:

Superior Court of San Diego County, San Diego

Injury Type(s):

eye; sensory/speech-blindness, one eye

Case Type:

Intentional Torts - Assault; Premises Liability - Restaurant; Worker/Workplace Negligence - Negligent Security; Premises Liability - Inadequate or Negligent Security

Case Name:

Lisa Lopez v. Here We Go, Inc. dba Rich's San Diego; XL Staffing Inc.; and Sandra Elizabeth Beyl, No. 37-2013-00080607-CU-PO-CTL

Date:

August 1, 2017

Parties

Plaintiff(s):

Lisa Lopez (Female, 42 Years)

Plaintiff Attorney(s):

Nicholas C. Rowley; Carpenter, Zuckerman & Rowley, LLP; Beverly Hills, CA, for Lisa Lopez ■ Haytham Faraj; Carpenter, Zuckerman & Rowley, LLP; Beverly Hills, CA, for Lisa Lopez ■ Theresa Bowen Hatch; Bowen Hatch Law, PC; Carlsbad, CA, for Lisa Lopez

Plaintiff Expert(s):

Mark Smith; M.D.; Ophthalmology; San Diego, CA called by: Nicholas C. Rowley, Haytham Faraj, Theresa Bowen Hatch ■ Robert Smith; Restaurants & Bars; San Diego, CA called by: Nicholas C. Rowley, Haytham Faraj, Theresa Bowen Hatch

Defendant(s):

Here We Go, Inc., 

XL Staffing Inc., 

Sandra Elizabeth Beyl

Defense Attorney(s):

Peter L. Garchie; Lewis Brisbois Bisgaard & Smith LLP; San Diego, CA, for XL Staffing Inc. ■ Keith J. Bruno; BRUNO | NALU; Newport Beach, CA, for Sandra Elizabeth Beyl ■ Mary K. Wyman; Lewis Brisbois Bisgaard & Smith LLP; San Diego, CA, for XL Staffing Inc. ■ Jamie L. Keeton; Schlichter & Shonack, LLP; El Segundo, CA, for Here We Go, Inc. ■ William A. Percy; Schlichter & Shonack, LLP; El Segundo, CA, for Here We Go, Inc.

Defendant Expert(s):

Alan Shabo; Ophthalmology; Los Angeles, CA called by: Jamie L. Keeton, William A. Percy ■ Darryl Thibault; Security/Premises Liability; San Diego, CA called by: Jamie L. Keeton, William A. Percy ■ Robert Gardner; Security/Premises Liability; Santa Paula, CA called by: Peter L. Garchie, Mary K. Wyman

Insurer(s):

Kinsale Insurance Co. for Here We Go, Inc. ($1,000,000 policy limit); Zurich North America for XL Staffing Inc. ($1,000,000 policy limit)

Facts:

On Dec. 21, 2012, plaintiff Lisa Lopez, 41, an insurance salesperson, was a patron at Rich's San Diego, the largest and most popular gay nightclub in San Diego. Lopez went to the club with her friends, including a male friend who was meeting Sandra Beyl, who was in a relationship with the male friend. At around 12:20 a.m., Beyl began yelling, waving her arms, and making aggressive gestures towards Lopez's friend. The verbal assault escalated to a physical assault when Beyl began to slap Lopez's friend's face, neck, shoulders and arms. She also grabbed his face and clawed her nails down it. The escalating assault lasted for five to 10 minutes. Although Lopez knew Beyl and her friend were arguing, she did not see the physical violence. As a result, Lopez approached Beyl and her friend to calm the parties down, but Beyl smashed a beer bottle over Lopez's head, injuring her forehead and right eye. Beyl pleaded guilty in criminal court, waiving her right to a criminal jury trial, and took full responsibility for her actions and the consequences to Lopez. Beyl served two years in prison. Prior to that, Beyl had no criminal record and never even had a traffic ticket. Lopez sued Beyl; the owner and operator of Rich's San Diego, Here We Go Inc.; and the security company for the club, XL Staffing Inc. Plaintiff's counsel contended that Beyl's initial attack of Lopez's friend occurred in front of two bartenders, who watched the assault, laughed at the domestic violence, and did nothing. Counsel also contended that at least two security guards saw the assault and did nothing, and that other witnesses in the bar also saw Beyl assaulting Lopez's friend. Plaintiff's counsel argued that the bar had a "very poor" security practice, according to the defense's own expert, of having bartenders use their personal cell phones to call the bar manager when the bartenders saw something brewing. Plaintiff's counsel contended that Here We Go Inc. had an entertainment permit from the city that allowed it to have live music and dancing, but the permit required the bar to hire security to patrol and alleviate police problems. However, counsel argued that the bar never told security that the permit existed or that there were rules that had to be followed. The plaintiff's security expert opined that bartenders should not use their personal cell phones to call a bar manager if an assault is happening. The expert added that if there is a verbal or physical assault in a bar, security has to make a verbal intervention, at a minimum. Beyl acknowledged that she was out of control and that she scratched, pushed, slapped and argued with Lopez's friend while security and the bar staff did nothing. She also acknowledged that when Lopez approached her, she was doing nothing to instigate a fight or otherwise cause an escalation in the fracas. Beyl further admitted that she meant to assault Lopez, but claimed that she did not mean for the resulting injury to occur. She also claimed that she was drunk when she arrived at the club and that she continued to be served more alcohol at the club. At the civil trial, Beyl continued to accept responsibility for her actions, telling the jury from selection to close that she committed the assault, without excuse, and would accept the jury verdict. With that, Beyl authorized her defense counsel to "prosecute" a case of apportionment against the other two defendants, the club and the security company, who had accepted no responsibility and encouraged 100 percent civil apportionment against Beyl. Beyl's counsel noted that Beyl apologized to Lopez after the subject incidents and paid for her actions in the criminal system. Counsel also argued that the security company, XL Staffing, was negligent because the guards failed to intervene, even when they observed Beyl committing a felony assault against Lopez's friend, and failed to take any action to stop Beyl's violent conduct. Counsel further argued that Beyl would have never assaulted Lopez if the club or security had intervened. Defense counsel for Here We Go Inc. claimed that no one working for the club saw any physical altercation and that it had hired the security company, XL Staffing, to provide security at the bar. Here We Go's security expert testified that the bar's duty was to hire security, not to intervene in any conflicts, even if a bartender saw it, which he believed they did not. Defense counsel for XL Staffing argued that the events were "unpreventable."

Injury:

Lopez sustained injuries to her forehead and her right eye. She was immediately taken to a hospital by her friend, where Lopez underwent two surgeries to save the eye. Neither the bar nor security called an ambulance or reported the incident to the police. Thus, the hospital made the first report of the incident of an assault with a deadly weapon to the police and it notified them that Lopez is legally blind in her right eye. Lopez claimed that she is unable to see anything more than a thick, dense, gray fog out of her right eye. She alleged that as a result, her life and her vision have been greatly impacted. The plaintiff's ophthalmology expert opined that Lopez suffered a very serious injury and that the goal was to save the eye, which was accomplished. The expert opined that Lopez is legally blind in the injured eye and always will be. The expert noted that Lopez is legally blind in her "good" eye without contacts, so the "bad" eye needs to be saved as a spare tire. The ophthalmology further opined that there is nothing more that can be done now for the bad eye without a high risk of infection, risk of the retina re-detaching and risk of losing the eye completely. The defense's ophthalmology expert, who is a retina specialist, opined that Lopez can have a corneal transplant surgery to repair the eye and that such surgery has an 80 percent success rate. He further testified that such surgery would return Lopez's eye to 20/200 vision, which is what it was prior to the incident.

Result:

The jury apportioned 15 percent responsibility to Beyl, 35 percent responsibility to Here We Go Inc., and 50 percent responsibility to XL Staffing. It also determined that Lopez's damages totaled $6.5 million.

Lisa Lopez: $2,500,000 Personal Injury: past non-economic damages; $4,000,000 Personal Injury: future non-economic damages

Trial Information:

Judge:

Katherine A. Bacal

Demand:

$750,000 each to XL Staffing Inc. and Here We Go, Inc.

Offer:

$400,000 from XL Staffing Inc.; $75,000 from Here We Go Inc.

Trial Length:

11  days

Post Trial:

Both of the defendants' insurers' policies were opened. Thus, Lopez should recover $7.1 million, as she beat the defense's C.C.P. 998 ยง offers.

Editor's Comment:

This report is based on information that was provided by plaintiff's counsel, and defense counsel for Beyl and Here We Go Inc. Defense counsel for XL Staffing Inc. did not respond to the reporter's phone calls.