Being proactive in a reactive world

Brian Rawson and Tyler Stuart, attorneys and partners with the Hartline Barger Law Firm, focused the EXPO 2022 Legal Panel on being proactive in avoiding lawsuits in today’s increasingly litigious world.

Rawson focuses his practice on general litigation, including personal injury cases involving catastrophic injuries in a full spectrum of areas, from Dram Shop cases to complex product liability matters. His other practice areas include business and commercial litigation, labor and employment claims, premise liability, toxic torts, hospitality litigation, healthcare, and medical malpractice. Stuart’s practice focuses on commercial litigation, product liability, personal injury, defense contracts, warranty fraud, and deceptive trade practices.

In the legal world, failing to be proactive can lead to dire results. Earlier this year in Dallas, a jury considered whether to impose liability on Charter Spectrum for its off-duty cable installer’s murder of an 83-year-old woman. Wearing nothing but his Spectrum shirt, that installer entered the woman’s home and stabbed her to death. After deliberating, the jury returned a $7.35 billion verdict and found that, although he was off of the clock, Charter Spectrum was 90% responsible.

“For those assuming their insurance companies should worry about such judgments, Charter Spectrum only had $300 million in coverage and, with a $7 billion verdict, is currently having awkward reactive — not proactive — conversations with appellate lawyers and bonding companies,” said Rawson.

During their presentation, Rawson and Stuart explained how such verdicts could be avoided through proactive measures for certain situations.

Dram Shop
A Dram Shop lawsuit results when an individual sues an establishment for allegedly over-serving a patron. Because of his intoxication, that patron could then hurt himself or, in the worst case, cause a motor vehicle accident killing an innocent driver whose family then sues the establishment.

State Dram Shop laws vary across the US, and it’s essential to understand your state’s standard. For example, Texas Dram Shop law holds an alcohol provider liable for damages if it served alcohol to an individual when it was apparent to the provider the individual was obviously intoxicated to the extent that he presented a clear danger to himself and others. In Texas, the key is whether or not the individual showed signs of intoxication when served. Evidence like the receipt showing the number of drinks served or surveillance footage of the individual is important in making that determination. But, typically, the Dram Shop lawsuit comes down to how the provider’s employees, particularly the employee that served, perform during depositions.

“It is crucial to prep employees before depositions,” said Rawson. “They may be 18, with somebody recording or transcribing every word they say, and they’re scared to death.”

During depositions, plaintiffs’ attorneys employ tactics to try and get damning admissions from employees. One such tactic is twisting the definition of obviously intoxicated to legally intoxicated. While obviously intoxicated focuses on the signs of intoxication shown by the patron, legal intoxication occur when the individual’s blood alcohol content (BAC) passes the legal limit to drive in the state. During depositions, plaintiffs’ attorneys show drink charts, which uses a patron’s gender and weight to calculate the BAC for each drink served, then ask the employees to calculate the patron’s BAC by counting the number of drinks consumed.

Employees must be prepared to handle these charts and the misleading questions. The chart is a tool, not a standard, and it never replaces observations at the time of service.

“Plaintiff’s attorneys try to create strict liability through employing this chart. But, I counter, would a police officer who was there at the time have arrested that person for public intoxication? That’s the level of intoxication that we believe must be proved to win a dram shot case,” said Rawson.

Being proactive in establishing policies and procedures for responsible alcohol service at the establishment could avoid the lawsuit altogether. Rawson highly recommends written alcohol policies signed by all employees and pre-shift staff meetings where responsible alcohol service is discussed. The employees should be taught to be alert for patrons showing signs of intoxication, and if any signs are seen, to cut off that patron and alert all other employees, including third-party security, so that patron cannot be served elsewhere in the establishment. That patron should be monitored, provided food and water, and given a safe ride home. If the patron insists on driving, take his keys. Call the police if necessary.

“We’ve had favorable results with clients that have done all this,” explained Rawson.

“It is crucial to prep employees before depositions. … They may be 18, with somebody recording or transcribing every word they say, and they’re scared to death.” — Brian Rawson

Premises Liability
The presentation then shifted to premises liability claims, focusing on slip-and-fall or trip-and-fall claims. There is an allegedly dangerous condition in an establishment (typically water on the floor) that causes a patron to slip or trip resulting in injuries and an eventual lawsuit. Each state’s laws differ for these claims (consult your local attorney). Still, typically, an establishment is obligated to ensure its premises are safe or to warn of a known hazard.

Avoiding these types of claims involves the establishment employing proactive measures. Staff must routinely monitor premises for potential hazards. Put signs and barriers around a hazard to warn of spills and immediately clean them up. This protects patrons and protects the establishment from liability if the condition injures someone. For Stuart described one of his cases in Corpus Christi, Texas, where a patron sued for falling off a step while walking into a restaurant and sustaining injuries. Thankfully for his client, the restaurant employed proactive measures. Right above the step, the restaurant had signage that stated in bold capital letters, “PLEASE WATCH YOUR STEP!” Based on that signage warning the patron, the lawsuit was dismissed.

If an injury does occur, ask if the individual is injured and offer assistance if requested. And, remember, document the incident through an incident report! If there were warning signs around spilled water that caused the patron’s slip-and-fall, note that in the report. In lawsuits, plaintiffs’ attorneys will argue that the signs were not there if not written in the incident report.

Fraud/Unauthorized Credit Card Use
Next, Stuart explained potential issues with fraud and unauthorized credit card use. This occurs when a patron spends a lot of money on a credit card at a club but then comes back later, complaining that his card was stolen or the club ran up a bunch of money that he didn’t authorize. How do you protect yourself in these situations? By being proactive. Ensure that the patron is fully aware of the specifics of the transactions. Have the patron sign separate documentation specifically describing the transaction. And go beyond signatures! Record the patron’s fingerprint or have the patron sign under a surveillance camera. Some clubs even have the patron sign on an iPad, which records the patron’s signature through its camera.

Police Investigation
Stuart then provided important pointers on dealing with police investigations.

“If the police show up at a club to investigate an incident, don’t try to handle it yourself; direct them to upper management or the club attorney,” Stuart said. “Assume you were being recorded when speaking to officers; be careful what you said, don’t volunteer any information or evidence. The attorney can meet with those employees in advance of police, help them anticipate what questions will be asked, and attend these meetings with law enforcement to help prevent potential legal issues. It’s nerve-wracking to be in there without someone familiar with the process.”

Deposition Tips
Stuart concluded the presentation by discussing deposition tips. A deposition is a process by which an attorney takes a witness’s sworn, out-of-court oral testimony — a court reporter types out the testimony, which may be videotaped. The person is under oath and could be punished for perjury and false testimonies provided. Depositions are a key part of the lawsuit process, so witnesses must be prepped on how to handle depositions.

Stuart provided some tips to handle the deposition process:

1) Tell the truth, don’t lie.
2) Don’t guess or speculate.
3) Only speak when asked a question.
4) Only answer the question you’re asked.
5) After answering the question, stop talking. If you fill the silence with words, you only help the questioning attorney.
6) Don’t offer unnecessary details or over-explain.
7) Listen to the entire question, and make sure you understand it before answering. If you don’t understand, ask the questioning attorney to repeat or rephrase it.
8) Keep your answers short — only answer yes or no questions with yes or no.
9) Don’t get angry or argumentative. Depositions will be stressful; don’t let emotions get involved. Let the attorney defending you get in arguments; that’s what they are there to do.
10) You will likely be videotaped during the deposition, and that video will likely be played for the jury. So, don’t joke or become overly sarcastic; that can be interpreted as disrespectful. Also, your facial expressions and body language during a deposition reveal more than you think. If the jurors aren’t listening to what you’re saying, they’re watching what you’re doing. If you look like you’re lying, the jurors will know it.

For more information, contact Brian Rawson at (214) 346-3727 or at brawson@hartlinebarger.com; contact Tyler Stuart at (214) 346-3733) or at tstuart@hartlinebarger.com. Contact Larry Kaplan at (313) 815-3311 or at larry@kaplanclubsales.com.