ContactMessage BoardsLinks  Home  
Featured Chefs
Gourmet Articles
Environmental Kitchen
Cookbook Reviews
Recipe File
The Wine Guy
Career Center
Ask Your Career Question
Job Listings
Current Articles
Career Archives
Ask An Expert
Anatomy of a Personal Injury Lawsuit
career centeranatomy of a personal injury lawsuit

Restaurant managers do not want to operate their business in a way that will result in legal action being taken against them. In today's litigious society, even for a prudent operator, the threat of loss to the business because of lawsuits is very real. Some of the lawsuits that are filed are frivolous, while others raise serious issues. In either case, the effective restaurant manager must be aware of how lawsuits are filed, how they progress through the court system, and most importantly, the role the restaurant manager plays in the process.

Personal Injury
Much of your concern as a restaurant manager will focus on the potential for damages that result from personal injury. The reason for this is fairly straightforward. Restaurant managers provide guests with food and beverages and entertainment. Yet, the process of providing these goods and services can place a business in potential jeopardy. "Accidents can happen" may have been just a phrase in years gone by. Today's equivalent phrase may well be "Accidents can happen, and if they do, the affected parties may sue!"

Certainly it is best to manage your business in such a way as to avoid accidents. However, accidents and injuries will occur and there are many times when the responsibility for an accident is unclear. Consider the case of Rachel Martinez. Ms. Martinez, a guest of your restaurant one evening, goes out to her car to retrieve her purse. While she is in the parking lot, she is assaulted. She suffers physical harm, fear during the attack, and a lingering apprehension about being out after dark by herself. Listed below are just a few of the questions that could be raised in a case such as this:
1. Were the lights in the parking lot working well enough to minimize the chance that a guest would be assaulted?
2. Was management vigilant in eliminating potential hiding places for would be assailants?
3. Had the restaurant experienced similar incidents in the past, and if so, what precautions had been taken?

Notice that, in this example, there is not a clear-cut reason for believing the restaurant is in any way responsible for Rachel's injuries. It is important to remember, however, that the court system gives Rachel and her attorney the right to file a personal injury lawsuit in an effort to determine if, in fact, the restaurant was totally or partially responsible for the assault. In doing so, Rachel will seek damages resulting from the assault. Such a lawsuit will, without doubt, be time consuming for management, and expensive to defend against. The reality, however, is that such lawsuits are filed on a daily basis, and it is rare that restaurant managers do not find themselves involved, to some degree, in such a suit at some time in their career. For this reason, a manager needs to be familiar with the anatomy of a personal injury lawsuit from its inception to conclusion.

Demand Letter
Typically, a manager will learn that he, she, and/or the business is being sued when a demand letter is received. The demand letter comes from an attorney who has been contacted by the injured plaintiff and has agreed to take up the plaintiff's cause. As you can see in the example provided, the typical demand letter sets forth the plaintiff's version of the facts surrounding an alleged personal injury, and may also include the monetary amount of damages being sought and usually a deadline for the manager to respond to the charges.

Attorneys, generally, will accept a personal injury case with one of three payment plans. The first is the hourly fee, where the attorney bills their client (the plaintiff) at an hourly rate for each hour the attorney works on the personal injury claim. In this case, it is clearly in the best interest of the plaintiff to seek a conclusion to the case as quickly as possible to minimize attorney fees that must be paid. In a second type of plan, the attorney agrees to take the case for one flat fee. In this situation, it is clearly in the best interest of the attorney to seek a quick resolution of the case.

The third payment form is the contingency fee. Lawyers representing defendants charged with crimes may not charge contingency fees, and in most states, contingency fee agreements must be put in writing. Clearly, in a case where the attorney is representing the client on a contingency basis, it is in the best interest of the plaintiff and the attorney to seek the most favorable, rather than the fastest, settlement possible.

Regardless of the form of payment agreed upon between the plaintiff and their attorney, the demand letter is the first step in the litigation process. If the response to the demand letter does not satisfy the plaintiff, he or she will likely instruct their attorney to file suit against the defendant.

Filing a Petition
Filing a petition (or pleading or complaint) is the term used to describe the process of initiating a lawsuit. A petition is a document that officially requests a court's assistance in resolving a dispute. The petition will identify specifically the plaintiff and the defendant. In addition, it will describe the matter it wishes for the court to decide. Included in the complaint against the defendant will be the plaintiff's suggestion for resolution of the issue. The plaintiff may, for example, ask for monetary damages. When the petition has been filed with the administrative clerk of the court, the lawsuit officially begins.

Once the complaint is filed with the court, the court (and/or the plaintiff, through counsel) will notify the defendant of the plaintiff's charge, and will include a copy of the complaint in the notification. Upon receipt of the complaint the defendant needs to respond in writing within the time specified in the notice from the court.

In the discovery phase of a civil lawsuit, both parties seek to learn the facts necessary to best support their position. This can include answering questions via interrogatories or depositions, requests for records or other evidence, and sometimes visiting the scene of the incident that caused the complaint.

The discovery process can be short or very lengthy. Either side may ask for information from the other, and if necessary, a judge will rule on whether the parties to the suit must comply with these requests. In some instances, one party in a lawsuit may obtain a court order demanding that specific documents be turned over, or that specific individuals be called to testify in court. This order is called a subpoena. A subpoena may also be used to obtain further evidence or witnesses while a trial is ongoing.

The plaintiff in the lawsuit has the burden of proving the allegations set forth in the petition. This is the responsibility of proving to the finder of fact (judge or jury) that a particular view of the facts is true. In a civil case, the plaintiff must convince the court "by a preponderance of the evidence" that is, over 50% of the believable evidence. In a criminal case, the government has a higher standard, and must convince the court "beyond a reasonable doubt" that a defendant is guilty.

Trial and Appeal
The trial is the portion of the injury suit process where the plaintiff seeks to persuade the judge or jury that his or her version of the facts and points of law should prevail. In a like manner, the defendant also has an opportunity to persuade for their side. Most personal injury cases are tried in front of a jury. After a jury is selected to hear the trial, the process, while it may vary somewhat from state to state, is as follows:
1. Presentation by plaintiff
2. Presentation by defendant
3. Plaintiff's rebuttal
4. Summation by both parties
5. Judge's instructions about the applicable law and procedures to the jury
6. Jury deliberation
7. Verdict
8. Judgment or Award
9. Appeal of verdict and/or award
Either side has the right to appeal a verdict or award. In the personal injury area, it is common for a losing defendant to appeal the size of the award if it is considered to be excessive.

Demand Letter
Upon receipt of a demand letter, turn it over to your insurance company and your attorney for advice. Follow the recommendations of the insurance company and your attorney. Be as cooperative as possible with any investigations that your insurance company or attorney may instigate.

Notification of Filing a Lawsuit
Ordinarily, a representative of the court (i.e., constable, sheriff, etc. or a private person authorized by the court) will personally hand you the pleading so the court actually knows that you received it. If you are served with a pleading, you must recognize that these pleadings, and your company's obligations to respond, are time sensitive, and that you need to deliver the pleading to your attorney, making sure your insurance company gets a copy and you keep one for future reference.

As stated previously, the discovery process enables each party to obtain information from the other party, which will be used as documentary evidence to help prove the facts of a case. Managers will often be asked to turn over records of their business, repair invoices, reports, and information stored electronically. Plaintiffs often must turn over medical records and reports, doctor bills, receipts for damages, and other types of personal information. Often, a manager or staff member may be asked to prepare a personal statement during the discovery process, or even go to court and testify as a witness during the trial.

The cost of responding to discovery requests, either by testifying or preparing documents, can be a very expensive proposition for your operation, not only from a financial perspective but also because of the time and disruption to your staff. Accordingly, the better organized you are at the outset of the incident, the less of a burden the discovery process will be. Work closely with your attorney during this phase and be cooperative. Be sure to meet all time limits imposed for responses, as a missed deadline can be fatal to your side of the case.

Trial and Appeal
Request that your attorney update you frequently about trial settings (the date the trial will commence). Reciprocally, you need to let your attorney know about any times that you or your employees will be unavailable to testify (such as vacations, scheduled surgeries, etc.).

If your case is appealed, your involvement in the appellate process will be very minimal, if at all. This process rarely requires anything new from you that was not provided before the trial. However, you should continue to maintain your records of the case and keep track of any witnesses.

Alternative Dispute Resolution
There are alternatives to resolving personal injury claims in court. The parties at any time during the litigation process can agree on a settlement.

Two other common methods used in the restaurant industry are mediation and arbitration. Both can be highly effective alternatives to the time, cost, and stress involved in going through a trial.

In mediation, a trained and neutral individual (the mediator) facilitates negotiation between the parties, in order to achieve a voluntary resolution of the dispute. In most cases, one full day of mediation can result in a compromise acceptable to both the plaintiff and defendant. Mediation can involve sessions jointly held with both parties and their attorneys, or separate meetings with each party, their attorneys, and the mediator. The cost of mediation will vary based on the complexity of the case, but is generally far less than that involved in going to a trial. If the mediation is unsuccessful, the parties may still pursue a trial. If a settlement is made, the parties sign a settlement agreement approved by their attorneys. This agreement, if drafted properly, is an enforceable contract.

In arbitration, a neutral third party (usually chosen by mutual agreement of both parties) makes a binding decision after reviewing the evidence and hearing the arguments of all sides.

The Manager's Role in Alternative Dispute Resolution
Make sure that you and your attorney have established guidelines about what you can say, if anything, and when you can say it. Be patient. To be effective, the negotiation process can sometimes appear tedious, but the art of compromise usually takes time. Be flexible and willing to compromise. Many times, an apology at this point in the process will help pave the way for compromises on other significant issues, like the amount of money to be paid.

Despite all of your careful planning, preparation, and prevention techniques, guests can still be seriously injured on your property. They may sue, but if they do you are now in a better position to deal with the process.

Stephen Barth is an attorney and associate professor of law and leadership at the Conrad N. Hilton College of Hotel & Restaurant Management at the University of Houston. For more information visit Stephen can be contacted at (713) 963-8800 or via email at [email protected].
How to Get A Scholarship
Career Archives

Copyright © 2008