Premises Liability; Check Out These Damages

Arthur Mayo worked as a “rigger,” meaning he operated systems for moving staging props for concerts. Basically, he was a concert roadie. He worked about 45 weeks out of the year. How much he made depended on who he worked for, as follows:

Night Ranger/Bad Company/Ted Nugent $1,500-2,000 per week
Phil Collins/Genesis $2,000-2,250 per week
Barbara Streisand $2,400-2,500 per week
Grateful Dead $2,500 per week

One can only wonder how Streisand got into such an otherwise illustrious group. While working for Night Ranger, Rigger Mayo was booked into the Koko Motel in Lubbock County, Texas. The Koko had a leaking sewer line just underneath the motel lobby. If there’s any place you don’t want a sewer leak, it’s in the lobby, and this repair was no small job. Ramon Mendoza, the independent contractor plumber hired for this unenviable task, cut a hole in the lobby floor about 3 or 4 feet long. Underneath the floor, he excavated a hole about 12 feet long and 4 feet deep, just so he could reach the stinky leaky line. As he removed the aromatic soil and debris from this area, he hauled it out in buckets to an unenclosed utility trailer parked along a sidewalk outside an entrance to the motel.

Now, it would seem easy to see the big hole in the lobby (one can only imagine the stench that wafted out of this hole–even Stevie Wonder could find it), and the big dump trailer most likely hitched to a pick-up, and notice the activity going on. Unfortunately, Rigger Mayo wasn’t paying very much attention, because after going through the lobby, and walking around the parking lot, where he saw all the commotion and equipment and debris, he walked right by the trailer, stumbled on a piece of concrete laying on the ground beside the trailer, hit the trailer on his way down, and broke a bone in his foot. Rigger Mayo picked up this piece of concrete, and threw it into the trailer, no doubt orally wishing it well along its journey. While he was at it, he cleaned up some other rubble that likewise hadn’t found its way into the trailer. Apparently Plumber Mendoza wasn’t too detailed about getting the excavated debris into the trailer, and one can only hope he was more interested in keeping the sewer in the line than he was about getting the debris in the trailer.

In any event, at this point in the story we have an injury, and we now have to figure out who’s gonna pay. We call this lottery “premises liability.” The court opinion doesn’t say why Rigger Mayo didn’t sue Plumber Mendoza. And so, sights were set on the deep pockets of the lovely Koko Motel and its insurer.

Complicating this story was the fact that Plumber Mendoza was an independent contractor. The Koko Motel basically said “since Plumber Mendoza was an independent contractor, we didn’t have control over how he did his job, so we can’t be liable for an injury he caused.” But the Court didn’t agree. Here are the rules:

An owner/occupier of land has no duty to insure that an independent contractor performs its work safely;

HOWEVER, the owner/occupier cannot turn a blind eye to hazardous conditions created by the independent contractor when the owner/occupier retains control of the property and continues to welcome customers onto its premises. The right to control the contractor is irrelevant.

THEREFORE, the owner/occupier must inspect the premises and warn customers of dangerous conditions of which it knows or should have known.

No warning was given as to either the hole in the lobby or the trailer outside. So, the liability issue came down to this question: did the Koko Motel know, or should it have known, about the concrete and debris?

And now we come to the part of the story that perhaps could have changed things. When Rigger Mayo got injured, others helped him back into the motel’s lobby. The receptionist/clerk on duty came over and asked what happened. Hearing the story, she said “I hope we can get maintenance to clean that up, we’ve told them about it.” And as if that wasn’t bad enough, she added “we’ve been meaning to clean it up.” Folks, that’s actual knowledge, and proof that the Koko knew of the danger long enough to have called maintenance, and thus warn Rigger Mayo and others. The Koko Motel’s lawyer tried to argue that these statements really showed that maintenance was only called after the injury (what else could he say?), but the Court basically said “get real.”

Now to the dollars of the case. How in the world did a concert rigger, a roadie making about $100,000 per year win damages of over $1.5 million? Here’s where the plaintiff’s lawyer and his chosen experts really shined. They started with what Mayo earned before the injury. Then they showed what he made after the injury. It seems that this injury prevented Mayo from continuing as a rigger, so he was a carpenter on the tours of the Dixie Chicks, Barry White, and Metallica, and a lighting technician for Chicago and Bush. One can only wonder what is on this guy’s iPOD. He made $2,000 per week with the Dixie Chicks, about the same as he made as a rigger before the injury. Chicago and Bush were much more stingy, paying only $750 to $1,100 per week. Apparently his injury was accompanied by arthritis which worsened by the day, eventually preventing him from doing any job that required standing for any significant period of time.

Mayo’s experts then calculated lost wages per year, pre-trial, as follows:

1995 $ 6,600
1996 $ 27,000
1997 $ 93,000
1998 $ 27,000
1999 $ 36,000
2000 $ 78,000
Total $270,000

Mayo’s expert used “real” numbers for years 1995 through 1999, taking the difference between what Mayo would have made had he continued as a rigger, vs. what he actually made as a lighting tech/carpenter. For Y2K, the expert assumed that Mayo would have received a promotion to head rigger, and the accompanying raise, to $3,750 per week had he not been injured. That’s right. When someone is injured, they can argue “here’s how my career would have gone but for the injury” which, of course, is a “perfect” scenario. Don’t we all think highly of our skills?

Then, the expert said “now, multiply this difference in what Mayo would have made per week times 45 weeks, to get an annual figure, then multiply that annual number by the number of years Mayo could ‘reasonably’ be expected to work after the trial” (which in this case was 27 assuming a retirement age of 60, or 32 assuming retirement at 65), “and discount that back to present value.” That’s a lot of multiplying, and results in a range of lost future wages from $1,763,258 to $2,018,780. Do you really think this guy would have remained a roadie until he was 60 or 65? Well, the jury picked the number $1,200,000. Why? Nobody but the jury knows how they came up with that number. Welcome to one of the big uncertainties in premises liability lawsuits.

Mayo threw in some testimony about how painful his injury was for good measure, both when it happened as well as the continued pain thereafter, and the jury awarded him an additional $5,000 for past physical pain and mental anguish, $25,000 for future physical pain and mental anguish, $5,000 for disfigurement in the past, and $6,000 for medical care in the past. So this plaintiff’s lawyer basically took an injury that cost $6,000 to “fix” and parlayed it into a lawsuit worth over $1.5 million. If the lawyer’s contingency interest in the case was 1/3rd, the lawyer got just over $500,000. If, more likely, the lawyer’s contingency interest was 40%, the lawyer got more than $600,000 from this one case. Not a bad payday.

One other fact to note: Mayo’s injury was in 1994. The Court of Appeals opinion was delivered in November of 2002. That’s 8 years of uncertainty for all parties involved.

Koko Motel, Inc., v. Mayo, Case No. 07-01-0322-CV, Court of Appeals, Amarillo, Texas, Nov. 21, 2002

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