Bad Dog

A slip-and-fall case bites James Coney Island in the butt

Kemper and James Coney just as clearly felt otherwise, and the trial moved into its second day.

Wade's witnesses testified that they had seen a James Coney employee mopping the tile floor with a wet string mop, and Wade produced a James Coney safety manual that indicated the use of a dry mop in dining areas. Another longtime James Coney fan, Duane Hefley, firefighter and owner of the Firehouse Saloon, testified that the water was on the floor, with no warning cones in place, for at least ten minutes -- the amount of time that it took him to eat his regular weekly order of three hot dogs and one corn dog.

James Coney failed to produce a requested personnel file for the manager on duty, and when asked to provide the plaintiffs with the restaurant safety manual in effect at the time of the accident, James Coney sent a current safety manual and noted that the manual in effect at the time of the accident could not be located. James Coney's answers to Wade's discovery questions were not notarized. James Coney testified that the fall was not the chain's fault and that it had followed all of its own rules.

After being stonewalled by James Coney Island, the McLemore family got twice what it sought from a jury.
Deron Neblett
After being stonewalled by James Coney Island, the McLemore family got twice what it sought from a jury.

Wade put Julie McLemore on the stand and asked her what was so special about Russell, whereupon she jerked jury tears with the story of Russell's arrival into the family bosom. Wade produced the manager's accident report, written the night of the fall on a plain piece of paper, not even on the company's official accident report form. The report makes note of Ivy, and a bystander who handed Julie a business card and an open invitation to call him as a witness if it should come to that. The accident report doesn't even mention Russell, who was screaming like you might expect a 16-month-old boy bleeding from the mouth to scream. There's no mention of any child at all. Security camera videotapes installed at the Meyerland store, the defense stated, had unfortunately not been loaded with videotape at the time of the accident.

The jury didn't like that much. After deliberating an afternoon and a morning, it returned with a verdict awarding $227,000 in damages, of which $200,000 was marked punitive, exactly twice what Wade had asked for, and the maximum allowable under tort reform law.

The Blue Sheet, a trial-results publication, highlighted the verdict. Blue Sheet editor Gary Hardin says the case was unusual because "In our experience, slip and fall cases are just really tough to win, particularly in Harris County. And on this, a malice finding is even more rare. And then for the jury to award more than was asked of them by the plaintiff counsel is rare. And then the last thing that I thought was of interest for our subscribers in the business, the human relations people, this was a hard lesson in customer relations."

The Blue Sheet quoted "an interested court room observer" as saying, after the first day of trial, "I can't believe James Coney Island wants to see a big headline in the Houston Chronicle." Ivy McLemore, a former Houston Post colleague of current Press editor Margaret Downing's, contacted Downing with the outline of this story.

James Coney V.P. Straughan delivers the statement that "We don't agree with the judgment, with the verdict. We are looking into the appeal. We are going to appeal. And then other than that, we're just going to let the judicial system handle it, and we're not going to make any other comments in the press."

Straughan did confirm, however, that the law firm that represented James Coney against the McLemores has since been fired. "We do have a new attorney on the case," he reports, for reasons "unrelated."

After the verdict, Wade, confident in the statistic that some 80 percent of cases stand on appeal, yet practical enough to know that any given appeal could wind up part of the 20 percent and at the very least drag things out, wrote once again to James Coney counsel. This time he knocked $40,000 off the jury verdict to offer a $190,000 payout for settlement.

The next day James Coney's new lawyers replied with a rejection, and a counteroffer of $15,000.

"That," says Wade, "is such an insult that I don't even know what I can say about that. What that does show me is that all the bullshit of plaintiffs being unreasonable and a legal system out of whack, well there's another side to that story, and to me that's the theme of this whole case."

It's easy enough to guess what James Coney might see the theme being.

The McLemores are sticking to the line that just under $2,000 in medical bills and maybe an apology could have rendered the whole trial unnecessary, but they'll go with what the jury says. In fact both Ivy and Julie McLemore say they're more worried about the money than anything else. There is $160,000 earmarked in a trust for Russell, who is now three years and eight months old.

If the judgment stands, Ivy thinks, then "Theoretically when he's 18 he can go to Monte Carlo and we can't stop him. Believe me, I've got second thoughts about that happening."

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