Bad Dog

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

Julie McLemore and her husband, former Houston Post sports editor Ivy McLemore, grew up within a few miles of each other in the Meyerland area, and though they didn't meet, and then marry, until much later, the couple found they shared a lifelong passion for James Coney Island cheese dogs. "They've got fabulous hot dogs," Ivy says. "I have fond memories of going there with my dad," Julie says.

After 11 years of trying without success to conceive a child of their own, Julie and Ivy adopted a son, Russell, as an infant in August 1996, and soon began to indoctrinate the young boy. The family fell into the habit of stopping in at the chain's Post Oak location for cheese dogs after church on Sunday.

So it was perfectly in character when the McLemores stopped in at James Coney's Meyerland store the day after Christmas in 1997, to meet two other couples and chew the post-holiday fat. When the McLemores walked into the store, they saw that one couple had already arrived, and Julie sat to talk with them, while Ivy -- with then-16-month-old Russell in the crook of his arm -- walked across the store to get a high chair for his son.

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.

By the time Julie heard her husband yelling her name across the restaurant, Ivy was on the floor in a puddle of mop water, his knee and elbow badly bruised. Russell was on the floor too. He'd hit his head hard on the way down. A bump was growing on the back of his skull, and he was bleeding from the mouth. Julie says she had to ask three different times to get someone at James Coney to call 911.

"There was just utter chaos, like no one would take charge. They were just kind of looking at me, like, 'Do we need to call 911?' And I'm like, 'Yes, you need to call 911.' "

Finally the manager on duty approached her with a pad of paper and asked her to write down her name, address and phone number. Julie complied.

"He just took it from me and started to walk away. I stopped him and I said, 'and what is your name?' Because he did not offer it. And he said, 'Roger.' And he didn't give me a last name, and he didn't tell me what his position was. And he walked away. And that is the extent of my conversation with any James Coney Island employee at that time. That was it."


Both Ivy and Russell McLemore were conveyed to hospitals via ambulance, and both were released later that night with relatively clean bills of health -- Ivy was on crutches for a few days -- and about $2,000 in medical bills, which they hoped that James Coney Island would pay.

But, says Ivy, "They never called us or wrote us for any reason."

So after a month without hearing from James Coney, Ivy asked his friend and fellow Touchdown Club of Houston board member William Wade, an attorney specializing in personal injury and employment law, to write a letter. James Coney, Wade says, never responded. So Wade contacted James Coney's liability carrier, Kemper Insurance, and Kemper took care of what Wade estimates at less than 10 percent of the McLemores' medical bills, and then stopped.

A meeting with Kemper several months later, Wade says, was friendly, but led to nothing.

In July 1998 Wade wrote to James Coney Vice President Darrin Straughan about the McLemores' story, looking for an out-of-court settlement, and heard nothing back.

The McLemores finally filed suit against James Coney Island in the fall of 1998, but several weeks before the trial was scheduled to begin, Wade and the McLemores met with Kemper Insurance one last time. Wade made a settlement demand of $60,000 on behalf of his three clients. According to Wade, Kemper responded with a $10,000 offer. Wade then offered to split the difference: $35,000.

"I never got a response. Not even a 'Go to hell.' "


Slip-and-fall cases are notoriously hard to win, especially since tort reform legislation in 1995 -- under the guise of preventing frivolous lawsuits and lowering insurance rates -- upped the plaintiff's burden of proof and put caps on the amount of punitive damages juries were allowed to award to defendants. William Wade, who spent ten years working as an insurance defense lawyer for corporations before jumping fence to represent plaintiffs, thinks tort reform was a public relations masterstroke, but a legal crock.

"This is what makes me so mad doing my kind of work. You've got all these people out there, from the governor on down, talking about scummy plaintiff's lawyers. And here's a case where we're trying to do what's right, we're trying to settle the case. Even the ad litem is: 'We're just getting the stonewall.' "

The attorney ad litem in question is Norman Roser, appointed to represent the underage plaintiff, Russell. In March of this year, as the trial was already under way, Roser wrote a letter to the supervisor of Kemper Insurance stating: "ŠI have to tell you that in my entire history of handling slip and fall cases [as defense counsel for Memorial Hermann Healthcare System], I have never heard as good a fact scenario come out of a plaintiff case in a slip and fall as this one." Roser felt that the jury was "clearly looking to the plaintiffs in this case," and invited Kemper to the table yet again to discuss an out-of-court settlement.

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.

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."

"We hear of all these stories," Julie says, "where kids turn 18 and they get all this money, and we just want the best for him."

Ivy McLemore counts the number of times he has been back to eat at James Coney since the fall at an even "zero."

Julie McLemore just laughs.

Russell, both say, doesn't remember much of the accident.

E-mail Brad Tyer at brad.tyer@houstonpress.com.

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