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ORANGE COUNTY (714) 434-1424

INLAND EMPIRE (951) 534-4006

TOLL FREE (866) 434-1424

ORANGE COUNTY (714) 434-1424

INLAND EMPIRE (951) 534-4006

$20,000,000: Child Sustains Severe Playground Brain Injury at Fast Food Restaurant

SETTLEMENT AMOUNT

$20,000,000 (Present Cash Value) $100,354,934 (Expected Payout broken down as $99,722,406 to Jacob B. and $582,528.00 to Isabelle B.)

CASE DESCRIPTION

Jacob   B.The Plaintiff, Jacob B., age 10, fell from the cross bars of the playground at a national fast food burger chain restaurant and suffered a severe, traumatic brain injury when his head struck the restaurant floor tile. Due to the severity of the fall, Jacob will require 24 hour life time care. While Defendants argued that the cross bars were not part of the play structure, Plaintiff was able to establish through intensive discovery that the cross bars resembled and were repeatedly used by prior customers as public playground “monkey bars” and discovered a serious prior injury at the same location. In addition, there were reasonable means to prevent access to the bars and the flooring below the bars lacked proper padding. Isabelle B., age 5, Plaintiff’s sister, brought a case for Negligent Infliction of Emotional Distress since she witnessed the incident to her brother, “Jake”.

COUNTY: Orange

CITY: Santa Ana

COMPLETE TITLE OF PLAINTIFFS:

  • JACOB B., a minor by and through his Guardian Ad Litem, JULIE B.
  • ISABELLE B., a minor by and through her Guardian Ad Litem, JULIE B.

COMPLETE TITLE OF DEFENDANTS:

  • Doe National Fast Food Burger Chain
  • Doe National Franchisee Restauranteur
  • Doe National Playground Manufacturer
  • Per Confidentiality Agreement
  • Delta Marketing, Incorporated
  • Installer of Playground Equipment
  • Playground Concepts Design & Manufacturing
  • Co-Manufacturer of Playground Equipment

CASE NUMBER: 07CC09453

COURT: Orange County Superior – Central Justice Center Department C-03,

Honorable Kazuharu Makino

DATE OF SETTLEMENT: February 2009

TYPE OF CASE: Premises Liability, Personal Injury; Products Liability, Negligent Manufacture, Negligence Per Se, Negligent Infliction of Emotional Distress

PLAINTIFFS’ ATTORNEY

Christopher R. Aitken, Esq.
Wylie Aitken, Esq.
AITKEN * AITKEN * COHN
3 MacARTHUR PLACE, SUITE 800
SANTA ANA, CA 92707
(866) 434-1424
[email protected]
[email protected]

DEFENDANTS’ ATTORNEYS

Rene Faucher, Esq.
GRAY & DUFFY, LLP
15760 Ventura Blvd., 16th Floor
Encino, CA 91436
(818) 907-4000

Representing Defendant Playground Concepts Design and Manufacturing, Inc.
Doe Attorneys for National Burger Food Chain, National Burger Franchisee and

National Playground Manufacturer
Confidential Per Agreement

DATE/TIME OF INCIDENT: August 4, 2005 at about 7:00 p.m.

WHERE: National Fast Food Burger Chain Restaurant, Temecula, California

PLAINTIFF’S AGE: Jacob B. 10, Isabelle B. 5

OCCUPATION: Elementary School Students

RESIDENCE: Temecula, California

PLAINTIFF’S INJURIES AS CONTENDED BY PLAINTIFFS

Jacob suffered a severe traumatic brain injury including a right parietal edidural hematoma that was subsequently evacuated to the Children’s Hospital of San Diego. Jacob also suffered a left frontal lobe contusion and bilateral pulmonary contusions. For such injuries, a craniotomy was performed, followed by ventilator and G-Tube Placement. The initial hospitalization occurred at San Diego Children’s Hospital where he was hospitalized from August 4, 2005 to September 23, 2005.

Jacob was admitted into Healthbridge Children’s Rehabilitation Hospital for approximately 6 weeks. The medical practitioners worked on issues of spasticity, mostly in the left upper extremity. Jacob was then transferred to Children’s Hospital of Orange County wherein a ventricle shunt was placed. Due to complications, Jacob was eventually readmitted to Children’s Hospital of San Diego for two additional months. Jacob had compromise of his movement over the left side of his body, primarily to the upper extremity. Jacob continued his treatment over the next several months. Jacob eventually was admitted to Casa Colina Rehabilitation Center in Pomona, California.

Neuropsychological Case Study: Jacob B.

Due to the severe brain injury, Jacob also had significant behavioral compromise. On the one hand, Jacob was a unique case from a neuropsychological perspective. Jacob had pre-existing OCD/ADD and pre-existing compromised neuropsychological function. As such, Jacob had extensive neuropsychological testing prior to and subsequent to the fall from the playground structure. These pre-incident tests demonstrated difficulties in expressive language development, poor articulation, poor word retrieval, and “dipping” behaviors. Jacob scored above average in cognition and non-verbal cues.

Unfortunately, due to the severe frontal lobe contusion, Jacob suffered compromise to his cognition and intellectual skills post incident. Jacob’s high performance academically was now found to be in the below average range. Jacob also had compromise in his memory skills, verbal and non verbal. Jacob was placed on a treatment regimen which he continues to implement, and improve, to this day.

PLAINTIFF’S INJURIES AS CONTENDED BY DEFENDANTS:

The defendants disputed the extent and nature of Jacob’s injuries. While defendants conceded a significant head injury, defendants argued that Jacob’s pre-existing issues from a neuropsychological perspective showed significant impairments that carried after the incident. Further, defendants disputed the nature and extent of Jacob’s life care plan. Per defendants’ economic calculations, they found that their life care plan differed by approximately $2 million less than Plaintiffs’.

PLAINTIFF’S CONTENTIONS AS TO LIABILITY:

1. Contentions as to the Manufacturer and Installer of the Playground:

Plaintiff contended that the design of the playground was below the standard of care. Plaintiff contended that the playground was designed in such a way wherein the outside structure poles resembled playground “fireman poles” and the underlying support resembled playground “monkey bars”. Due to the design, Plaintiff contended that children would use such poles and bars for play. Despite this foreseeable misuse, Plaintiff contended that the defendants failed to place proper safety flooring underneath such support poles and crossbars. As a result, Jacob B. fell from the cross bars and struck his head on restaurant tile as opposed to safety flooring. Plaintiff contended that the soft contained playground was not “contained” in that improper netting was not used to keep children within the confines of the playground. Plaintiff established through intensive discovery of the national fast food burger restaurant chain that several alternative designs were available to prevent the kind of injury that befell Jacob B.. Plaintiff contended that the installer of the playground was negligent to find the obvious deficiencies of the playground at the time of installation.

2. Contentions As to the National Food Burger Chain and National Franchisee

Plaintiff contended that the national food burger chain retained control over the subject franchisee restaurant despite franchisee agreements entered into regarding contentions that franchisee was an independent contractor. As stated by the franchisee owner, the franchisor (national food chain) controlled everything from the “lettuce to the pickles.” Plaintiff contended that the Franchisor set up a system of approved vendors, of which Playground Concepts Design & Manufacturing, Inc. was one, and that the Franchisor set forth certain playground standards to comply. Plaintiff contended that while the Franchisor distributed certain standards, they provided no oversight or further inspection to ensure that any playground safety standards were followed by any of the Franchisee restaurants. On the other hand, the Franchisor would provide some oversight over its “company owned” restaurants. Plaintiff questioned the legitimacy of such system in that the Franchisor was paid certain royalties by the Franchisee for use of its brands and trademarks. Plaintiff contended the Franchisee and Franchisor were negligent in their use of warning signs in that, in several other Franchisee fast food restaurants, they had specific warning signs about the dangers of climbing on support poles. In the particular restaurant, however, such warning signs did not exist.

Through intensive discovery, Plaintiff was able to establish through video surveillance that the playground was being misused by children on a regular basis. Plaintiff established through depositions of current and former restaurant employees that children would climb on the support structures on a weekly basis not only on the subject playground but other playgrounds operated by the National Franchisee. Plaintiff contended that the Franchisor did not have an inspection system to detect any issues with its playgrounds such as what was being done at competing national fast food chains.

Plaintiff, through discovery, was able to establish that the national fast food chain had other similar injuries over its tenure of using such soft contained playground systems. In the particular restaurant, Plaintiff was able to establish that a very similar incident occurred 3 years prior to the fall of Jacob B. where in a child suffered a broken arm due to the fall. Despite such prior injury, no re-designs of the playground were considered prior to the subject incident.

Plaintiff also contended that the Franchisor was liable under principles of “obtensible agency” in that families, such as the B. family, reasonably relied on the Franchisor, and its specific restaurant branding, to ensure a safe product. Plaintiff also brought a cause of action under Products Liability under a failure to warn theory of a known danger by the Franchisor.

DEFENDANT’S CONTENTIONS AS TO LIABILITY:

Defendant contended that Jacob B., and his father, were negligent in the use of the playground structure. Defendant contended that Jacob’s father was not properly supervising his child on the playground. Defendant contended that the playground complied with national ASTM (American Society for Testing and Materials) standards for soft contained playgrounds. Defendant contended that the safety flooring was sufficient and to ASTM code for the entry and exits of the soft contained playground. They further contended that the installer had altered the product and removed safety netting and that the installer was the sole cause of the incident.

Further, the national fast food burger chain specifically contended that it had no control over the operation of the Franchisee Restaurant. The national food chain claimed no knowledge of any issues of the subject playground. The national food chain brought a Motion for Summary Judgment, which was denied, claiming lack of control over the subject playground and the day to day operation of the Franchisee restaurant. In denying the Motion for Summary Judgment, the trial judge commented that with the right to “control” the franchisee restaurant comes the “responsibility” to make the premises safe.

FINAL RESULT

$20,000,000 Present Cash Value
$100,354,934 (The expected payout is $100,354,934 broken down as $99,722,406 to Jacob B. and $582,528.00 to Isabelle B.) With the resolution, Kevin and Julie B. also received $1,500,000 for their wrongful death claim due to the reduction of life expectancy opined.

MEDICAL SPECIALS

Past: Approximately $1,500,000 (Defendant Argued significant Hanif reduction on past medical billings paid)
Future: Approximately $6,530,000 per Plaintiff’s Life Care Plan ($5,000,000 per Defendant) Both reduced to present cash value.

PLAINTIFFS’ EXPERTS

Liability: Joseph Halper (Playground Expert) Pacific Palisades, CA; Jeffrey Wheeler, M.S. (Biomechanics) Torrance, CA; Juris Productions (video production) Los Angeles, CA; High Impact (animation/illustration) Englewood, CO.

Damages: Dr. William Loudon, (Neurosurgery) Orange, CA; Anne Barnes, R.N. (Registered Nurse Life Care Planner) Glendale, CA; Sharon Grandinette, MS, CBIST, (Special Education Consultant/Trainer) Redondo Beach, CA; Dr. David M. Lechuga (Neuropsychologist) Lake Forest, CA; David Patterson, M.D. (Physiatrist) Pomona, CA; Ross Nathan, M.D. (Orthopedic Upper Extremity Specialist) Long Beach, CA.

DEFENDANTS’ EXPERTS

Thomas Hedge, MD (Physiatrist); Linda Olzack (Life Care Planner); Dr. Wendy Mitchell (Neurologist) Los Angeles, CA.

SETTLEMENT NEGOTIATIONS

The matter was settled after two mediation sessions in front of Troy Roe at Judicate West. Delta Marketing, the installer, contributed $1,000,000 policy limits (Scottsdale Insurance Company) to the resolution. The National Playground Manufacturer contributed $5,000,000 to the resolution (Traveler’s Insurance Company). The National Fast Food Burger Chain and National Franchisee of the chain contributed $14,000,000 to the resolution. (Fireman’s Fund Insurance Company)

POSTSCRIPT: The issue of playground safety, for both indoor and outdoor playground systems, is a national safety issue being generally regulated by the Consumer Product Safety Commission It has been recently estimated that 215,000 children go to the emergency room due to playground injuries. From January 1990 to August 2000, the U.S. Consumer Product Safety Commission received reports of 147 deaths to children younger than 15 that involved playground equipment. Another study revealed that 75% of public playgrounds lack adequate protective surfacing. According to another report, a child is injured on playground equipment every 2.5 minutes.

After the incident to Jacob B., the national fast food burger chain began outsourcing third party inspections for their company owned and franchisee restaurants on a national basis. The third party inspections were mandatory for all restaurants and were intended to identify and correct ASTM standard violations on all indoor and outdoor playgrounds.

SUBMITTED BY:

Christopher R. Aitken, Esq.
AITKEN * AITKEN * COHN
3 MacARTHUR PLACE, SUITE 800
SANTA ANA, CA 92707
(866) 434-1424
[email protected]


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