August 2018
On February 23, 2015, Plaintiff Liduina “Lee” Teles was visiting Berkeley, CA from Tewksbury, MA, to tour the UC Berkeley campus with her granddaughter. At around 12 pm, she went to the Starbucks at 2128 Oxford Street, Berkeley, and placed an order for tea. Plaintiff waited for her drink and then walked to the short counter “hand-off plane” to pick up her tea and slipped on coffee that was on the floor adjacent to the hand-off plane. Plaintiff alleges that as she fell she hit the right back of her head on the edge of the counter and then landed on her right side, hitting her elbow and hip.
The coffee was spilled by a male customer as he was picking up his drink from the hand-off plane moments before the plaintiff slipped. The male customer was trying to mop up the spilled coffee on the hand-off plane when he was noticed by the Barista who immediately approached and began to assist the male customer in cleaning up the spill while simultaneously verbally warning the other customers in the area. The Barista could see that some of the coffee had dripped onto the floor and called to his shift manager to take care of the spill in the customer area as the Barista could not access it from behind the bar.
After the Barista believed he had adequately warned all of the customers of the spill in the area of the hand-off plane, he turned to the cold beverage station to complete a drink, and when he turned back he saw the plaintiff being helped up off the floor. Almost simultaneously, the shift manager arrived to clean the spill and began to assist the plaintiff. Plaintiff was asked if she was okay and she said that she was all right but was concerned that there was no wet floor sign.
The Barista estimated that 30 seconds had elapsed from the time he had noticed the spill by the male customer until he saw the plaintiff being helped up off the floor. He also testified that 10 seconds elapsed from the time he turned away from the spill to complete the drink until he saw the plaintiff being helped off the floor. The store’s CCTV recorded and confirmed that 90 seconds lapsed from the time that the plaintiff walked out of the camera view after ordering her tea to when the plaintiff is seen leaving the store with her tea in hand and in no apparent physical distress. The location of the slip and fall was not covered by a CCTV camera.
Shortly after leaving the store, Plaintiff returned to make a report and is recorded on the CCTV entering and approaching the cash register and motioning to the shift supervisor to get his attention and pointing to her right forearm and elbow but seemingly in no acute distress. Plaintiff and her daughter then completed an incident report form.
Plaintiff went with her family to the Emergency Department at Alta Bates Hospital in Berkeley and complained that she had struck the back of her head in a fall and had pain in her right elbow and hip among other complaints. The medical records confirmed that both the attending nurse and treating doctor did not observe any signs of trauma to the plaintiff’s head. Plaintiff was diagnosed with a head injury, back pain and elbow contusion and instructed to follow-up with her primary care physician back in MA.
On July 6, 2015, the plaintiff was transported to the Emergency Department at a local hospital in MA after feeling dizzy while walking on the treadmill at her gym. The plaintiff was diagnosed with vertigo, nausea and vomiting. The plaintiff was admitted to hospital and remained there for four days. Plaintiff was ultimately diagnosed with vestibular neuritis. Significantly, during the entire time the plaintiff was hospitalized for the vertigo incident, she did not tell any of her treating or consulting doctors about the head injury she allegedly suffered at the Starbucks store in Berkeley five months prior. During the litigation, the plaintiff stipulated that her vestibular neuritis condition was not caused by the fall at Starbucks in Berkeley.
Plaintiff alleged that Starbucks was negligent in that it failed to adequately protect and warn her from the coffee spill that it knew was on the floor. Plaintiff called a retail industry expert, Alex Balian, who testified that the Barista’s efforts to verbally warn the customers of the spill were not sufficient and reasonable in the circumstances and therefore constituted negligence. Plaintiff argued that the case was about public safety and holding Starbucks responsible for failing to protect its customers.
Plaintiff argued that she suffered a traumatic brain injury as a result of falling and hitting her head. She claimed that the blow to her head changed her life completely and she was no longer the same person and couldn’t enjoy her life and family as she had before the fall. Plaintiff claimed that immediately after hitting her head she had a loud “whooshing” sound in her head that had been with her every minute since the fall. Plaintiff also claimed that she now had a problem with her balance and with walking since the accident. Plaintiff called a medical expert who was certified in “brain injury medicine” and who testified that all of the plaintiff’s ongoing symptoms and residuals were as a result of suffering a mild traumatic brain injury in the fall at Starbucks and that the plaintiff’s ongoing balance problems were not related to her subsequent vertigo incident.
Starbucks argued that the actions of its Barista in verbally warning the customers about the spill was both adequate and reasonable in the circumstances and met its legal obligation in protecting the plaintiff. Additionally, Starbucks argued that the unknown male customer was a cause of the accident and that the plaintiff should have seen the male customer cleaning up the spill and was therefore aware of the spill prior to slipping and falling. Starbucks called a neurologist who testified that even if the plaintiff hit her head in the fall and suffered a concussion, which by the now accepted definition is a mild traumatic brain injury, any symptoms from it resolved within months and that the plaintiff had no ongoing symptoms related to the fall at Starbucks. Starbucks also called an ENT who testified that if the plaintiff had tinnitus then it was more likely as a result of normal hearing loss. It was significant to him that the plaintiff did not make a subjective complaint of the noise to the initial treating doctors.
Plaintiff asked the jury to award her $650,800 in damages in closing argument. Starbucks counsel and DRI members Paul Caleo and Katrina Durek asked the jury to render a defense verdict. Starbucks served a pre-trial statutory offer of $45,001. The plaintiff’s lowest demand pre-trial was $150,000.
After a nine day jury trial in Oakland, California, the jury returned a defense verdict after deliberating for three hours. The jury found that Starbucks was not negligent (9/3) and not negligent in the use and maintenance of its property (9/3). As the prevailing party, Starbucks filed a cost bill of just under $100,000.
Starbucks obtained a significant pre-trial ruling when it successfully excluded the opinion of the plaintiff’s retail industry expert, Alex Balian, as to what the industry standard was regarding how to warn customers of a known spill. Mr. Balian testified that the industry standard was that the employee had to physically stand over and become a barrier to the spill and that verbally warning customers was insufficient. Starbucks was successful in excluding this opinion on the basis that this was the witness’ personal opinion and not based on any industry literature.
Additionally, Starbucks successfully argued that there was sufficient evidence for the unknown male customer to be on the verdict form as “fault of others” so that it was open to the jury to apportion fault to him as a cause of the plaintiff’s fall. Over plaintiff’s objections, the verdict form allowed the jury to apportion fault to both the unknown male customer and to the plaintiff herself.
Paul Caleo is a partner at Burnham Brown and one of the firm’s premier trial lawyers who has extensive experience in complex tort, personal injury and large loss cases involving claims of products liability, premises liability, government and public entity defense, construction site accidents and trucking/motor carrier accidents. He routinely represents retail corporations of all sizes in a wide variety of cases including wrongful death, serious personal injuries, traumatic brain injury (TBI), loss prevention and retail theft cases, and injuries caused by the criminal acts of third parties, in addition to prosecuting and defending contractual indemnity claims and breach of retail lease contract claims
Katrina R. Durek is an associate at Burnham Brown who counsels and represents businesses of varying sizes, including multi-national retailers, restaurant franchises, and small businesses. Ms. Durek is a trial attorney who handles a variety of matters including premises liability, products liability, contract disputes and employment matters. Ms. Durek represents parties in all phases of litigation, including investigation, law and motion, mediation and trial.
