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Aziz v. Jack in the Box, Eastern Division, LP

Court of Appeals of Missouri, Eastern District, Fourth Division

September 1, 2015


Page 99

Appeal from the Circuit Court of the City of St. Louis. 1122-CC00629. Honorable Thomas C. Grady.

FOR APPELLANT: Susan Ford Robertson, J. Zachary Bickel, Kansas city, MO.

FOR RESPONDENT: John David Anderson, Andrew Scott Martin, St. Louis, MO; Lisa A. Pake, St. Louis, MO.

ROBERT M. CLAYTON III, Judge. Patricia L. Cohen, P.J., and Roy L. Richter, J. concur.


Page 100


Jack in the Box, Eastern Division, LP, and Jack in the Box, Inc. (collectively " Defendant" )[1] appeals the trial court's denial of its motion for judgment notwithstanding the verdict following a jury verdict in favor Ali Aziz, by and through his natural mother and next friend Annette Brown (" Plaintiff" ) on Plaintiff's claim for premises liability, stemming from an assault that occurred on Defendant's property. Defendant also appeals the trial court's denial of its motion for a new trial for failure to admit impeachment evidence against an expert witness. We affirm.


Plaintiff brought a claim for premises liability against Defendant. A jury trial adduced the following facts, viewed in the light most favorable to the verdict.

Defendant owns and operates a fast food restaurant (" the restaurant" ) open twenty-four hours a day. Between the hours of 10:00 p.m. and 6:00 a.m., only the drive-thru window is open, and the dining room is closed. The restaurant is located near many bars, and as a result attracts many late-night customers. Diane Malone, one of Defendant's employees, described many customers on weekend nights as " drunks" and " weirdos."

Defendant has an asset protection department that is charged with promoting customer safety and security at its restaurants. Defendant's internal policies recognize the dangers of loitering and disruptive customers. The policies on loitering and disruptive activity required that action be taken " immediately" because such activity leads to " fighting," " injury," or other danger to people on the premises. The policies

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prohibit walking up to the drive-thru window. They advise employees to encourage disruptive customers to leave or to call the police. Despite these policies, Defendant's employees at the restaurant received no formal training on how to deal with disruptive customers.

The restaurant did not have any on-site security guards during the period relevant to this appeal. Rather, Defendant retained an outside security service, Westec Interactive Security, Inc. (" Westec" ), to provide remote assistance. Defendant's employees had a " duress button" and a " red phone" that allowed them to contact Westec directly in the event of a disruptive situation. Westec could make an announcement over an outside loudspeaker directing the disruptive customers to leave, or it could call the police.

The restaurant had fourteen surveillance cameras inside and outside. A live feed from the cameras was sent to monitors located in the manager's office inside the restaurant. The footage was supposed to be watched by the manager, so that he or she could call Westec or the police in the event of a disturbance.

Sometime before 5:00 a.m. on June 20, 2010, a group of nine young men and women between the ages of seventeen and twenty-three arrived in two cars (" the Lane group" ). A white Grand Am, driven by Johnnie Lane, pulled into the drive-thru lane and the second car parked in the parking lot next to the drive-thru lane. The cars played loud music and the five passengers in the parked car exited the car and were dancing and roaming through the parking lot and drive-thru lane. The Lane group walked up to the drive-thru window, held up the drive-thru lane, climbed onto the hood of one person's car, danced on another customer's car, approached numerous other vehicles and customers waiting in and around the drive-thru.

Defendant's employee described it as a " crazy night and very busy" at the restaurant. Customers honked their horns and pulled away because of the disruption by the Lane group. The parties dispute how long the Lane group remained in the parking lot, but one member of the group stated it could have been " thirty minutes, forty minutes, could have been as long as an hour." Despite this lengthy disruption to Defendant's business, Defendant's employees took no action to disperse the Lane group or direct them back to their cars, and no employee contacted Westec. Defendant's employee at the drive-thru window did ask one individual, who was jumping on the hood of another customer's car, to get down, and she complied.

At approximately 5:13 a.m., Plaintiff and his passenger drove into the parking lot. They exited the car and were engaged by several members of the Lane group as they approached the restaurant. Over the next three minutes, additional members of the Lane group walked back and forth between the parking lot and the drive-thru lane, engaging Plaintiff. Lane asked Defendant's drive-thru employee: " Excuse me, ma'am, I have to go break this up," and she replied, " [g]o ahead."

Subsequently a fight broke out, and one of the members of the Lane group knocked Plaintiff to the ground, where he was surrounded by the group. They beat him and kicked him in the head repeatedly. Plaintiff's passenger fled the scene. After the assault, when Plaintiff was lying unconscious and bleeding on the ground, the Lane group robbed Plaintiff and also fled the scene. The attack lasted approximately ninety seconds.

At approximately 5:18 a.m., another customer in the drive-thru lane called 911. The police arrived in response to that call

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at 5:27 a.m. Defendant's manager did not call the police until 5:26 a.m., after the assault had ended and the police were already on their way. Defendant's drive-thru employee asked the manager to call the police before the Lane group attacked Plaintiff, but he did not do so until she asked him a second time. Defendant's manager admitted he did not take any action the first time the drive-thru employee called out for help and stated that he was not paying attention to the video monitors and was counting money in anticipation of an upcoming shift change. No employee ever pressed the panic button or called Westec to request assistance. No employee called the police when the disruptive activity was causing other customers to leave the premises or at any time during the assault on Plaintiff.

Plaintiff was unresponsive and unable to breathe on his own when he was taken to the emergency room after the attack. He suffered a skull fracture, a fractured jaw, loss of blood, and brain damage. He remained in a coma for approximately two years. Plaintiff spent two months in the hospital after his attack, mostly in intensive care, before moving to a rehab center.

Plaintiff's mother, Annette Brown, did not think her son was receiving adequate care at the rehab center, so she quit her job and brought Plaintiff home to live with her. She has cared for him ever since. Plaintiff has anoxic brain damage and many physical limitations. He has severe contraction of his left arm and his legs from being bedridden and comatose, and he is unable to sit, stand, walk, or take care of himself in any way. He takes a number of medications and requires constant care. As of the time of trial, Plaintiff was expected to live another 39.1 years, but his physical condition was not expected to improve.

Dr. Therese Bright, a certified life care planner, opined that Plaintiff will be severely disabled for the remainder of his life and will require 24-hour care, physical therapy, and frequent hospitalizations. Dr. Bright prepared a conservative life care plan to meet Plaintiff's needs, including provision for 24-hour care either at home or in a facility, doctor visits, medications, physical therapy, and hospitalizations. Dr. Bright concluded that the total costs to meet Plaintiff's needs at home would be $493,000 annually, or $19,298,000 over his lifetime. The total lifetime costs to meet his needs at a facility would be $18,242,000.

Dr. Bright is not a medical doctor, and she therefore relied on competency, qualifications, and credentials of the doctors who provided care to Plaintiff to give the basis for the opinions she gave in her life care plan. She provided opinions based on the medical opinions, care, and ...

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