Trial Magazine

Joshua Mathews was at Pete’s Bar, a beachfront bar in Neptune Beach, Fla., at closing time when other patrons became involved in a verbal altercation at the exit. The argument led to a physical fight outside the bar. At some point, Mathews was punched, and he fell and hit his head on the pavement.

Mathews, 30, lost consciousness. Rescuers found him unresponsive on the ground, with a Glasgow Coma Score of three—the lowest possible score out of 15. He was taken to a hospital ­emergency room, where doctors diagnosed a left subdural hematoma and midline shift with herniation, left ­frontal-temporal contusions, a subarachnoid hemorrhage, and fractures of the right maxillary sinus and right and left ­parietal bones. He also had a “blown” left pupil, which remained in a fixed, dilated state. He underwent a craniectomy to relieve excessive brain swelling and another procedure to ­evacuate a left occipital epidural hematoma. His recovery was complicated by increased intracranial pressure, ­deep-vein thrombosis, pneumonia, and other problems.

After about two months in the hospital, Mathews was discharged to an inpatient rehabilitation facility and underwent extensive speech, occupational, and physical therapy. His past medical expenses totaled approximately $1.3 million.

Mathews now suffers from aphasia, right-sided weakness, and seizures. He has difficulty expressing himself, answering questions, and carrying on a conversation. He must take anti-seizure medication and requires a walker. He also has vision loss in his right eye. He has no memory of the incident.

Mathews sued the bar, alleging that it failed to adequately train and supervise its employees. The plaintiff claimed that the lack of adequate training had permitted the verbal altercation to escalate into the physical fight in which he was injured. Mathews also alleged that the bar failed to provide adequate security guards to control the premises, both inside and out. The fact that the brawl occurred outside was irrelevant, the plaintiff asserted, because a bar’s duty to protect patrons may extend outside its doors.

The court found that Mathews was not competent to testify. It prohibited the playing of his videotaped deposition, which consisted mainly of yes or no answers. The court did permit the ­plaintiff to answer four short questions asking his name, whether he lives in Tennessee, whether he is married, and the name of his wife. The plaintiff struggled to answer the questions, demonstrating to the jury the severity of his injuries.

The defendant argued that security was adequate and that the establishment was a family bar that dates back to 1933. The bar also argued that it did not owe the plaintiff a duty of care because the incident occurred off the premises. Therefore, the defense contended, the plaintiff and the others were not patrons at the time. Finally, the bar argued that Mathews was intoxicated at the time and that he may have attempted to break up the fight by voluntarily injecting himself into the brawl.

Both sides presented life care plans, with the main difference being the level of attendant care needed. The plaintiff argued that his condition requires extensive care and presented plans with present values of up to $21 million. The defense disputed that the plaintiff’s needs were as extensive as he claimed, arguing that he spends considerable time alone, and presented a plan with a present value of $1 million.

The jury awarded $18.74 million, allocating fault at 60 percent to the bar and 40 percent to the plaintiff. The net award totals approximately $11.24 million. 

The defendant has filed a notice of appeal.

Citation: Mathews v. Jensens Liquor Store, Inc., No. 2013-CA-5112 (Fla. Cir. Ct. Duval Cnty. Oct. 31, 2016).

Plaintiff counsel: AAJ member Michael S. Pajcic, Robert J. Link, and Raymond P. Reid Jr., all of Jacksonville, Fla.

Plaintiff experts: Russell Kolins, premises security, Philadelphia; Alan H. Weintraub, brain and spinal injuries, Englewood, Colo.; Craig H. Lichtblau, vocational rehabilitation/life care planning, North Palm Beach, Fla.; and Frederick A. Raffa, economics, Orlando, Fla.

Defense experts: Al Ortenzo, premises security, Parkland, Fla.; Jeffrey Gelblum, psychiatry, Miami; Tannahill Glen, clinical neuropsychology, Jacksonville; Yale Caplan, forensic toxicology, Baltimore; and Michael Shahnasarian, vocational rehabilitation/life care planning, Tampa.