$1,125,000 recovery – plaintiff waitress told by defendant’s manager that she and ex-boyfriend, who were having loud argument at end of plaintiff’s shift, to leave the premises – plaintiff shot in mouth arm and shoulder by ex-boyfriend outside the diner – bullet lodges near spine and cannot be removed – plaintiff also suffers extensive nerve damage in arm and clawing of hand – attack occurs several days before plaintiff scheduled to testify in criminal trial against ex-boyfriend on assault charges of which defendant diner’s manager is aware – serious injury or death likely to occur and case not barred by compensation – $750,000 on this aspect plaintiff also files lad claim based on theory that plaintiff is being harassed by assailant and defendant failed to take reasonable steps to protect her – plaintiff obtains $200,000 based on lad claim – plaintiff also receives $175,000 from comp carrier on portion of policy providing for payment not otherwise covered by comp sustained by worker while at place of employment.

Monmouth County, New Jersey

This was an action involving a woman in her late 30s, who was working as a waitress at the defendant diner. The evidence disclosed that around the time the plaintiff’s shift ended at 3 a.m. on a Sat, the plaintiff’s ex-boyfriend, against whom the plaintiff was scheduled to testify on Monday regarding criminal charges of assault, permitted access to the diner. The manager, who was in the back at the time, was aware of the alleged prior incident and that the plaintiff was hospitalized, and that the plaintiff was due to testify at the upcoming criminal trial.The plaintiff contended that after a loud verbal argument erupted between the plaintiff and her ex-boyfriend, the manager directed them both to leave the premises. The plaintiff contended that while they were still on the diner property, the plaintiff was shot three times by her ex-boyfriend.

The plaintiff contended that the diner provided negligent security and that the manager clearly acted improperly in directing the plaintiff to leave when it was apparent that she was in danger. The plaintiff would have argued under a Laidlow type theory that the defendant should not have the benefit of the Workers’ Compensation bar in this situation in which the allegedly negligent action was substantially certain to lead to serious injury or death.

The plaintiff also contended, under a LAD theory that the plaintiff was harassed by the assailant and that the employer had a duty under this theory to provide protection.

The manager denied that he directed the plaintiff to leave and contended that leaving with him was her choice.

The plaintiff would have argued that this testimony should clearly be rejected and that it was evident that the plaintiff would not leave voluntarily with the ex-boyfriend.

The defendant would have also contended that the plaintiff could well have called the police on her cell phone. The plaintiff would have countered that since the assailant was physically close to her at all times, she could not use her cell phone and could not call the police.

The evidence disclosed that shortly after the plaintiff and assailant left the premises, three shots rang out. The plaintiff was struck in the mouth, arm and shoulder. One of the bullets that struck her in the arm caused extensive nerve damage in the arm and hand. The plaintiff maintained that she will permanently suffer numbness and a clawing of the dominant hand. A bullet lodged in an area close to the spine and cannot be removed. The bullet wound to the mouth and arm caused moderate scarring.

The defendant diner had $5,000,000 in general liability insurance. The plaintiff obtained $750,000 from this carrier, $200,000 under the LAD claim and $175,000 from the compensation carrier under the section of the policy that provided coverage for injuries to workers occurring at the place of employment and not otherwise covered under the Worker’s Compensation policy.

Reference

Plaintiff’s domestic violence expert: Cynthia Lischik, PhD from Clarksburg, NJ. Plaintiff’s functional capacity testing expert: Ellen Rader Smith from Towaco, NJ. Plaintiff’s orthopedic surgeon expert: Cary Skolnick, MD from Manalapan, NJ. Plaintiff’s security expert: Norman Bates from Boston, MA.

Culinari vs. Red Oak Diner, et al.. Docket no. Mon-L-477-13, 12-00-16.

Attorney for plaintiff : Frank S. Gaudio of Miller & Gaudio, PC in Red Bank, NJ.

Commentary:

It is interesting that the plaintiff was able to resolve the case against the diner employer for a substantial sum despite the impediments, including the compensation bar, and the fact that the defendant was not the assailant. The plaintiff argued that the employer should be liable under a Laidlow type theory because it was substantially certain that death or serious injury would result from the failure of the diner to provide adequate security. The plaintiff was able to obtain an additional $200,000 because of the alleged LAD violations and $175,000 from the compensation insurance policy that provided coverage for injuries to workers occurring at the place of employment that was not otherwise covered under the policy. Finally, it should be noted that the settlement was achieved after four mediation sessions before ret. Judge Clyne