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Pasco County, FL

The plaintiff contended that the defendants, a McDonald’s restaurant that had a 24- hour drive-thru, and the landlord of the commercial property, negligently failed to provide an off-duty police officer or other security guard at the premises despite approximately ________ ________ calls made from this property in the preceding three-year period. The plaintiff contended that the absence of a security guard resulted in the decedent being placed in a "sleeper" choke hold by the assailant, who had significant martial arts training and experience, and killed when the assailant continued to keep him in the hold for at least three minutes after he lost consciousness. The Court initially held that the actions of the assailant were intentional and as such, he should not be on the jury sheet. The Court reversed this ruling during post trial motions and ordered a new trial. The plaintiff has appealed this ruling.

The evidence disclosed that the decedent was a passenger in an SUV that was behind another SUV in the drive-thru lane. The decedent became impatient because of the extended time the party in front was taking and blew the horn. The assailant and his friend then came to the decedent’s car, had some words and it was undisputed that the decedent did not exit the vehicle. The plaintiff maintained that the assailant’s vehicle then pulled ahead and as the decedent’s vehicle was driving in the parking lot, the windshield was pelted with something. The host driver exited to check his window and the assailant and his friend approached the vehicle with one holding a beer bottle and the other a "mag" flashlight. The decedent exited the vehicle and take out window employees of the defendant testified that after the assailant pushed the decedent three times, he placed him in the choke hold. The plaintiff maintained that although the decedent appeared to lose consciousness within approximately 30 seconds, which contention was supported by the observations of drive-up windows employees of the defendant, including one who was a veteran with martial arts training, and testified that he recognized the hold, the assailant continued to keep the decedent in this hold for at least three additional minutes.

The plaintiff contended that in view of the history of more than ________ ________ calls in the preceding three-year period, the defendant clearly should have stationed a security guard at the premises. The plaintiff established that this establishment was virtually the only one open all night in the community, that people were allowed to eat in the parking lot and frequently congregated in the lot and maintained that such factors rendered the need for a guard particularly great.

The plaintiff also asserted that on the ________ tape from this incident, the workers could be heard to be pleading with the assailant that the decedent was already unconscious and that he should leave him alone. The plaintiff contended that if a guard would have been stationed, he or she would have interceded before the choke hold became fatal. The defense denied that a guard was necessary.

The plaintiff contended that the jury should consider that the defendant employed security guards in other establishments in the area with allegedly similar histories. The defendants maintained that the purposes of guards in the other properties was to prevent robberies and/or to remove homeless people who might prove to be a threat to patrons, denying that such considerations were present in the instant case.

The parents each testified that the decedent was their only child and that they were unable to conceive him until almost 15 years of marriage. The parents referred to the decedent as their "miracle baby." The parents related that the family was very close and that they rarely missed attending one of his sporting events. The parents’ claims for mental anguish were the sole counts and the plaintiff made no economic claims.

The jury found the defendants 2/3 negligent, the decedent 1/3 comparatively negligent, and rendered gross awards of $________ to each parent.

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