Date of Verdict: February 13.
Court and Case No.: C.P. Philadelphia No. 101201679.
Judge: Ricardo C. Jackson.
Type of Action: Premises liability.
Injuries: Arm, head, neck and shoulder pain and physical limitations.
Plaintiffs Counsel: Joseph J. Aversa, Aversa & Linn, Philadelphia.
Defense Counsel: Dennis M. Marconi, The Law Offices of Barnaba & Marconi, Trenton, N.J.
Plaintiffs Expert: Dr. Stephen Allon, orthopedic surgery, Philadelphia.
Defense Expert: Dr. Joseph Bernstein, orthopedic surgery, Philadelphia.
Comment: On February 23, 2010, plaintiff Lori Donahue, 41, and her husband, along with their two adult sons, were attending a film at the American Multi-Cinema Inc. (AMC) theater at the Franklin Mills Mall in Philadelphia.
Donahue alleged that during the course of the film, nearby patrons were using their cellphones, which prompted the Donahues to ask them to stop using their devices. The patrons complied; however, sometime later, they resumed using their phones, which again prompted the Donahues to request them to stop. This triggered an argument between the parties, and the patrons subsequently left the theater.
Donahue alleged that after the movie, she and her family members exited the theater and entered the lobby area, at which time they were jumped and accosted by the patrons’ relatives: Doris Salcedo, Francisco Salcedo, Zoranda Echevarria and Alimbu Echevarria.
Donahue claimed that she was initially punched in the head by a large man, which knocked her to the ground. She then got up, at which point she was ambushed by three women who cornered her and began punching her and pulling her hair. The assault lasted for a minute until police officers, who were outside the theater’s box office for another incident, intervened. Donahue claimed that she suffered a right (non-dominant) rotator cuff tear and a cervical-disc herniation.
Donahue sued AMC and mall owner Simon Property Group Inc., which was later voluntarily dismissed, on the theory of premises liability (inadequate or negligent security). AMC brought in the alleged assailants as third-party defendants, and they were voluntarily dismissed pretrial after failing to answer a complaint and retain counsel. According to Donahue, about a year prior to the incident (which was on a weeknight), AMC had at least one security officer in place in its lobby on a daily basis; however, the decision was made to only implement theater security on the weekends. Donahue’s counsel maintained that a security guard should have been present in the lobby on the evening of the attack to deter aggressive behavior. Donahue’s counsel further faulted AMC for allowing individuals to enter through an exit door and into the theater lobby and loiter there without ever purchasing a ticket. Video surveillance of the attack was played to the jury.
AMC argued that it did not have a duty to provide a security officer on the premises during a weeknight because the small volume of attendees did not warrant security personnel.
The next day, Donahue, with complaints of pain to her neck and right shoulder, presented to an emergency room, where she was examined and released. With no health insurance, Donahue subsequently presented to two other emergency rooms and eventually came under the care of a family-medicine facility in Philadelphia, where she underwent physical therapy for seven months. During that time she was referred to an orthopedic surgeon who ordered an MRI and EMG of her neck and shoulder. The physician diagnosed her with a partial tear of the distal supraspinatus tendon, herniation at C5-6, and radiculopathy, as Donahue experienced radicular pain in her right arm. She was then referred to a shoulder specialist who she could not see because of lack of health coverage. No further treatment was administered.
Donahue’s treating orthopedic surgeon testified that she suffered permanent injuries in her neck and shoulder. Donahue said that she continues to experience pain and limitations in her neck and shoulder, which have limited her in performing household activities and recreational activities, such as riding a bike. She also testified that she is reluctant in engaging in social activities with her husband and sons because of anxiety of a future attack. Donahue sought to recover unspecified amounts in non-economic damages for past and future pain and suffering, while her husband sought a consortium claim.
The defense’s retained expert in orthopedic surgery agreed that Donahue had physical problems but attributed her injuries to pre-existing, degenerative conditions.
The jury determined that AMC was negligent and its negligence was a factual cause of harm to Donahue, who was awarded an amount of $122,500 — $22,500 for past medical costs and $100,000 in non-economic damages.
This report is based on information that was provided by plaintiffs counsel. Defense counsel did not respond to the reporter’s phone calls. The alleged assailant third-party defendants were not asked to contribute.
— This report first appeared in VerdictSearch Pennsylvania, a publication of ALM •