Date: 10-12-2012

Case Style: Kathy Barker v. El Tequila, LLC

Case Number: CJ-2011-6200

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: J. Gregory LaFevers and William Francis Smith

Defendant's Attorney: William Vanburkleo

Description: Kathy Barker sued El Tequila, LLC on a premises liability negligence theory claiming:

1) On or about the 30E1i day of June, 2011, at the Defendant’s restaurant in Broken Arrow, Oklahoma, the Plaintiff was severely injured in a fall on the Defendant’s premises.

2) The Plaintiff tripped over a hidden defect in the Defendant’s sidewalk.

3) The Defendant breached its duty to use ordinary care to keep its premises in a reasonably safe condition for the use of its inv1ees.

4) The Defendant violated its duty to either remove or warn the Plaintiff of the hidden danger on the premises that the Defendant either actually knew about, or should have known about in the exercise of ordinary care, and/or was created by it or its agents and/or employees.

5) Additionally, the Defendant was negligent in the causation of the Plaintiffs injuries.

6) As a result of the above acts and omissions, the Plaintiff suffered serious injuries, primarily to her head, face, teeth, arm and knee.

7) The Plaintiff has incurred medical expenses for reasonable and necessary medical care necessitated by these injuries, and suffered great pain of body and mind as well as a loss of income.

8) The Defendant was guilty of reckless disregard for the rights of others, acted intentionally and with malice towards others, and!or engaged in conduct life threatening to humans.

WHEREFORE, Plaintiff prays for judgment against the Defendant for actual damages against the Defendant in an amount in excess of $75,000, punitive damages in an amount in excess of $75,000, together with interest and the costs of this action.

El Tequila answered as follows:

The Defendant, EL TEQUILA, appears by and through its attorney of record, Wm. Baron VanBurkleo and for its Answer to Plaintiff’s Amended Petition alleges and states as follows:

1.

Defendant generally and specifically denies each and every material allegation contained in the Amended Petition filed on behalf of the Plaintiff except for those which may be specifically admitted hereinafter.

2.

Defendant denies the allegations contained within numbered Paragraphs 3; 4; Plaintiff’s Amended Petition.
5 nd 8 of Plaintiff's Amended Petition.

ADDITIONAL RESPONSES

4.

Defendant specifically denies that a defect existed in the premises at the time of Plaintiff’s alleged accident.

5.

For further answer and defense, the condition about which Plaintiff complains was an open and obvious condition, therefore, Plaintiff is precluded from recovering against Defendant.

6.

Defendant denies that they, their agents, servants or employees were guilty of negligence.

7.

Should Defendant be found guilty of negligence, which is not admitted but is expressly denied, Defendant states that its negligence was not the cause of Plaintiff’s alleged injury and damage, if any.

8.

For further answer and defense, Defendant would state the Plaintiff failed to use ordinary care with due regard to the existing conditions to prevent injury to herself.

9.

For further answer and defense, Defendant would state the Plaintiff failed to keep a proper lookout.

10.

For further answer and defense, Defendant would state that no recovery of damages should be allowed for any losses that the Plaintiff reasonably could have avoided and failed to do so.

11.

Plaintiff’s comparative negligence bars any action against this Defendant.

12.

For further answer and defense, the Plaintiff’s Amended Petition fails to state a claim against Defendant for which relief can be granted.

13.

For further answer and defense, Defendant states that the injuries complained of in Plaintiff’s Amended Petition may be the result of preexisting health problems that were neither caused nor aggravated by this Defendant and for which this Defendant is not liable.

14.

For further answer and defense, Defendant states that the direct cause of Plaintiff’s occurrence was by the negligence of third parties over whom this Defendant had no control, and for those acts this Defendant is not responsible.

15.

Should Defendant be found guilty of negligence, which is not admitted but expressly denied, Defendant states that the negligence merely established a condition. Defendantftirther states that this condition was not the cause of the Plaintiff’s alleged injury and damage, if any. Defendant states that Plaintiff had the last clear chance to avoid the accident and that Plaintiff’s negligence in failing to do so was the cause of the Plaintiff’s alleged injury and damage, if any.

16.

Inasmuch as Plaintiff prays for punitive damages, an award of such damages should be denied for the reason that such au award violates the due process requirements of the Fourteenth Amendment to the Constitution of the United States, and Article 2, Section 6; Article 2, Section 7; and Article 5, Section 59 of the Constitution of the State of Oklahoma, as well as the Equal Protection Cause of the Fourteenth Amendment of the Constitution of the United States and the Articles of the Constitution of the State of Oklahoma in that the awarding of disproportionate judgments against defendants who commit similar offenses resulting in similar injury, but who differ only in material wealth, constitutes an arbitrary and invidious discrimination prohibited by said equal protection of said Equal Protection Clause of the respective Constitutions set forth.

17.

For further answer and defense, Defendant reserves the right to plead additional affirmative defenses and amend its Answer upon the completion of discovery.

WHEREFORE, premises considered, Defendant, EL TEQUILA, prays for judgment in its favor and against the Plaintiff, together with its costs of this action and such other and farther relief as the Court deems is just and equitable.

JURY TRIAL DEMANDED

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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