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Date: 01-07-2013

Case Style: Noah Shannon v. Kohls a/k/a Kohl's Illinois, Inc., aka Kohl's Department Store

Case Number: CJ-2012-1459

Judge: Bill Graves

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Ashley A. Manning

Defendant's Attorney: Matthew K. Felty and C. Austin Reams

Description: Noah Shannon sued Kohls a/k/a Kohl's Illinois, Inc., aka Kohl's Department Store on a negligence theory claiming:

1. Plaintiffs, Noah Shannon, Roni Shannon, and John Shannon, are citizens of Oklahoma and resident of Oklahoma County.

2. Defendant, Kohl’s, is a foreign corporation doing business in the State of Oklahoma.

FIRST CAUSE OF ACTION

3. That on or about the i’ day of May 2010, Plaintiff Noah Shannoa and his parents were at Kohl’s located at 9001 N.W. Passage Road in Oklahoma City, Oklahoma.

4. That Plaintiffs were visiting the Defendants location in Oklahoma City, Oklahoma and were in the children’s shoe section. As Plaintiff Noah Shannon was walking through this area, Plaintiff tripped and fell due to a shoe sizing mat located on the floor. The mat had been negligently maintained and positioned in the children’s shoe section of the store. Plaintiff fell forward striking his head on the corner of a shelf. This caused Plaintiff to suffer injuries.

5. That Defendant had a duty to maintain its premises in a safe condition for customers like Plaintiff who are invitees.

6. That Defendant had a duty to either remove or warn Plaintiff of dangers on the premises.

7. That in the exercise of reasonable care, the Defendant knew or should have known of the dangers surrounding this area.

8. That the incident complained of herein, were created by the Defendant or by Defendant’s employees who were acting within the course and scope of their employment at all times complained of

9. That Defendant failed to warn Plaintiff of the danger associated with the area and/or the warnings were inadequate.

10. That Defendant’s failure to maintain its premises in a safe condii ion proximately caused Plaintiffs injuries and damages.

11. That prior to said incident, Plaintiff Noah Shannon was in good health with a normal life expectancy, but as a direct and proximate result of Defendant’s negligence, Plaintiff has suffered injuries and damages for which he is entitled to recover.

12. Pursuant to the provisions of 12 O.S. § 3226(B)(2), Plaintiff submits this preliminary computation of damages sought in this lawsuit. In regards to Plaintiff Noah Shannon, this is an action for injuries suffered by a minor and Plaintiff advises ihat all damages recoverable by law are sought, including those listed in OUJI 3d 4.2. Under item (J), Plaintiffs medical bills incurred to date are in the approximate amount of $5,199.37, which amount is subject to increase. At this point, Plaintiff does not know the amount of future medical expenses. These items are among the elements for the jury to consider in fixing the amount of damages to award Plaintiff. Other than the amounts which Plaintiff has specifically identified, and which are capable of being ascertained to some degree of certainty, Plaintiff is unable to guess or speculate as to what amount of damages a jury might award. The elements for the jury to consider include the following:

A. Plaintiffs physical pain and suffering, past and future;

B. Plaintiff’s mental pain and suffering, past and future;

C. Plaintiffs age;

D. Plaintiff’s physical condition immediately before and after the accident;

E. The nature and extent of Plaintiff’s injuries;

F. Whether the injuries are permanent;

G, The physical impairment

H. The disfigurement;

I. The impairment of earning capacity after reaching the age of eighteen years;

J. The reasonable expenses of necessary medical care, treatment and services required after reaching the age of eighteen years.

13. Pursuant to the provisions of 12 O.S. § 3226(B)(2), Plaintiff submits this preliminary computation of damages sought in this lawsuit. In regards to Plaintiffs Roni and John Shamion, this is an action for damages suffered by their minor child and Plaintiffs advise that all damages recoverable by law are sought, including those listed in OUJI 3d 4.3. These items are among the elements for the jury to consider in fixing the amount of damages to award Plaintiffs. Other than the amounts which Plaintiff has specifically identified, and which are capable of being ascertained to some degree of certainty, Plaintiffs are unable to guess or speculate as to what amount of damages a jury might award. The elements for the jury to consider include the following:

A. The reasonable expenses of the necessary medical cart, treatment and services incurred in behalf the of minor child or will incur in the future from now until the minor child reaches the age of eighteen years;

B. Any loss of past earnings of the minor child;

C. Any future loss of earnings or impairment of earning capacity of the minor child from now until the age of eighteen years;

D. Any loss of past household and similar services which the minor child would have given the parents;

E. Any loss of household and similar services which the minor child would have given the parents between now and the age of eighteen years.

WHEREFORE, Plaintiffs pray for judgment in an amount in excess oF $10,000.00 for compensatory damages, punitive damages, together with attorneys’ fees, pre-judgment and post- judgment interest, costs of this action, and for such other relief as the Court may deem just and proper.

Defendant appeared and answered as follows:

I.

Defendant specifically denies each and every allegation in Plaintiffs’ Petition, unless expressly admitted herein.

II.

Defendant is without information sufficient to form a belief as to the truth and accuracy of the allegations of Paragraph 1 of Plaintiffs’ Petition, and therefore denies the same.

III.

Regarding the allegations of Paragraph 2 of Plaintiffs’ Petition, Defendant admits that it is a foreign corporation doing business in the State of Oklahoma. Defendant is without sufficient knowledge to form a belief regarding any remaining allegations of Paragraph 2 of Plaintiffs’ Petition, and therefore denies those allegations.

Iv.

Regarding the allegations of Paragraphs 3, 4, 5, 6, 7, 8, 9, 10, and 11 of Plaintiffs’ Petition, Defendant specifically denies that it breached any duty owed to Plaintiffs, denies that Defendant was negligent, and denies that Defendant proximately caused injuries or damages to Plaintiffs. Defendant further specifically denies that Plaintiff was injured by any hidden danger on Defendant’s premises. Regarding any and all remaining allegations of Paragraphs 3, 4, 5,6, 7, 8, 9, 10, and 11 of Plaintiffs’ Petition, Defendant is without sufficient knowledge to form a belief regarding those allegations, and therefore denies those allegations.

V.

Regarding the allegations of Paragraphs 12, 12.A, 12.B, 12.C, 12.D, 12.E, 12.F, 12.0, 12.H, 12.1, 12.J, 13, 13.A, 13.B, 13.C, 13.D, and 13.E, Defendant specifically denies that any act or omission on its part caused Plaintiffs to sustain any injury, expense or damage. Defendant is without information sufficient to form a belief as to the precise nature and extent of Plaintiff Noah Shannon’s, or Plaintiffs Roni and John Shannon’s, alleged injuries and/or medical expenses, and therefore denies those allegations. Defendant denies that the allegations of Paragraphs 12, t2.A, 12.B, 12.C, 12,D, 12.E, 12.F, l2.G, 12.H, 12.1, 12.J, 13, l3.A, l3.B, l3.C, 13.D, and l3.E. comply with 12 O.S. § 2008, 3226(A)(2), or any other applicable rule of pleading, civil procedure or discovery rule, and therefore denies those allegations. Regarding any and all remaining allegations of Paragraphs 12, 12.A, 12.B, 12.C, 12.D, 12.E, 12.F, 12.0, 12.H, 12.1, l2.J, t3, 13.A, 13.B, 13.C, t3.D, and 13.E of Plaintiffs’ Petition, Defendant is without sufficient knowledge to form a belief regarding those allegations, and therefore denies those allegations.

VI.

Defendant denies each and every allegation of Plaintiffs’ demands and requests for relief, and demands strict proof thereof. Defendant specifically denies the Plaintiffs are entitled to recover judgment in any amount for the injuries, damages, fees, costs, interest, or any other relief alleged in Plaintiffs’ Petition.

AFFIRMATIVE DEFENSES

1. Plaintiffs’ Petition fails to state a claim for which relief may be granted and therefore should be dismissed.

2. Plaintiffs’ Petition fails to comply with 12 O.S. § 2008 and should be dismissed.

3. Plaintiffs’ Petition fails to comply with 12 O.S. § 3226(A)(2) and should be dismissed.

4. Plaintiffs have failed to bring their action within the time permitted by law.

5. Plaintiffs’ alleged injuries resulted from the sole negligence of Plaintiffs and/or other persons, not Defendant.

6. Any injuries sustained by Plaintiffs at Defendant’s location were the result of Plaintiffs and/or other persons’ and/or parties failure to supervise and/or observe an open and obvious condition.

7. Plaintiffs’ contributory negligence and/or the negligence of others exceed the negligence of Defendant, which is expressly denied, barring Plaintiffs’ right to recovery as a matter of law.

8. The alleged accident and the alleged damages were caused by an intervening/superseding cause.

9. Defendant asserts that Plaintiffs’ negligence and/or the negligence of others will reduce andJor bar any obligation that Defendant, which is expressly denied, may owe Plaintiffs or others, if any.

10. The alleged accident was caused by the negligence of other persons or parties over whom Defendant had no control and for whose actions Defendant is not responsible.

11. Defendant specifically denies that it committed any acts of negligence which caused or contributed to the incident alleged by Plaintiffs.

12. Neither alleged actions nor alleged omissions on the part of Defendant were a direct or proximate cause of Plaintiffs’ alleged damages.

13. This alleged accident and the alleged damages allegedly arising therefrom were caused by or are the result of an open and obvious condition for which Defendant had no duty to remedy or warn.

14. Plaintiffs’ alleged accident was the result of a mere condition for which Defendant is not liable.

15. The alleged dangerous condition, which is denied by Defendant, was not known to Defendant and/or Defendant had no reason to know.

16. Any damages allegedly suffered by Plaintiffs, were caused by a pre-existing or post-developing unrelated medical condition, disease, illness, infection or injury of Plaintiffs, for which Defendant is not responsible.

17. Plaintiffs’ alleged damages were caused by normal complications associated with Plaintiffs health conditions, or were due to natural conditions existing within the body of Plaintiffs over which Defendant had no control.

18. Defendant fulfilled all duties owed to Plaintiffs.

17. Voluntary assumption of the risk.

18. Plaintiffs are not entitled to punitive damages, attorney fees and/or costs.

19. Defendant is not jointly or severally liable to Plaintiffs or others.

20. For flirther answer, if such be necessary, Defendant affirmatively alleges that joint and several liability is unconstitutional and violative of the provisions of the United States Constitution and the Constitution of the State of Oklahoma including, but not limited to, Defendant’s rights to due process and equal protection under the law.

21. Plaintiff fails to state a claim for punitive damages. Defendant further asserts that the criteria set out in 23 O.S. § 9 for the calculation and imposition of punitive damages, improperly emphasizes the financial, rather than the conduct, of Defendant and are thus violative of the equal protection provisions of the United States Constitution.

22. Defendant asserts that 23 O.S. § 9.1 is violative of the due process concerns of the United States Constitution because it requires the consideration of harm to non-parties allegedly caused by Defendant’s action.

23. Defendant asserts that punitive damages violate the criminal protection and due process clauses of the Constitutions of the United States and of the State of Oklahoma.

24. Plaintiffs’ claim, to the extent it seeks exemplary damages, violates Defendant’s rights to procedural due process under the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of Oklahoma, and therefore fails to state a cause of action upon which exemplary damages may be awarded.

25. Plaintiffs’ claim, to the extent it seeks exemplary damages, violates Defendant’s rights to protection from “excessive fines” as provided in the Eighth Amendment of the United States Constitution and the Constitution of the State of Oklahoma and violates Defendant’s rights to substantive due process provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of Oklahoma, and therefore fails to state a cause of action supporting the exemplary damage claim.

26. Plaintiffs’ claim, to the extent it seeks exemplary damages, violates Defendant’s rights to equal protection under the law and is otherwise unconstitutional under the United States Constitution and the Constitution of the State of Oklahoma.

27. Defendant reserves the right to supplement its answer and defenses as information obtained during discovery may warrant.

WHEREFORE, having fully answered, and submitted its defenses, Defendant Kohl’s Department Stores, Inc. prays that Plaintiffs take nothing by way of their Petition and that Defendant be permitted to go hence with such costs, fees and other relief as the Court deems just and proper.

Outcome: NOW, on this the 131h day of December, 2012, the Plaintiffs, Roni Shannon, individually and as natural mother, guardian and next friend of plaintiff Noah Shannon, a minor child, and John Shannon, individually and as natural father, guardian and next friend of plaintiff Noah Shannon, a minor child, appear in person and by and through their attorney of record, Ashley S. Manning, and the Defendant, Kohl’s a/k/a Kohl’s Illinois, Inc. a/k/a Kohl’s Department Stores, Inc., appears by and through its attorney, Matthew K. Felty of LYTLE, SOULE & CURLEE, P,c.

The parties announced and the Court finds in the above-styled cause of action a compromise and settlement has been reached between Roni Shannon, individually and as natural mother, guardian and next friend of plaintiff Noah Shannon, a minor child, and John Shannon, individually and as natural father, guardian and next friend of plaintiff Noah Shannon, a minor child, and Kohl’s a/k/a Kohl’s Illinois, Inc. a/k/a Kohl’s Department Stores, Inc., as Defendant.

THE COURT FINDS upon hearing the facts and details of this case and the compromise and settlement:

(I) Plaintiff. Roni Shannon, is the natural mother, guardian and next friend of the minor child, Plaintiff, Noah Shannon;

(2) Plaintiff, John Shannon, is the natural father, guardian and next friend of the minor child, Plaintiff, Noah Shannon;

(3) Said settlement in the total amount of $10,000.00 (TEN-THOUSAND DOLLARS 0/100) is a fair and reasonable one in light of the disputed liability and injuries alleged;

(4) Said settlement is a full, final and complete adjudication of the action forming the basis for the above-captioned case;

(5) The Plaintiffs understand that they have the right to a trial, and that they are relinquishing their right to a trial and the right to bring any further claim for the subject injuries against the Defendant in the future;

(6) The Plaintiffs have entered into the settlement voluntarily and of their own free will;

(7) Said settlement is in the best interests of the minor child, Plaintiff, Noah Shannon; and,

(8) Said settlement should be APPROVED in light of the foregoing facts.

THE COURT FURTHER FINDS with respect to distribution of the proceeds of the total settlement amount stated in paragraph one (1) above:

(9) Plaintiffs’ attorney, Ms. Ashley S. Manning of the HOMSEY LAW CENTER, has incurred costs in the amount of $328.25 (THREE HUNDRED AND TWENTY-EIGHT DOLLARS 25/100) in connection with the litigation of this case and that fees in the amount of $3,000.00 (THREE THOUSAND DOLLARS 0/100) should be APPROVED;

(10) A physician’s lien (“Lien”) in the amount of $3,883.83 (TI-IREE THOUSAND AND EIGHT-HUNDRED AND EIGHTY-THREE DOLLARS 83/100) was filed with the Oklahoma County Clerk on March 20, 2012, Book No. RE11873, Page No. 931, by Steven D. Meltzner, D.M.D. including $72.00 (SEVENTY-TWO DOLLARS 0/100) due and owing to BlueCross/BlueShield. To collect thereon, said Lien was assigned to Credit Collections, Inc. (4CCI”) which thereafter initiated suit against John and Roni Shannon, parents of the minor plaintiff in this action, in the District Court for Oklahoma County, Case No. CS-2012-4490. To date, no judgment has been taken against John and Roni Shannon by CCL With the assistance of additional counsel, Tearsa Storms Olson, John and Roni Shannon have entered into a workout arrangement with CCI. Pursuant to said agreement, John and Roni Shannon are scheduled to tender three (3) payments to CCI. Payment No. I became due and owing on November 30, 2012. On or about November 30, 2012, John and Roni Shannon tendered $1,405.24 (ONE THOUSAND AND FOUR-HUNDRED AND FIVE DOLLARS 24/100) to Robinson & Hoover, attorneys of record for CCI. A total of $270.70 (TWO HUNDRED AND SEVENTY DOLLARS 70/100) of Payment No. I was applied to court costs incurred in connection with Case No. CS-20 12-4490. Thereafter, a total amount of $1,134.54 (ONE THOUSAND AND ONE HUNDRED AND THIRTY-FOUR DOLLARS 54/100) was applied to the principal amount of the Lien. After application thereof, said Lien now totals $2,749.29 (TWO THOUSAND AND SEVEN HUNDRED AND FORTY-NINE DOLLARS 29/100). Proceeds of the settlement will be tendered in the final stated amount of the Lien;

(11) Plaintiffs Roni and John Shannon have incurred $1,298.98 in out-of-pocket expenses in connection with Noah Shannon’s medical needs related to this case.

IN ACCORDANCE WITH THE FINDINGS STATED ABOVE AND PURSUANT TO 12 O.S. § 83, THE COURT HEREBY ORDERS that the proceeds of said settlement shall be distributed as follows:

(1) A physicians lien in the amount of $2,749.29 held by CREDIT COLLECTIONS, INC. on assignment from STEVEN D. MELTZNER, D.M.D., is hereby authorized to be paid by Plaintiffs and/or their attorneys from the proceeds of the settlement of $10,000.00 (TEN THOUSAND DOLLARS 0/1 00);

(2) To BLUECROSS/BLUESI-IIELD, the sum of $72.00 is hereby authorized to be paid by Plaintiffs and/or their attorneys from the proceeds of the settlement of $10,000.00 (TEN THOUSAND DOLLARS 0/100);

(3) ANY AND ALL OTFIER STATUTORY LIENS are hereby authorized to be paid by Plaintiffs and/or their attorneys from the proceeds of the settlement of $10,000.00 (TEN THOUSAND DOLLARS 0/100);

(4) To ASFILEY S. MANNING of the HOMSEY LAW CENTER, the sum of $3,328.25. for attorney’s fees and costs;

(5) To RONI and JOHN SHANNON, the sum of$l,298.98 in out-of-pocket expenses incurred in connection with Noah Shannon’s medical needs related to this case; and,

(6) To NOAH SHANNON, a minor child, the remaining sum of sum of $2,551.48 which shall be deposited with WEOKIE CREDIT UNION, having trust powers, as the repository for the settlement funds. Such funds and interest earned shall remain on deposit at WEOKIE CREDIT UNION and shall not be withdravn, until he attains the age of eighteen (18) years or further order of the Court.

Ashley S. Manning, the Plaintiffs’ attorney of record, shall deliver and verify that a check in the amount of $2,551.48 for the minor child Noah Shannon will be so deposited in WEOKTE CREDIT UNION. It is the further responsibility of Ms. Manning to obtain and file with the clerk a receipt, in the form attached hereto, within twenty (20) days of the date of this Order,

WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED, that the settlement between the parties is fair and reasonable and in the best interests of the minor Plaintiff, Noah Shannon, and is thus hereby approved.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED, that the proceeds received by the Plaintiffs, Roni Shannon, individually and as natural mother, guardian and next friend of plaintiff Noah Shannon, a minor child, and John Shannon, individually and as natural father, guardian and next friend of plaintiff Noah Shannon, a minor child, to execute a release in full of all claims and a dismissal with prejudice of this action.

This case is transferred to the juvenile division for further supervision concerning the withdrawal of funds from the depository.

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