Captain’s BBQ at Bing’s Landing has been contending with plenty of legal headaches with Flagler County government, its landlord, as the two sides wrangle over the restaurant’s future location, and the county’s responsibilities to ensure the business’ viability. Now add one more: a trial is scheduled for mid-June pitting Captain’s against a customer who sued the restaurant two years ago for negligence. The customer is seeking $39,000 in past medical expenses.
The county is also named in the suit, and is a co-defendant alongside Captain’s–a small irony, considering Captain’s recent talk of potential legal action against the county over the restaurant location issue. Flagler County commissioners may once again attempt to decide that issue at their next meeting the morning of June 3. The negligence matter is almost entirely separate. Absent a settlement, which is still very possible (Conroy Simberg, Captain’s attorney, notified the court on May 23 of the possibility of a “pending settlement”) the trial would be the culmination of a suit more than two years old, it would start on June 17 in Flagler County Circuit Court, and is expected to take four days.
Businesses routinely face negligence suits when customers fall or get hurt on the premises. The more notable elements in this case are its concurrence with Captain’s other challenges, its alignment of two potential antagonists on the same side, and the way the case concretely illustrates the county’s responsibilities for the building, which are at the heart of the larger issue before county commissioners.
The case also places the county and Captain’s in the odd if partly unspoken position of arguing that the building is not accident-prone–Captain’s legal strategy is actually to argue that there’s never been an slip-and-fall accident there–even as both the county and Captain’s are arguing in the broader issue over the lease that the building’s decrepit shape is a liability.
The case dates back to an incident on Aug. 4, 2016. Imad Mansour, 68 at the time, was a customer at Captain’s. When he left, he slipped on stairs and fell, suffering “vertebral fractures and other injuries, pain, disfigurement, disability,” according to the complaint filed in March 2017. Mansour charged negligence on Captain’s part as well as on the county’s, since the county is the landlord and has maintained the facility since signing the 2011 lease with Captain’s: The county “negligently constructed its outside wooden steps on the North side of the building by not putting any non-slip tread on its steps,” Mansour’s complaint alleged, “and configuring the steps so that mildew, grime and water would accumulate on the steps.” Mansour is represented by Ormond Beach attorney Robert Elton.
Captain’s denied responsibility, essentially blaming Mansour: he had a “duty to exercise due care in his own regard but, notwithstanding said duty, he so negligently and carelessly conducted himself in the premises that his conduct was the sole proximate cause of, or a contributing cause” to the fall, the response by Captain’s attorney Conroy Simberg reads. The conditions that led to the fall were “obvious” to anyone, the response states, welcoming a jury trial. The restaurant also noted that Mansour’s bills had been covered by insurance (Medicare).
The county hired Michael Roper of Orlando to represent it. The county’s answer borrowed arguments from Captain’s: Mansour fell due to his own negligence. Flagler denied any responsibility, noting in part that even as Mansour himself had alleged, the conditions that led to the fall were obvious, so the county was “under no duty to warn” of the conditions. The county also argued that the condition Mansour complained of on the steps “is so commonly expected on such premises, that there is no legal duty to warn of such said conditions.” The county did not deny all liability, but said any liability on the county’s part “should be reduced by the same percentage of the negligence of the third parties” involved–namely, Captain’s and Mansour himself.
The three sides then spent month after month in legal maneuvers and demands for such evidence as parties’ tax returns, what footwear and clothing Mansour was wearing, what he bought at Captain’s the day of the fall, medical bills, nursing bills, drug bills, and from Mansour to the county, one request that would have rich cross-over appeal in the other matter involving Captain’s: “The entire Flagler County Building Department file related to the construction of Captain’s Bait, Tackle & BBQ, to include all permits, inspections and certificates of occupancy.” (The county countered with its own requests.)
Flagler made a settlement proposal to Mansour last December. It appears not to have borne fruit. By April, Mansour’s attorney was requesting from Captain’s all materials that could be used to impeach him, suggesting that by then the proceedings had become quite antagonistic, as is usual in cases nearing trial. Captain’s last month was making a motion asking the court to limit Mansour’s evidence of medical expenses “only in the amount paid by Medicare and accepted by [Mansour’s] medical providers,” essentially excluding all other incidental or out of pocket expenses that Mansour may argue were related to his fall.
Captain’s also wanted to prevent any testimony relaying a paramedic’s remark that he was surprised no one had slipped before (Mansour’s wife had relayed the remark during a deposition), or the introduction of a text by Captain’s co-owner Chris Herrera, who’d written Mike Dickson, a county employee, that “he believed stated that they [Captain’s] were applying this non-skid tape to the steps.” Non-skid tape was in fact applied “at some point after” Mansour’s accident, Captain’s concedes, and it did so as a “remedial measure,” but it is seeking to exclude the fact from trial. The reason, as argued by Conroy Simberg, Captain’s attorney: The “rule of exclusion clearly prohibits use of subsequent changes as a tacit admission of prior negligence.”
Two weeks ago Mansour filed his own motion to seek certain exclusions, starting with his own history of prior litigation, or that there’d never been any such accidents at Captain’s before Mansour’s fall, among 22 such requests.
On Friday, all three sides filed a joint pre-trial statement summarizing the case and the questions to be tried and the motions yet to be resolved by the judge before trial. Circuit Judge Terence Perkins has been presiding over the case. Pending settlement aside, the county has asked for the trial to be delayed–to enable further discovery. On the other hand, Mansour’s attorney filed a motion to cancel a hearing scheduled for Thursday and a motion for summary judgment in the case, again suggesting the possibility of a settlement.