Tolenoa, Beltran-Walker & Walker v. Denny’s, Inc. & Hoffert

Largest Verdict in Washington State
Result – $46.4 Million

Seattle trial lawyers win $46 million verdict against Denny’s Corporation in premises liability/negligent security case

On January 21, 2007, Steven Tolenoa, a 27 year-old man, and his brother Wilven went to the Kent Denny’s in Kent, WA at about 2:00 a.m. on a Saturday night/ Sunday morning to have a Grand Slam breakfast after working a half-day and playing softball and drinking some beer at a local pub. The “bar rush” at the Kent Denny’s started at 2:00 a.m. Denny’s, Inc. has 1,600 restaurants nationwide, with 50 restaurants in the state of Washington, and all are open 24/7. The “bar rush” is when a predictable large group of rowdy and drunk people “rush” to Denny’s after the bars & lounges close at about 2:00 a.m. to keep the night going. Frank Evans (the shooter) had been at HD Hotspurs, a hip hop club in Kent, WA, drinking with friends. At about 1:45 a.m., he got into a verbal altercation with two men in the parking lot of HD Hotspurs which was defused by a security guard and two off-duty Kent Police officers, before it escalated into physical violence. Evans left and went to Denny’s, about 2 miles away, which is open 24/7. He entered the restaurant and threatened to “smoke everyone” at Denny’s, picked two fights, got pummeled, left Denny’s with a bloody lip and hurt ego, got a gun from his car and returned and shot off eleven rounds, injuring 5 customers. Tolenoa was hit by two bullets and rendered a quadriplegic due to a severed spinal cord at C6, plus other injuries. Lisa Beltran-Walker was hit by a bullet in the back of her leg which hit only soft tissue. Carl Walker was traumatized by having a gun in his face and concern for his wife’s life, but was not shot. Lisa Beltran-Walker is now okay physically but has some residual numbness in her leg and emotional stress; the same is true for Carl Walker. Steven Tolenoa will never walk or work again, his life will be spent in a bed or a wheelchair. His life expectancy is another 45 years.

In January and February, 2011, this case was tried on the legal duty of an owner of commercial premises (in this case, a 24/7restaurant) to protect its customers from reasonably foreseeable harm and criminal violence. See Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997). See also Hutchins v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 220, 802 P.2d 1360 (1991); Kim v. Budget Rent A Car Systems, Inc., 143 Wn.2d 190, 15 P.3d 1283 (2001); Parrilla v. King County, 138 Wn. App. 427, 436-37, 157 P.3d 879 (2007); Elsa Robb v. City of Seattle, 2011 Wash. App. LEXIS 353 (Wash. Ct. App., Division One, Jan. 14, 2011).The Kent Denny’s restaurant had a history of violent acts during the “late night” shift, particularly on Friday and Saturday nights during the “bar rush.” There were 1,136 calls made to 911 from the Kent Denny’s and police responses in the two years prior to the shooting. There were no security guards or off-duty Kent Police Officers, and the Denny’s manager was in the back of the restaurant at the closed bar playing video games when the bar rush commenced at 2:00 a.m. after the local bars closed. Denny’s corporate management in Spartanburg, South Carolina was well-aware of recurring violence at its 1,600 restaurants during the bar rush, but chose to do nothing regarding security because the late night produced 25% of Denny’s profits. Denny’s chose “profits over people.” Denny’s should have hired security guards, off-duty police or closed the restaurant during the two hours of the bar rush (2:00 – 4:00 a.m.). Denny’s is the only nationwide family-style sit-down restaurant open 24/7.

The court ordered the Denny’s Chair of the Board of Directors/CEO and its Chief Financial Officer to appear and testify at trial in King County, WA. They testified that they did not know about any violence, and the issue of violence never came before the Board of Directors–a boldface lie. They testified that they had no corporate plan to remedy the “problem” because there was no “problem.”

The employees of the Kent Denny’s were scared to go to work during the bar rush.  The manager of the late night shift said it was “scary” to work at the Kent Denny’s during the bar rush and they were always on the verge of calling 911. He was deeply concerned for the safety of his employees and his customers. He even got price quotes from the Kent Police Department for two off-duty officers and a patrol car, and advised the general manager. The managers and employees asked for security and got a deaf ear from the General Manager and the Area Manager. Corporate management in Spartanburg, South Carolina would not acknowledge a problem or risk.

The trial lasted 3½ weeks, and for jury deliberated for 6 days, including a 2 day weekend. The plaintiffs called 26 witnesses to the stand. The defendants called seven witnesses, none of which were employed by Denny’s. They did not call the manager-on-duty who was in the restaurant, but missing in action, at the time of the shooting.
See attached Special Verdict Form awarding $46,417,739, dated 2/7/11, and Judgment filed on 2/9/11.

King County Superior Court Judge Middaugh ruled that the Tegman case decided in 2003 was not applicable and gave a Rollins-type instruction on the allocation of damages between Denny’s and the non-party shooter/Frank Evans who is in the Washington State Penitentiary in Walla Walla, serving a 63 year sentence. See Tegman v. Accident & Med Investigations, Inc., 150 Wn.2d 102 (2003), and Rollins v. King County Metro Transit, 148 Wn. App. 370, 382-83,199 P.3d 499 (2009). Judge Middaugh denied defendants’ request to segregate damages on the verdict form between the intentional actor (shooter) and negligent actor (Denny’s, Inc.). Interestingly the jury said they had no difficulty whatsoever with this Rollins instruction. It is believed that this is the first case involving both negligent and intentional conduct to go to the jury with a non-party intentional tortfeasor and a Rollins instruction, since Rollins was decided in 2009.