Wednesday, July 02, 2008

Jury to Drunk Plaintiff: Forget It! No Money

By Joline Gutierrez Krueger
Journal Staff Writer
       An Albuquerque man has lost a lawsuit that claimed McDonald’s should have essentially protected him from himself by providing security for guys who, like him, show up drunk past midnight and start flirting with knife-wielding women in the drive-through.
    Steven Pohl filed a complaint for damages against the fast-food giant, contending that a security guard should have been on the premises of its Wyoming and Central NE location when he was struck and dragged by the vehicle of a woman who was trying to flee his advances and those of his equally intoxicated companions.
    Among those companions was Pohl’s uncle, Patrick Pohl, an Albuquerque police officer.
    McDonald’s, the lawsuit contended, “owed a duty to exercise ordinary care for the safety of their invitees.”
    Jurors thought otherwise, taking little time to find in favor of McDonald’s late last week after a weeklong hearing before state District Judge Clay Campbell.
    “Jurors felt that to have guards at a McDonald’s shouldn’t be necessary, and that Mr. Pohl should have stayed in his vehicle, which we never denied,” Pohl’s attorney, Gene Chavez, told the Journal. “But it was our position that even if McDonald’s was 5 percent negligent and our client the more negligent, that McDonald’s was still in the wrong.”
    Chavez called the jury “calloused and business-friendly.”
    A call to McDonald’s attorney, Lisa Chavez Ortega, was not returned.
    According to three volumes of court documents, Pohl and his four companions shared a six-pack of beer on Feb. 1, 2003, before going to Chapter II, a strip club at Wyoming and Menaul NE, for a farewell get-together for a relative who was shipping off to Iraq.
    At the club, four of the men, including Pohl, drank about four pitchers of beer among themselves and spent between $60 to $100 in the 2½ hours they were there before deciding to go to the McDonald’s. Pohl also stated in a deposition that he may have consumed two pitchers of beer by himself.
    Vicente Licea, the designated driver that night, did not drink, but the others were “relatively” intoxicated, according to depositions from several of the men.
    While the men were waiting in the drive-thru lane for their order, Pohl said he got out of the vehicle to make a call on his cell phone because it was too noisy in the car. Pohl said he saw two women drive up in the drive-thru lane and decided to approach their car because they were “very, very pretty.”
    Pohl said the driver, identified as Erin Elliott, 19, rolled down her window, flashed a knife and told him she would kill him if he didn’t leave her alone. A McDonald’s employee at the drive-thru window told attorneys that the woman frantically told him on the ordering speaker that a “creepy guy” was bothering them.
    Pohl, in his deposition, said he went back to his car, told his police officer uncle about the woman’s threat and asked whether her actions were legal.
    “She’s kind of cuckoo, I think,” he told his uncle, according to the deposition.
    Pohl said his uncle approached the car, and the female driver slashed him on the right bicep. Pohl said he jumped out of the car to help his uncle when the female driver accelerated, swerved out of the drive-thru and struck Pohl, dragging him a short distance across the parking lot.
    The lawsuit claims that as a result of the incident, Pohl suffered permanent physical disabilities, pain and suffering, mental anguish and distress, disfigurement and the loss of his job as an optician.
    According to a medical report included in the court documents, Pohl fractured a portion of his pelvis and was hospitalized for three weeks and in a rehab center for two weeks. He must still wear an ankle brace and suffers from chronic diarrhea, bladder issues, depression and impotency problems, according to the report.
    But the friend who had been in the car with Elliott that night said the encounter with Pohl and his companion was far more intimidating. According to her deposition, Lisa Bartyzel Jaramillo said Pohl approached their car and left only after Elliott showed him her knife. He returned with three of his companions — all but the driver. The four men, she said, circled the women’s car. One of them punched Elliott in the face. In fear, Elliott swerved out of the drive-thru, striking Pohl.
    A defense expert stated in court documents that Pohl initiated the altercation with Elliott and that it was “inappropriate” for him to have left his car to approach the women so late at night in an often unsafe East Central neighborhood. The expert also said it would have been “prudent,” but not mandatory, to have a security guard posted outside the McDonald’s on late night weekends.
    Court documents indicate that police were called to the McDonald’s just before 2 a.m.
    Chavez said the case was not frivolous and that crime around the Wyoming location had been historically high enough to have warranted better security, which could have saved everyone the trouble that occurred that night.
    “One hundred and ten police reports were filed there in a three-year span prior to Mr. Pohl’s incident, “ Chavez said. “What we were saying was that Mr. Pohl was not completely and totally at fault and that McDonald’s would have been prudent to supply security.”
    Since the incident, Chavez said McDonald’s posts private security guards or Albuquerque police officers on chief’s overtime at the Wyoming location late Saturday and early Sunday morning hours.
    “Changes have been made because of this incident,” Chavez said. “I think that tells us what we need to know.”
    Court documents say Pohl settled his lawsuit against Elliott before filing the suit against McDonald’s in October 2005. Details of the settlement were unknown. Criminal charges against Elliott were never filed, Chavez said.