Besides venting my wife's and my frustration with this entire unpleasant situation, I want to warn other buyers who go into restaurants and stores that "slip & fall" case law is in favor of these sellers who can be potential defendants. We were warned that this is so, but we had to try as we were also told by experienced legal advisers that Whataburger would not replace that particular older store's flooring with the new more slip resistant flooring we observed in a much newer store at the Whataburger by I-635 & MacArthur Blvd in Dallas County Tx. This was, at first, our main goal and concern; that others would not slip and hurt themselves (NO BULL!).
On 9/24/2003, about 1:30 pm, my wife slipped, fell, and broke her tailbone on a freshly mopped floor in the Whataburger store at 101 W. Southwest Pkwy in Lewisville, Tx.. We just came back from small claims court where the judge did not allow any lost wages (only medical bills). For many days and weeks, she was not able to sit comfortably (even with an inflatable sitting tube), and do her administrative work as my partner in a "mom & pop" marketing business that we ran for 13 years. The burden of proof was on us to prove Whataburger's negligence and recuperate lost wages (forget about "pain & suffering"). Since we didn't want to be unscrupulous, we didn't try to run up medical bills. A broken tail bone can only mend on its own over time, and we did not keep salary time sheets on ourselves for our own corporation.
In fairness to Whatabuger, what their attorney did was what any seller would do as the law stands now. He implied (according to what my wife told me) that even though the two safety, warning cones may not have been clearly and conspicuously placed for every table location to allow easy visibility (behind booth seat backs), the two that were positioned at the two sets of doors (one behind a booth seat back that my wife could not see from her "two booth over" seating position) satisfied Whataburger's legal requirement to warn customers of soapy, wet, slippery floors. He even brought up Walmart winning slip & fall cases on that basis. I believe what is needed for all "washing of floor" situations is MORE and much TALLER cones (at least 4 vs. 2 at that location) placed so that there are no "blind spots" no matter where a customer is standing or sitting.
We had the former Whataburger Assistant Mgr.testify as our witness that others had fallen and hurt themselves for the same reasons (as well as how slippery that floor got from just rain), but that was not relevant (according to the Whataburger attorney) as only a small percentage of all the customers fell. Whataburger's attorney also tried to discredit him by implying that he had "an axe to grind" with his former employer. Another former employee at that store who slipped herself right after the floor was mopped (with Whataburger mandated slip resistant shoes on) was not allowed to be our witness, because she was not there when my wife fell. But the overriding reason we did not get back lost wages is because, as a "mom & pop" company we could not prove any amount of lost wages. Yearly tax return income divided by the number of lost days was no good! I guess the moral of that story is that "mom & pop" companies need to incur that extra time keeping & software expense in the event they need to prove "lost wages".
What was insult to injury is that even though the judge said "Decision for the plaintiff", she also said "No Court Costs Will Be Awarded To the Plaintiff"? While it was only $57.00, my wife and I felt like we were being punished for even trying to recuperate "lost wages", not running up medical bills, and not even trying for "pain and suffering" compensation! Maybe that is S.O.P., but if it is, it sure makes us become more cynical about the court system.
In a continuing effort to prevent other scrupulous customers from a "medical bills" only court decision, here is a link to an attorney article on "Slip And Fall Cases: Alternative Theories Of Liability". Of course, if your case is only worth under $5,000 like ours, it may not be worth it to hire an attorney and expert witnesses. Also, consider the fact that the judge has a hard time determining which plaintiffs are just out to "work the system" for "big bucks", and which ones are scrupulous and ethical. Part of the problem here is the huge plaintiff payoffs going to those suing for "big bucks" and winning when they shouldn't.
However, if the Whataburger Corporate person would have been more empathetic than "You'll never get any more than medical bill reimbursement", maybe we would have gone no further. If the experienced legal advisers did not tell us the truth of "Forget trying to have Whataburger replace that old flooring", maybe we would have given up to begin with. Maybe then, we wouldn't have tried to help other people by, at least, having a small claims court decision go against Whataburger. But, these things did arose a sense of injustice in us.
The main reason, however, that we wanted a successful court decision is if someone, God forbid, ever gets hurt a lot worse than my wife did ( I think it is just a matter of time), the plaintiff's attorney could find that out through using legal "discovery", and it might help win their case. Maybe then, someone would force Whataburger to replace that old flooring in that particular, older store with what I believe is a more slip resistant new flooring they've installed in newer locations?
So, in my opinion, Whataburger's slip & fall attitude for that particular, older Lewisville Tx. location is that "we don't care if someone else slips & falls on a rainy day or after we mop the floor, it costs too much money to replace, and we know we'll win in court if someone is foolish enough to sue us. After all, the law is on our side." I'm sure they would disagree with me, but actions (or lack of actions) speak louder than words.
How would you feel if this happened to you or someone you love?
PS: THIS IS AN UPDATE DONE ON 12/14/05 = MY WIFE AND I RECEIVED THE WHATABUGER CHECK FOR $238 (the amount of the medical bills ONLY from when we incurred them almost two years ago) ON 11/21/05. IT BOUNCED!! WE WERE NOTIFIED BY OUR BANK OF A $5.00 "BOUNCED CHECK FEE" TO US (WHICH WE WERE ABLE TO GET WAIVED MUCH LATER DUE TO OUR LONG TERM "GOOD CUSTOMER" STATUS WITH OUR BANK). HOWEVER, WHEN WE TOLD THE WHATABURGER ATTORNEY WHAT HAPPENED, HE PROMISED (verbally, on the phone) THAT WHATABURGER WOULD PAY "INTEREST" TO US (in accordance with the Judgment) ON THE $238 FROM 11/7/05, the date of the Judgment for my wife. Well, we finally got a replacement check on 12/8/05 (from the attorney's checking account vs. Whataburger's). BUT, WOULDN'T YOU KNOW THERE WAS NO INTEREST INCLUDED, AS PROMISED! So, we faxed the attorney to send it to us as he promised. HERE'S THE BEST PART OF "Whataburger's Slip & Fall Attitude" == THE ATTORNEY SENT US A ONE DOLLAR BILL & 38 PENNIES!!
We thought is was FUNNY, and put the pennies in our "Give to charity" penny jar. But, to us, it was also another proof of what we consider to be a very ARROGANT, CONDESCENDING AND UNCARING ATTITUDE (at least, in our opinion, that's the way all of Whataburger's communication came across to us). Again, in fairness to Whataburger, maybe our perception of those attitudes was due to too many UNSCRUPULOUS people trying to make exaggerated or even false claims against Whataburger in slip & fall cases (vs. our legitimate attempt to get that particular Whataburger's old floor replaced, and recuperate "lost wages" of under $5,000)?
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