INSIDE THIS ARTICLE:
- A couple sued a restaurant chain in Texas, claiming injury and mental anguish after a glass window shattered into their booth.
- Failure to properly maintain the 50-plus-year-old windows factored into $4 million in damages awarded by jury.
- Increasing litigiousness highlights risks of inadequate Commercial General Liability (CGL) Insurance for businesses.
- Ramifications of such suits can include legal expenses, reputational damage, and other impacts.
- Maintain all documentation of updates and maintenance to lessen legal liability.
A Texas jury recently ordered about $4 million in damages to be paid to a couple who were injured when a plate glass window shattered into their booth while they were dining at a Jim’s Restaurant location in San Antonio in January 2022. The 53-year-old woman and her 47-year-old husband reportedly suffered lasting pain following the incident, which occurred on an “extremely windy” day, FoxSA reported.
In their lawsuit against the restaurant chain and the owner of the building, the couple accused the entities of gross negligence for failing to inspect or maintain the window — which had been installed in 1963 — and for failing to warn customers that it could break. During the trial, the woman testified that she was “terrified” when the window shattered and said the injuries she suffered upended her career and left her with ongoing pain and post-traumatic stress disorder.
“This was just a normal couple eating at a restaurant and they had a freak accident happen,” said Connor Farquharson, Manager, Commercial Insurance, Burns & Wilcox, Dallas/Ft. Worth, Texas. “There is always a risk of unforeseen accidents like this.”
This was just a normal couple eating at a restaurant and they had a freak accident happen. There is always a risk of unforeseen accidents like this.
The couple was seated and about to begin eating when the window suddenly shattered, prompting them to dive onto the floor and cover their heads. According to San Antonio Express-News, the $4 million verdict includes $2.4 million for the couple’s pain, mental anguish, and medical care, and $1.6 million in punitive damages against the property owner. This type of settlement, along with legal expenses, could be covered by Commercial Casualty Insurance policies such as Commercial General Liability (CGL) Insurance and Excess Liability Insurance.
“As an insurance professional, my first thought was that I really hope they have Casualty Insurance,” said Shawna Oakes, Senior Underwriter, Commercial Insurance, Burns & Wilcox, Toronto, Ontario. “The intention behind it is to provide coverage in the event that something like this were to happen.”
Injury claims ‘can be catastrophic’
According to reports, attorneys for Jim’s Restaurants denied evidence of reckless disregard and said the owners did not know the window presented a risk. They also argued that many of the woman’s health issues were pre-existing based on a review of her medical records, though the woman claimed her prior issues were minor and did not interfere with her job.
“This situation shows how property maintenance is very important for businesses,” Farquharson said. “There may not have been evidence of reckless disregard, but the windows were more than 50 years old. While they were not in bad shape, they still did pose a risk.”
As an insurance professional, my first thought was that I really hope they have Casualty Insurance. The entire intention behind it is to provide coverage in the event that something like this were to happen.
It is a reminder that property owners and business owners should “always be cognizant” of potential perils. “We are a very litigious society and there are more risks associated with doing anything than there ever have been before,” he said.
When an accident occurs that results in third-party bodily injuries or property damage — whether a slip-and-fall on the premises, a foodborne illness, or another unforeseen incident — the ramifications can be significant, including legal expenses, reputational damage, and other impacts. “That is what insurance is there for — to cover these events and to help the insured and the claimant, as well,” Farquharson said.
A single bodily injury claim “can be catastrophic, depending on the injuries that the individual faces,” Oakes explained. While common liability limits for CGL Insurance are usually between $1 million to $2 million, Excess Liability Insurance may be needed to obtain sufficient limits.
Claim expenses, including attorney fees, are increasing every year. Everyone should be looking at Excess Liability Insurance options.
“Typically, we do not see Casualty Insurance coverage lower than $2 million limits right now,” she said. “In today’s litigious society, we suggest $5 million limits just to ensure there is adequate coverage.”
Higher limits are even more important amid rising claim costs in the U.S. and Canada, Farquharson agreed. “Damages can exceed your standard policy limits very quickly,” he said. “Claim expenses, including attorney fees, are increasing every year. Everyone should be looking at Excess Liability Insurance options. The costs can add up very quickly, even for mundane claims.”
Property managers may also be sued
In April, a court awarded $2.75 million to a woman who fell and broke her hip at an Outback Steakhouse and $250,000 to her husband for loss of consortium, Law.com reported. The woman had allegedly fallen on a greasy substance on the restaurant’s floor, and the establishment failed to preserve some of the video footage leading up to the incident. In Bergen County, New Jersey, neighbors of a pub recently filed a lawsuit against the restaurant and its landlord after the building caught fire, damaging the upstairs neighbors’ belongings, and exposing them to smoke inhalation, NorthJersey.com reported Feb. 13.
When an injury occurs at a commercial business, the business owner, property owner, landlord or property management company could all be named in a lawsuit. “Building maintenance may come into question and it will be a matter of who is actually responsible for that claim,” Oakes said. “Each of those entities should definitely have Casualty Insurance.”
In today’s litigious society, we suggest $5 million [liability] limits just to ensure there is adequate coverage.
These companies “owe a duty of care to the public,” she said. “It comes down to understanding your business and your exposure.”
If a property owner is aware of a hazard and fails to repair it — for example, if a customer slips and falls on broken pavement in the parking lot — their potential liability may be heightened, Oakes noted. “These types of claims are very common in this space, unfortunately,” she said.
The best advice for owners “is to know what is in your insurance policy and what is excluded,” Farquharson said. For example, coverage for windows may be excluded, and some CGL Insurance policies will exclude or sublimit medical payments.
Avoiding bodily injury lawsuits
Business owners, property owners and property managers can help mitigate the risk of an injury-related lawsuit by keeping their property well-maintained, especially with aging infrastructure. “We are seeing more and more buildings getting older and there are going to be some side effects to that,” he said, pointing to outdated electrical wiring that could lead to fires or older pipes that are more likely to freeze.
In addition to keeping properties up to date with regular maintenance, upgrades such as increased exterior lighting, video surveillance and monitored alarms may be recommended, Oakes said. Professionals also can be brought in to inspect the building for signs of failure or degrade, windows and other materials for signs of failure. “It really comes down to making sure qualified professionals ensure the building and equipment is up to code and operating the way that it should,” she said.
Keeping a detailed record of this work “can also protect them down the line if there are allegations that they neglected to fix something,” Oakes added. “If the building was just inspected or repaired, it would be reasonable to assume that they would not fail. That helps direct where any fault should lie.”
By maintaining your property “to the utmost degree,” Farquharson said, “some of these risks can be mitigated.”
Still, “some things are out of your control,” he acknowledged. “There can always be something that happens that triggers your insurance and causes a claim,” he said. “Insurance is coverage for the unexpected. There is always going to be some risk, no matter what you do.”
