Rocha v. Boardners Opening Statements

Rocha v. Boardners

At about 1:30am on October 17, 2005, Boardners nightclub bouncers walk up to two patrons, John Rocha and David Deanda and say, “Get the f**k out!”

John, in shock, asks, “Why, what’s going on?”

The bouncers drag him out, beating him.

John then goes across the street and talks to a stranger.

He then goes back to the club but the door is closed, so he starts banging on it.

The door opens and John tries to go inside.

Four Boardners bouncers with metal ﬂashlights come outside: Rodney Tillis, Bouncer Boris Velinov, Bouncer Raul Castaneda, Bouncer Rafael Camacho, Head of Security

The bouncers kick and beat John with metal ﬂashlights on his head and body, causing damage.

Police arrive and see John’s injuries: 1. They conduct an assault- with-a-deadly-weapon investigation; 2. They put the bouncers in suspect line-up; and 3. They check the bouncers’ ﬂashlights for blood.

John is taken to the hospital by ambulance with potentially life-threatening injuries.

No one else—including each of the four bouncers—is injured.

Blows to his head cause a laceration and bruises.

Transverse process fractures at L2 and L3. Cervical Thoracic L2 Lumbar L3 Pelvic

John suffers transverse process fractures. Transverse Processes Spinous Process

There is no reason for four armed men to beat an unarmed man this badly, especially on his back.

John suffers from a contusion to the liver, a vital organ. Liver

Blows to the torso cause broken ribs on both sides. 7 9 10

John spends a night in the hospital under observation because he could bleed to death from his liver injury.

No one else—including each of the four bouncers—is injured at all, let alone sent to the hospital.

John’s injuries 2 inch laceration on his head Bruises all over his body Damage to his spine Broken ribs on both sides of his body Contusion to his liver

Harm that John suffered on the night of the beating Being beaten on the spine Having three ribs broken The blow to the liver Being beaten unconscious Being left in the alley Being beaten on the head Being beaten with metal flashlights

Harm that John suffered for months after Having to breathe with pain Having to sleep with pain Constant lower back pain Not being able to enjoy time with his daughter Financial stress due to missed work Having to do daily chores with pain Having to work with pain Having to walk with pain Depression from pain and helplessness An overall lower quality of life

The Defense has several excuses.

First Defense

Let’s deny everything!

Bouncer Boris Velinov denies knowing John was injured, even though: • John was taken away in an ambulance • The police put him in a suspect lineup • The police checked his ﬂashlight for blood • John suffered life-threatening injuries to his liver • John suffered damage to his spine • John had broken ribs on both sides • John had multiple head injuries

Head of Security Rafael Camacho denies knowing John was injured, even though: • John was taken away in an ambulance • The police put him in a suspect lineup • The police checked his ﬂashlight for blood • John suffered life-threatening injuries to his liver • John suffered damage to his spine • John had broken ribs on both sides • John had multiple head injuries

Manager Natalie Reser denies knowing John was injured, even though: • John was taken away in an ambulance • The police put her bouncers in a suspect lineup • The police checked their ﬂashlights for blood • John suffered life-threatening injuries to his liver • John suffered damage to his spine • John had broken ribs on both sides • John had multiple head injuries

Manager’s Report “Security was trying to calm the situation and they struggled to the alley-sidewalk entrance. After a couple minutes the large man Rocca [sic] got up and ran across the street. The cops arrived a bit later and then paramedics. He was not taken to the hospital to my knowledge and left on his own accord. I was closing the venue with my staff and it appeared no one was hurt including perpetraters [sic], although staff and bystanders were shaken up.”

Second Defense

He was drunk. Not an excuse for potentially fatal blows.

Third Defense

He broke our door. Not an excuse for potentially fatal blows.

Fourth Defense

He knocked a customer over. Not an excuse for potentially fatal blows.

Fifth Defense

He is a very large man. Still not an excuse for potentially fatal blows.

Sixth Defense

He has a martial arts background. Each of the armed bouncers is a very large man and not a single one of them—or anyone else—was injured.

The problem with the excuses?

They outnumbered him FOUR to ONE and they were armed with metal ﬂashlights!

None of the bouncers —or anyone else— was injured at all!

The Defense is not believable.

There is NO EXCUSE for beating an unarmed man this badly.

Burden of Proof You must be persuaded considering all the evidence that the proposition on which a party has the burden of proof is more probably true than not true.

3700. Vicarious Responsibility Introduction A person/partnership/corporation/ company is responsible for harm caused by the wrongful conduct of its employees while acting within the scope of their employment. A security guard is in a special relationship with the customers of the business that hired the guard. This special relationship imposes on the guard the obligation to act afﬁrmatively to protect customers while on the premises. The security guard is liable to an injured customer when the guard fails to act reasonably and that failure causes injury.

3900. Introduction to Tort Damages—Liability Contested If you decide that Plaintiff John Rocha has proved his claim against Defendant Boardners, LLC, you must also decide how much money will reasonably compensate Plaintiff John Rocha for the harm. This compensation is called “damages.” The amount of damages must include an award for each item of harm that was caused by Defendant Boardner’s, LLC wrongful conduct, even if the particular harm could not have been anticipated.

3900. Introduction to Tort Damages—Liability Contested Plaintiff John Rocha does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages.

3902. Noneconomic Damages The damages claimed by John Rocha for the harm caused by Boardner’s, LLC are called noneconomic damages.

3905. Items of Noneconomic Damage The following are the speciﬁc items of noneconomic damages claimed by John Rocha: – Physical pain, mental suffering, loss of enjoyment of life, disﬁgurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress.

3905. Items of Noneconomic Damage No ﬁxed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

1300. Battery— Essential Factual Elements Plaintiff John Rocha claims that Defendant Boardners, LLC’s employees committed a battery. To establish this claim, Plaintiff John Rocha must prove all of the following: 1. That Defendant Boardners, LLC’s employees touched Plaintiff John Rocha or caused Plaintiff John Rocha to be touched, with the intent to harm or offend him; 2. That Plaintiff John Rocha did not consent to the touching; and 3. That Plaintiff John Rocha was harmed or offended by Defendant Boardners, LLC’s employees conduct; and 4. That a reasonable person in Plaintiff John Rocha’s situation would have been offended by the touching.

1302. Consent Explained A plaintiff may express consent by words or acts that are reasonably understood by another person as consent. A plaintiff may also express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent.

1304. Self-Defense and Defense of Others Defendant Boardners, LLC’s employees claims that it is not responsible for Plaintiff John Rocha’s harm because it was acting in self-defense and defense of another. To succeed, Defendant Boardners, LLC’s employees must prove both of the following: 1. That Defendant Boardners, LLC’s employees reasonably believed that Plaintiff John Rocha was going to harm its employees and other patrons in Defendant’s establishment; and 2. That Defendant Boardners, LLC’s employees used only the amount of force that was reasonably necessary to protect its employees and other patrons in Defendant’s establishment.

VF-1301. Battery Self-Defense and Defense of Others at Issue #1 Did Defendant Boardners, LLC’s employees touch Plaintiff John Rocha, or cause Plaintiff John Rocha to be touched, with the intent to harm or offend him? ____Yes ____No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

VF-1301. Battery Self-Defense and Defense of Others at Issue #2 Did Plaintiff John Rocha consent to be touched? ____Yes ____No If your answer to question 2 is no, then answer question 3. If you answered yes, stop here, answer no further questions, and have the presiding juror sign and date this form.

VF-1301. Battery Self-Defense and Defense of Others at Issue #3 Was Plaintiff John Rocha harmed by Defendant Boardners, LLC’s employees’ conduct? ____Yes ____No If your answer to question 3 is yes, then answer question 4. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

VF-1301. Battery Self-Defense and Defense of Others at Issue #4 Would a reasonable person in Plaintiff John Rocha’s situation have been offended by the touching? ____Yes ____No If your answer to question 4 is yes, then answer question 5. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

VF-1301. Battery Self-Defense and Defense of Others at Issue #5 Did Defendant Boardners, LLC’s employees reasonably believe that Plaintiff John Rocha was going to harm its employees or other patrons of Defendant Boardners, LLC? ____Yes ____No If your answer to question 5 is yes, then answer question 6. If you answered no, skip question 6 and answer question 7.

VF-1301. Battery Self-Defense and Defense of Others at Issue #6 Did Defendant Boardners, LLC’s employees use only the amount of force that was reasonably necessary to protect its employees or other patrons of Defendant Boardners, LLC? ____Yes ____No If your answer to question 6 is no, then answer question 7. If you answered yes, stop here, answer no further questions, and have the presiding juror sign and date this form.

VF-1301. Battery Self-Defense and Defense of Others at Issue #7 What are John Rocha’s damages? Past noneconomic loss, including physical pain and mental suffering: $_________

3944. Punitive Damages Against Employer or Principal for Conduct of Speciﬁc Employees Bifurcated Trial (First Phase)

3944. Punitive Damages Against Employer… If you decided that Defendant Boardners, LLC’s employees’ conduct caused Plaintiff John Rocha harm, you must decide whether that conduct justiﬁes an award of punitive damages against Defendant Boardners, LLC for their employees conduct. At this time, you must decide whether Plaintiff John Rocha has proved by clear and convincing evidence that Defendant Boardners, LLC’s employees engaged in that conduct with malice, oppression, or fraud. The amount of punitive damages, if any, will be decided later.

3944. Punitive Damages Against Employer… “Malice” means that Defendant Boardners, LLC’s employees acted with intent to cause injury or that Defendant Boardners, LLC’s employees’ conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

3944. Punitive Damages Against Employer… “Oppression” means that Defendant Boardners, LLC’s employees’ conduct was despicable and subjected Plaintiff John Rocha to cruel and unjust hardship in knowing disregard of his rights. “Despicable conduct” is conduct so vile, base, or contemptible that it would be looked down on and despised by reasonable people.

3944. Punitive Damages Against Employer… Plaintiff John Rocha must also prove one of the following by clear and convincing evidence: 1) That an officer, a director, or a managing agent of Defendant Boardners, LLC had advance knowledge of the unfitness of Boardners, LLC’s employees and employed them with a knowing disregard of the rights or safety of others; or 2) That an officer, a director, or a managing agent of Defendant Boardners, LLC authorized Boardners, LLC’s employees’ conduct; or

3944. Punitive Damages Against Employer… 3) That an ofﬁcer, a director, or a managing agent of Defendant Boardners, LLC knew of Boardners, LLC’s employees’ wrongful conduct and adopted or approved the conduct after it occurred. 4) An employee is a “managing agent” if he or she exercises substantial independent authority and judgment in his or her corporate decision making so that his or her decisions ultimately determine corporate policy.

Punitive Damages First Phase #1 Did John Rocha prove by clear and convincing evidence that Boardner’s, LLC’s employees acted with “malice or the intent to cause injury?” ____Yes ____No If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.

Punitive Damages First Phase #2 Did John Rocha prove by clear and convincing evidence that Tricia La Belle, the owner of Boardner’s, LLC, knew of Boardner’s, LLC’s employees’ wrongful conduct and adopted or approved the conduct after it occurred? …OR…

Punitive Damages First Phase #2 Did John Rocha prove by clear and convincing evidence that Tricia La Belle, after being informed of her employees’ actions, did not fully investigate and failed to repudiate the employees’ conduct by redressing the harm done and punishing or discharging the employees involved? ____Yes ____No

Rocha v. Boardners Opening Statements

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