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Theater Deemed Liable for Choking Fatality by Using Animation

The smell of buttered popcorn filled a movie theater’s concession stands on what was supposed to be an enjoyable evening in Bakersfield, California. However, when the theater’s staff failed to respond to an emergency quickly and decisively, a grandfather was prevented from saving his grandson’s life. Tim Osborn of Osborn Law, a one-man Plaintiff’s firm, represented the decedent’s family against the large theater chain. He attained a favorable settlement using a reconstruction of the incident that demonstrated how the staff’s inaction and incompetence resulted in the young man’s death.

Surveillance footage captured the young man with Down syndrome jumping eagerly as he and his grandfather purchased snacks before the movie. They sat down to enjoy their food when suddenly, the grandson began choking on his hot dog. The boy stood up and motioned to his grandfather to help him. The grandfather, trained in CPR and airway management, quickly recognized the emergency and attempted the Heimlich maneuver. Two more movie patrons, who were also CPR-certified, tried to help, notifying staff to turn on the lights so that they could see the obstruction. As the boy lost consciousness, his grandfather pleaded with the theater’s manager to stop the film and turn the house lights on, but unfortunately, they were not working.

As critical minutes passed, the movie’s loud audio made it difficult for the men to communicate. The manager located a defibrillator that belonged to a security guard, but no employees had emergency training. By the time she returned with the device, it was too late.

Devastated over the young man’s preventable death, his family contacted Tim Osborn after their initial attorney deemed the case too challenging and opted out. Tim rose to the challenge of standing against the corporation and its roster of Defense attorneys. Beginning his litigation, Tim deposed the theater’s staff, who denied any responsibility for the boy’s death. He discovered the staff’s official policy advised employees to not help in an emergency and that there were no protocols for turning on the auditoriums’ lights. Furthermore, the Defense attorneys refused to accept that the theater’s ill-functioning lights prevented the grandfather from saving his grandson’s life.

Tim retained several medical experts, including an emergency medicine and airway management specialist, who testified that the grandfather could have performed a “finger sweep” technique to remove the blockage had the theater’s lights been functional. Tim brought on DK Global to animate the incident and supplement his experts' testimony, demonstrating the theater’s culpability for the young man’s death.

The reconstruction depicted the young man and his grandfather enjoying their snacks in the theater. Suddenly, the grandson began choking on his food. An illustration of the boy’s anatomy showed the location of the obstruction in his airway, emphasizing how easy it would have been to remove the food using the finger sweep method. The grandfather and other men pleaded with the manager for help as the grandson lost consciousness. Simultaneously, depositions of the staff were displayed, stating that there were no emergency policies, no training, and that employees were instructed not to help. As the critical minutes passed, the video revealed that the theater did not maintain its lights for months. Ultimately, this prevented the grandfather from saving his grandson.

Tim shared the presentation with the Defense counsel during a deposition of his expert. As the animation played, the expert shared his testimony, allowing the opposition to deduce the reaction a jury may have if the case proceeded to trial. A week later, Tim obtained a very favorable settlement.

Golden Advocate winner Tim Osborn started his solo practice in 2008, which has quickly grown into one of the most successful personal injury firms in the San Joaquin Valley. Tim is a member of the Multi-Million Dollar Advocates Forum, one of the most respected associations of trial lawyers in the country, and is “AV Preeminent Rated” by Martindale Hubbell. Additionally, Tim was recognized as a Super Lawyers “Rising Star” from 2015 to 2019.

"Working with DK Global sent a clear message to the defense team. When the other side learns that you are working with DK Global, it has a psychological and real impact on how they approach the case."
Timothy M. Osborn - Osborn Law
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