|By Jeff Lehr, The Joplin Globe,
Mo.McClatchy-Tribune Regional News
Mar. 11, 2008 - A Las Vegas pianist is seeking more than $300,000 in economic damages for a back injury he claims to have suffered when a sauna bench collapsed beneath him two years ago at the Holiday Inn in Joplin.
A Jasper County jury was selected Monday to hear the lawsuit of David Osborne, 49, an accomplished pianist at the Bellagio Hotel in Las Vegas, against John Q. Hammons Hotels, the owner of the Holiday Inn in Joplin.
Osborne, who was raised in the Miami, Okla., area, and his son and daughter were staying at the Joplin hotel in December 2005 when the injury allegedly was incurred.
His lawyer, Joplin attorney Roger Johnson, told jurors during opening statements that his client lay down on a wooden bench in the hotel's sauna after working out, and that it collapsed beneath him in splinters. Johnson said Osborne landed on the floor of the sauna, injuring his back and left hand.
Johnson told the jury that the back injury eventually forced his client to curtail the number of shifts per week he was performing at the time as a pianist in the restaurant of Caesar's Palace in Las Vegas. The injury causes Osborne pain when he sits to play the piano, and the pain increases with extended periods of performance, Johnson said.
He said Osborne's back pain is chronic, severely hampering his earning potential. He said Osborne eventually took his current job at the Bellagio, where he could work fewer shifts per week.
Johnson said the injury cost his client $13,000 per year in lost wages because of the need to cut back on his number of shifts per week, and that it will continue to cost him in the foreseeable future because his problem cannot be helped by surgery.
The plaintiff maintains that the sauna bench was in poor condition, and that the Holiday Inn failed to keep it safe for guests' use. Johnson told jurors that the bench had never been replaced since the hotel opened, that there is no record of any maintenance or repair of it, and that there is no record of any daily inspections of the sauna by hotel employees as required by company policy.
"It was apparent to both David and Joshua (Osborne's son) when they looked at it afterward that the bench had become dilapidated," Johnson told jurors.
But Grant Haden, a Springfield attorney representing John Q. Hammons Hotels, told jurors that there is no evidence the sauna bench was in poor condition. He said Osborne's lawsuit was "built on a house of cards."
"That bench was made out of redwood," Haden said. "It was in a dry sauna."
Redwood is known for its resistance to rotting, he said.
Haden said the sauna was regularly inspected. He told jurors that an employee who examined the bench after the incident thought it appeared that the legs of the bench were kicked out. Haden suggested that some sort of damage may have been caused the previous night by other guests, and that the legs may have been propped back under the bench in an effort to hide the damage.
"We can't admit what we don't know," he told jurors.
Haden said the Osbornes' stay of two nights at the hotel was "comped" by management when the incident was brought to its attention. He said the hotel's removal of the collapsed bench's debris in the aftermath was not indicative of any "evil motive" on management's part as the defense suggested, but ordinary cleanup.
Haden suggested that other circumstances surrounding Osborne's employment at Caesar's Palace may have played a role in his decision to leave there for the job at the Bellagio. Caesar's Palace had been sold, there were waning crowds in the part of the hotel where he played, and there was concern among fellow musicians about the security of their jobs, Haden said.
Haden showed jurors a notice of intention Osborne had written that suggested he had taken the Bellagio job for improved pay and a better career opportunity, and made no mention of any problem with back pain. He also showed them an e-mail from the Caesar's Palace entertainment director that cited Osborne's desire to spend more time with his family.
He pointed out that just days after the incident at the Holiday Inn, Osborne flew to Washington, D.C., to perform at the White House and then flew back, spending hours sitting on a plane.
The physical fitness of the plaintiff and whether he had any pre-existing back problems appear to be likely trial issues. Both sides acknowledge that he is a runner in outstanding physical shape.
"I know some people who have serious pain," Haden told jurors. "They don't run three or four miles a day."
But Johnson said there is no record that Osborne had any pre-existing back problems, and that his physical fitness has been maintained despite chronic back pain that conflicts with the physical demands of his livelihood.
David Osborne, who is suing the Holiday Inn in Joplin, attributes his success as a pianist to Joplin piano teacher and philanthropist Mary Helen Harutun, who died in February at Spring River Christian Village in Joplin.
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