Massive TBI Verdict Against Topgolf! with Chris Hammons & Anne Foster

Voice Over (: 00:00:00

The most dangerous place you can be as a trial lawyer is to think you've got to figure it out. I'm still trying to get better. I still have the passion for it. I believe in it. Everyone can learn to do what I do. And yet there's a group here that continues to get extraordinary verdict. Trial Lawyers University is revolutionizing educating lawyers to be better trial lawyers. It's been invaluable to me. Trial Lawyers University, where the Titans come to train. Produced and powered by LawPods.

Chris Hammons (: 00:00:33

Welcome to the TLU Podcast. We're here from Huntington Beach. We're at the TLU Beach 2026. It's already started off. You might hear some background music. I'm taking Dan's place. My name's Chris Hammons. I'm a trial lawyer from Oklahoma and you might hear some music going on during this. Dan's getting the party started. So I'm filling in for Dan and we're looking forward to the rest of the week. And today though, we're talking about a really, really important, interesting case. A nine-year-old boy was going to a friend's birthday party to have some fun at one of these Topgolf golf centers, a place built for family entertainment. And that little boy, he didn't come home the same after that day. He had a golf club strike to the face and head hemorrhage, brain hemorrhaged, traumatic brain injury. And four years later, that case went to a federal jury trial to verdict in Portland.

(: 00:01:42

And really the answer to that verdict changed the way this industry looks at safety. And here today we have as a guest trial lawyer who took and told that family story to that jury. And she's tried more than 50 cases on the plaintiff and defense side. And she's the founding member of Smith Foster King in Portland. Anne Foster, welcome.

Anne Foster (: 00:02:09

Oh, well, thank you so much, Chris. It's so great to be here. I'm excited to be a part of TLU Huntington Beach. This is my first time at TLU and just really happy and loving all the people I'm meeting.

Chris Hammons (: 00:02:25

Yeah. It's a great opportunity. I mean, Dan does such a great job of setting it up to network, to talk to people and to interact with people who we all were here for a reason. We love trying cases and we love helping people, but more than that, I mean, I get to learn something every time and talk to great lawyers.

Anne Foster (: 00:02:47

I mean, I feel so lucky because this is a place where I get to learn every single class I'm attending. I'm talking to people who are superstars in the industry and then I get to go and have cocktails with them and learn their stories and break bread. It's just highly recommend this for everybody that can do it.

Chris Hammons (: 00:03:11

Well, and what I want to do is we obviously are going to talk about the Topgolf case. I think it's super interesting and I think it's important for us all as lawyers to talk about how you go in and win hard cases because I think that's an interesting hard case. But let's start. Take us back. I like to always hear why great lawyers. What brought you to the law? How did you get into a courtroom?

Anne Foster (: 00:03:38

I want to say that ... Well, I'm going to back it up to when I was in high school. I was on the mock trial team. Really? I was co-captain with my now husband and we just had a great time and I went off to college. I was not dating my now husband at the time and I kind of lost my way. I just started thinking I'm not good enough to be a lawyer. I don't know if I can do it. I eventually came back to it, went back to law school, always wanted to do trial work. It was just what made me happy. When I got out of law school, I started for the defense. I worked for a small medical malpractice defense law firm in Portland, Oregon. I realized right away that no doctor was going to have me be their first chair when their job was on the line.

(: 00:04:40

So I went somewhere where I could get some experience before I started doing the big cases, went to a law firm that I loved. We were family. 25 years at Dunn Carney, which is a firm in Portland and started out doing the car accidents, defending. And eventually they let me start doing plaintiff's work and I found my life's dream. It was night and day different about just how happy I was. It wasn't just being in the courtroom, but I was actually helping to change people's lives.

Chris Hammons (: 00:05:16

Yeah. Yeah. Tell us about for young lawyers, when they first get in there, you talked about maybe even feeling not good enough. I still kind of feel that way sometimes now. I've been doing this for 20 something years and sometimes I get worried about, am I good enough to try this case for this really the nine-year-old boy? My client that's passed away and their family and you find that way. But tell us about those early days. How did you deal with those feelings? How'd you overcome that?

Anne Foster (: 00:05:49

I would say I did three things. One, I figured out where I was most worried. I mean, even now there are things where I think I don't know the medicine on mild traumatic brain injury enough to be able to talk about it. I'm not saying I have to learn how to be a doctor, but I got to be able to know when somebody is putting the wool over my eyes. I got to be able to see it and know where the issues are. So I learn and early on I was going to the courthouse and watching. And there's something about seeing other people doing it and thinking, "Well, shoot, if he can do it, I can do it. " So that's number one what I did. Number two, I read everything I could about trial work. I mean, back then it was about defense, but I read everything I could about evidence.

(: 00:06:53

I would practice it in front of the mirror. I mean, I'm one of those people that when I start to feel like I don't know something, I'm going to read about it, go and find the people that are the experts and then I'm just going to practice on my own. And the moment I start seeing people, I'm like, "Well, I could have done a better opening than that. " And then I start doing them. I was upfront with all of my employers when I was a young lawyer and said, "I want to go to trial. That is what I want. " I can remember when I applied for the job at Dunn Carney, the guy who interviewed me was Tom Tong. He's just a monster at the bar. He's now retired, but at the time he was a superstar and he asked me what I saw myself in 10 years and I told him I wanted his job, but that was true.

(: 00:07:48

I wanted to be going to trial on the bet the company cases and now I get to do that, but I get the joy of knowing that I am helping people and humans and changing their lives. They're still betting the company, but I don't have to defend those companies anymore. That's right. That's

Chris Hammons (: 00:08:10

Right. Yeah. Well, it sounds like then you had some pretty good mentors at least early on that-

Anne Foster (: 00:08:17

Absolutely.

Chris Hammons (: 00:08:18

I mean, was that important for you? I know that I've had people along the way, my partner who's deceased now, Jeff Laird, he was an old war horse and I've had lots of people along the way that I looked up to. Did that help you get through some of that? Absolutely.

Anne Foster (: 00:08:36

You know what? I teach a lot of trial now in Oregon for the bar and I always talk to people about how important it is to have a mentor and how important it is to have that buddy you can call even when you're in trial. Absolutely. Something's gone down. Oh my gosh, I'm not prepared for the motion for mistrial. What do I do? What I tell all of the more junior lawyers now is you stand up and say, "Can we take a quick break, Your Honor?" The worst that they're going to say is no, but if they say yes, you go outside in the hallway and you have somebody on speed dial that you can call. And being a good mentor is being able to take those calls. I give my phone number out to whole classes of people and say, "If you're going into trial, you call me beforehand and say, I might need you.

(: 00:09:34

So I've got your number and I'm not thinking, what is this birthday?" And

Chris Hammons (: 00:09:38

I know it's coming.

Anne Foster (: 00:09:39

Right. And I know

Chris Hammons (: 00:09:40

It's coming.

Anne Foster (: 00:09:41

Yeah. But you can call me any time, night or day. And I had that. It was so great because I feel like a lot of my cases, especially in defense world, I had to learn about dairies. So I had to call and find out where I had a case where we're defending, but we ended up plaintiffing in the case cross counter and the fights we were having about whether or not somebody, if they could file for bankruptcy and did they file or are they just threatening to file in the middle of trial? What do I do with it? Those are things that I wasn't prepared for when I was younger that I had somebody to call who, thank God, had dealt with it. Yeah.

Chris Hammons (: 00:10:31

Well, it seems like we find out as we get older and get more experienced that maybe no one knows the answers, but we're just good at shooting from the hip a

Anne Foster (: 00:10:41

Little bit, right? Exactly. Exactly. You got to have somebody who's willing to shoot from the hip. That's a really good point because I've certainly called people, tell them the crazy predicament I'm in and they're like, "I've never dealt with that. Good luck with that. " And it's like, I just wasted my four minutes on you, buddy.

Chris Hammons (: 00:10:58

But I think that's the sign of good trial lawyers. I think we're all kind of geared towards just doing it. Just go for it. Maybe we don't know the answer. Maybe we don't even know if it's the right answer, but man, we'll go for it. I think there's something to that. You got to just jump off the clip.

Anne Foster (: 00:11:15

Well, or we know the process. Okay, start with the rule or start with the statute, then look at the next piece, then call a friend, or you've got a process that you can go through.

Chris Hammons (: 00:11:27

Well, you know what? Another thing that interests me about you is I'm always interested when people come from the dark side over to the light.

Anne Foster (: 00:11:37

That's right. You came

Chris Hammons (: 00:11:39

Over to the force.

Anne Foster (: 00:11:40

Yes.

Chris Hammons (: 00:11:41

Tell us about

Anne Foster (: 00:11:41

That. And thank you for saying that because I am a huge Star Wars fan.

Chris Hammons (: 00:11:46

Huge. Well, tell us about that. I'm always interested because I do think it's a leg up for some folks to have seen the other side and I don't know, see how that works. And sometimes you see the kind of same defense out of people, but I do think it's like pulling back the curtain on the Wizard of Oz kind of. And so tell us about that and tell us how you kind of deal with that.

Anne Foster (: 00:12:12

So the attitude with being a defense attorney is I take it as a win if the verdict ends up being lower than my offer. So even though the plaintiff has won, I still think it's a win if the verdict came in under my last offer.

Chris Hammons (: 00:12:38

Not to interrupt you, but that's a hundred percent true because I've tried cases where I thought I'm going to break it off in this. This is going to be great.

Anne Foster (: 00:12:47

We'll

Chris Hammons (: 00:12:48

Destroy

Anne Foster (: 00:12:48

Them.

Chris Hammons (: 00:12:48

And I didn't get the right verdict and I thought they beat me, but I didn't lose. We didn't lose. But sometimes a win is a loss on the plaintiff's side. It

Anne Foster (: 00:12:57

Feels like

Chris Hammons (: 00:12:58

It. It's great. I'm glad you said that because I always wondered how that felt for the defense.

Anne Foster (: 00:13:05

I mean, okay, couple of things. If you're getting all the way to trial, you got something to talk about as both parties. So I felt like in defense world, especially those ones, because I always believed in being reasonable, like, okay, I'm not going to deny that the accident never happened, or I'm not going to deny that somebody could be injured. A lot of my arguments were, "But is this permanent? Is this-

Chris Hammons (: 00:13:37

It's just not that bad.

Anne Foster (: 00:13:38

Yeah. Come on. Is it that bad sort of thing?

(: 00:13:44

So my focus is trying to keep things narrow. Now, obviously as a defense attorney, the other thing that I did was I learned to find their weaknesses and poke at that. I didn't have to disprove the whole case. I mean, the thing about being a plaintiff's lawyer is you live and breathe that case from beginning to end. I mean, it's not just about I got to pick a good jury, but I got to prove every single element. I got to give the jury a story that's reasonable, makes sense of what happened. And then I got to prove all my damages. Defense attorneys don't have to do that. I got it so much better. I can remember the first couple of plaintiff's cases I was doing when I was at the law firm before I went out on my own was it was like, shit, this stuff's hard.

(: 00:14:47

I'm a conductor of a symphony. I got to give you the story. Then I got to bring in- It's like directing a

Chris Hammons (: 00:14:53

Movie. A movie of somebody's real life.

Anne Foster (: 00:14:56

Yes. Whereas as a defense attorney, I just have to- Pick up the file. ... ruin your shot, one shot and then another- Pick up the file

Chris Hammons (: 00:15:06

And just go in there

Anne Foster (: 00:15:07

And

Chris Hammons (: 00:15:08

Throw

Anne Foster (: 00:15:08

Something in the gear

Chris Hammons (: 00:15:09

Shift.

Anne Foster (: 00:15:11

Now, any defense attorney is going to be like, "Well, there's a little more to that than that. " Absolutely. I also feel like I am so much more obsessed with the story now. I care about the law too, but I really want to make sure I understand the story. I'm getting to know my clients. I'm really getting to understand them. That doesn't necessarily happen in the defense world.

Chris Hammons (: 00:15:44

Yeah. I always say it at my ... One of the first big cases that we tried got millions, kind of big one that I didn't know what I was doing. I was young and I went to my client's house because somebody said to, like Gerry Spence or somebody I heard on the news. Somebody said, "You should go and set

Anne Foster (: 00:16:04

Up her." You need to go break bread.

Chris Hammons (: 00:16:05

And I did. And sure enough, I'm sitting there talking to my client and he had some burn injuries and really bad stuff. And he tells this story about a nurse's aide named Rosa and she opened his milk and answered the phone. I just go, "Whoa." It was an amazing story. So at trial, I asked him one question. I said, "Tell us what you remember most about the burn unit." And everybody in the room, the jury, everybody thought it's pain and it smells. And he told the story of Rosa. My partner's crying. I mean, everybody's crying. I mean, it was a fantastic moment. But from that point on at my office, everybody's always like, I'm always like, "We got to find the Rosa." We got to find the Rosa. That's such a good term. Oh, it just hit me like a ton of bricks. And from that point on, I'm like, "We got to find the Rosa," whatever it is.

Anne Foster (: 00:17:02

But you have to do that as plaintiff. As a defense attorney, you don't have to do that.

Chris Hammons (: 00:17:09

It's not part of the job.

Anne Foster (: 00:17:10

It's not. I think that can mess him up a couple of times, especially because now I love these bet the company because I'm against the company and I know the company better than they do because they haven't learned. They haven't gone and talked. They haven't even gone to the offices. They do it all from their office and that is just ...

Chris Hammons (: 00:17:35

Yeah. I wanted to talk to you too, just to kind of pivot a little bit because I did the same thing. I was with another firm and then went out on my own. I think you guys, you're the founder of a fairly new firm,

Anne Foster (: 00:17:49

Right? Yes.

Chris Hammons (: 00:17:51

And tell us about what made you decide to do that? What was the goal? For me, I wanted to be a trial lawyer and I didn't want to be known as a settling lawyer. We had some trial lawyers at the other place, but I wanted to do it my way and I wanted to fight my way. So what was it for you that made you want to open up your own shop and go out and what is the goal?

Anne Foster (: 00:18:14

Well, my goal has always been to help change people's lives, just period, full stop. Sometimes I get to do that one person at a time, one accident at a time, but sometimes in bigger cases it can save a lot of people. But the reason I went out on my own and it's so interesting, we talk about this and I tell people when you're in a defense firm, they are billing by the hour. They're writing their time down in 0.6 or six minute increments. Yeah,

Chris Hammons (: 00:18:57

Whatever that 0.15.

Anne Foster (: 00:18:59

And when you're doing plaintiff's work, their metrics are by the month, by the year. And I bring a case in that's a high value case, but I'm not going to get a number for two years, three years, sometimes four years. It just depends. And so there was a lot of friction, not with the people. The people we loved each other, but they did not know. I was the only person. They were great. They let me do it, but I was one of the only people there running plaintiff's cases. And once I got ahold of a couple plaintiff's cases, I just kept going. I'd found it. I found what I loved doing. I knew I loved trial, but now I got to help people. This is like everything I'd ever want in a job. I don't have a job anymore. I get to go play and help people and it's not a job anymore for me.

(: 00:20:05

But deciding to do that, I thought about it, but I grew up in a medium sized firm. I thought I could only try a case if I had a paralegal or two and a secretary and I was so fearful of not being able to do what I'd grown accustomed to doing without all of that. And then COVID hit and it turns out we can all do hard things.

Chris Hammons (: 00:20:36

We can make it work.

Anne Foster (: 00:20:37

And that was when I decided, okay, I got to do it. I went to my then partner, but at the time, he had started out as my summer associate, then my associate. And then we try all our cases together. He's my second chair. His name's Sam Smith and I told him what I was doing.

Chris Hammons (: 00:20:56

I had a dinner with-

Anne Foster (: 00:20:58

There you go. ... his watch

Chris Hammons (: 00:20:59

Last night.

Anne Foster (: 00:20:59

They're okay. Well, now you know Sam.

Chris Hammons (: 00:21:02

Yeah.

Anne Foster (: 00:21:02

He was a little louder than he normally is, but he was loving TLU.

Chris Hammons (: 00:21:07

He was loving some TLU last night, for sure, for

Anne Foster (: 00:21:10

Sure. And I told him I wanted to go out and asked him if he wanted to come and he said, "I've just been waiting for you to make your mind up." So we did it.

Chris Hammons (: 00:21:21

Yeah. It's always scary because you're going out and it's kind of eat what you kill and if you don't kill anything, there's nothing to eat. So it gets all scary.

Anne Foster (: 00:21:32

We thought it was just going to be the two of us. And then my husband told me about my third partner, Jamie King. We met with her, loved her. And so the three of us went out. The crazy part is my husband had conceived of the name we would call ourselves two years prior and reserved the website.

Chris Hammons (: 00:21:57

Wow.

Anne Foster (: 00:21:58

So he never told me, not until I came to him and said, "I think we're going to call ourselves Smith Foster King." And he said, "Well, that's good because I got a website two years ago."

Chris Hammons (: 00:22:07

That's pretty wild, right? That's pretty

Anne Foster (: 00:22:10

Wild. It was fun. It became a family affair.

Chris Hammons (: 00:22:12

Yeah, that's crazy. Well, if you don't mind, let's turn to the case. And from what I read, I want to make sure I'm right. I think that take us back. I think this was Veterans Day 2021, I think. And set the scene. I understand it was at a Topgolf in Oregon. Tell us what happened.

Anne Foster (: 00:22:39

It was Top Golf November of 2021. It was Veterans Day. It was a Thursday and the place was packed because it was a school holiday so there were lots and lots of kids. The birthday party that my client, the nine-year-old, was invited to, it was for a 10-year-old's birthday. There were 12 kids and two adults and mom of my kid drove there. It takes like half an hour to go from her home to Topgolf and she was working. It wasn't a holiday for her. So she decided that instead of driving back home a half hour, waiting 10 minutes and then driving back to pick him up, she'd lose like two hours of her day that she was just going to sit in the back and work on her computer. She's there working on her computer sitting at one of the couches, but the 10-year-old boys do what 10-year-old boys do.

(: 00:23:59

They're wrestling. There is a game at Topgolf called Angry Birds and they loved it and you can see them in the video because we got video. They're all watching the screens all over watching each other. They hit the ball and then they all run back to the screens to see how they did and then they watch the next one. Topgolf supposedly has the Bay host who serves all the drinks. They're also supposed to be the safety manager of the group. Topgolf is supposed to give them a safety conversation and a tour of the Bay That didn't happen. And it's admitted when we finally got her to come testify that she didn't do that. In fact, what we knew because we had video that none of the Bay hosts for any of the Bays gave safety tours.

Chris Hammons (: 00:25:05

Yeah. And just not to interrupt you, but I go to talk golf all the time. Do

Anne Foster (: 00:25:10

You know what a safety conversation? Never had

Chris Hammons (: 00:25:11

It. And I've been going for a

Anne Foster (: 00:25:13

While.

Chris Hammons (: 00:25:14

When I

Anne Foster (: 00:25:14

Heard that,

Chris Hammons (: 00:25:15

I thought, wow, I never had one. Honestly, never have.

Anne Foster (: 00:25:18

Well, they've got policies and procedures that say that every single time you're supposed to have a safety conversation and as far as we could tell, it never happened.

Chris Hammons (: 00:25:27

I'm a safety nut and when I'm there, I'm like, hold on to get back. That red line isn't far enough

Anne Foster (: 00:25:35

Behind anything.

Chris Hammons (: 00:25:36

It ain't far enough, period. I mean, we've had close call after close call. I've taken football teams, little kids and baseball teams up there to talk golf. And I'm telling you right now, we've had inches from kids getting splattered and that line isn't far enough back.

Anne Foster (: 00:25:54

And maybe

Chris Hammons (: 00:25:55

I'm wrong, but that damn line don't

Anne Foster (: 00:25:57

Seem far enough. What's nice to hear about that is you've gone there and you've been involved in sports and you're a coach, so you know to look for this. But when you've got two dads who've never played golf, they're total beginners, they don't know what the dangers are. And then you've got nine-year-old boys who have not been told and certainly haven't been told that time what to watch out for. It's not just that's a red line, but what's the danger if you cross it?

Chris Hammons (: 00:26:32

Yeah. Yeah.

Anne Foster (: 00:26:33

What's that harm?

Chris Hammons (: 00:26:34

Not everybody's dad's a plaintiff's lawyer to obsess with not stopping injury.

Anne Foster (: 00:26:40

Right.

Chris Hammons (: 00:26:40

I mean, seriously, most folks don't have a clue. They're there to have fun and the last

Anne Foster (: 00:26:46

Thing in their mind. It must be safe if they're doing it.

Chris Hammons (: 00:26:50

It's a huge facility. They're top of the line, everything. It must be safe. That's exactly it. But I've always wondered when I heard this case, I thought, "Man, I can't believe no one's called me yet on a case like this because people got to get hit."

Anne Foster (: 00:27:07

Yep. They got

Chris Hammons (: 00:27:07

To get

Anne Foster (: 00:27:08

Hit. So what we know happened was the kids all would run up past the red line when the Kubota would drive by to pick up the little balls and you could see that in the video and they're all on a baseball team together, these kids. And so instead of hitting the balls, they would throw balls like baseballs at the Kubota. And you can see this happen a couple of times, a couple of passes. You can see Top Golf employees walking by and nobody does anything. It's just sort of part of the course. And you could see it not just with our kids, but everybody else is doing the same thing.

(: 00:27:56

So there's no warning. There's no sense of on those two passes, get those kids back. There's some danger. So the parents who don't know any better don't perceive a danger with this. And what happens is our boy was standing, they called them coffins where they keep the golf balls, which was a nice touch. Yeah, no kidding. Our boy is standing right behind where the golf balls are. He is watching the bay to the left of him throw balls at the Kubota and the bay right of him, another 10 year old boy steps up, doesn't see our kid and our kid doesn't see him and swings, but they've never gotten any training on how to swing. They swing more like a baseball because they're on a baseball team. Then they swing like a golf ball and hits him and our boy goes down and turns out his head was caved in frontal lobe, three metal plates

(: 00:29:12

Permanent holding pieces of his skull there. Now here's the crazy part. I learned thanks to other plaintiff's lawyers that when Top Golf first started in Texas, their headquarters is in Texas, an insurance company, Philadelphia Insurance, hired a risk manager to visit all of the Topgolfs and provide recommendations on how to make the place safe. So as early as 2012, this accident happens in 2021, there were reports that people were walking across the red line, that the red line wasn't enough to keep people safe, that you need Did to do something else. Recommendations were put a railing up, put a barrier up so that they have to go through a gate or they can be stopped. They can't accidentally cross that red line and get hit and get injured. The risk manager had taken pictures of people standing exactly where our kid was, but seven years earlier saying, "This is the danger you need to protect against.

(: 00:30:32

You got to put up a barrier."

Chris Hammons (: 00:30:35

But a barrier would cost money.

Anne Foster (: 00:30:38

A barrier would cost money. Now, what Topgolf told us in the trial was it wasn't about the money. Safety was the most important thing. But the risk manager who no longer worked for Topgolf came and he said, "Well, they told me they didn't want to upset the open feeling of the area."

Chris Hammons (: 00:30:59

Yeah. Well, it's damn sure open. I mean, the last one I went to just here recently, the table we were sitting at, it felt

Anne Foster (: 00:31:08

Like- Had chips.

Chris Hammons (: 00:31:10

It felt like you could almost get hit from the table eating some wings. I felt like we were going to get smashed. I moved the chair around.

Anne Foster (: 00:31:20

You need to look at the posts between the bays, the posts holding it up. You could see dings and chips in all of them.

Chris Hammons (: 00:31:29

Yeah. That's incredible. Well, during the course of the case, was there a lot of the defense in this case, was it a lot of just blaming everybody else? I mean, blaming the parents, the supervisor, the party guy? So

Anne Foster (: 00:31:44

Originally we sued Topgolf and they third partied in the two dads that were hosting the party and mom and dad of my kid.

Chris Hammons (: 00:31:58

Really?

Anne Foster (: 00:31:59

They dropped dad really quickly because dad wasn't even there, but they kept mom in through until summary judgment when we got her out on. Really? There was nothing that she had done negligent. You have to do more than just sit there for negligence. You have to be outrageous as a parent in Oregon and mom got out. So the two dads that were hosts of the party were in plus Topgolf by the time we went to trial. But Topgolf was blaming everybody. I mean, they basically sued mom for being a bad mom and letting her kid go to Topgolf.

Chris Hammons (: 00:32:40

And how did you manage that at trial? I mean, listen, somebody could glom onto that.

Anne Foster (: 00:32:51

I

Chris Hammons (: 00:32:51

Mean, that's why I think your case was hard is there'd be a lot of people going, "Well, I wouldn't let my kid do that. " I'm that guy, right?

Anne Foster (: 00:32:58

Right.

Chris Hammons (: 00:32:59

I'm that

Anne Foster (: 00:32:59

Guy. Oh yes.

Chris Hammons (: 00:32:59

Talking about that did that thing. I've been a great jury for it, but I am that guy. I'm that guy that says, "There's no way I let my kid cross that line because I know they're going to get smashed in the head." How'd y'all handle that and the blame of the dad? I would have blamed the dad a little bit more. How did y'all handle that? I think that's an impressive part of this case is y'all dealt with that.

Anne Foster (: 00:33:21

So their defense was totally focused on that day and totally focused on the dads and the kid. He broke the rules. He crossed that red line. So it's his fault or he broke the rules. The dads knew better so it's their fault. That was theirs. It was all that. Now we started our case much like David Ball on damages talks about openings, talking about what did the defendant do. So we started our case back in 2012. There

Chris Hammons (: 00:34:00

You go.

Anne Foster (: 00:34:01

Talking about that we met the risk manager. We met the former safety director. We met the people that were told to put up a railing. And this was almost a decade before our guy got hit. And the other thing that we did is we focused on knowledge in premises liability cases. Did they know there was a danger? Even if they warned, which sometimes they argued that red line was a rule and sometimes they argued that red line was the warning, just the red line was a warning. But if you warn and that warning is not effective, you have an obligation to do something more. So I was always so irritated by their defense because they created a red line. It's not out there in the world. They made up a red line, called it a safety rule. New people were not safe as a result of it and still blamed the children for it.

(: 00:35:14

So we focused on what was going on the nine years and you know what was happening? They were told 10 plus times by people to put up a railing and they wouldn't do it. We had emails saying, "All right, we'll do it now." And they never did it. And at that same time they're going from two stores, four stores, up to 80 stores. Now they have a hundred stores across this nation all set up exactly the same way. So the same thing that they need to do when there were six stores and a recommendation, same layout now in a hundred stores and we had all the prior incidents. We didn't get all of them. The judge wouldn't give us nationally. He only gave us the West Coast, but we were able to take those numbers, only gave us the West Coast for the five years prior.

(: 00:36:18

We took those numbers and said even that, which was hundreds of injuries with over the majority of them involving children and 90% of them are strikes to the head and neck.

Chris Hammons (: 00:36:36

So you guys, that is the quintessential system failure. Y'all made this into something much bigger than that single day where the parents, maybe they did mess up that day, but the facility knew it all.

Anne Foster (: 00:36:52

Well, and then what was interesting about the messing up with the parents is we brought in an expert to talk about how human factors, right? You first have to perceive a danger to react to the danger to save someone, you first have to realize there is a danger and that day nobody was acting like it was crazy that kids ... I think there was, we counted, there was something like six birthday parties there, plus a couple of field trips taking up like six days at a time. All of those people were there and none of the employees were doing anything when the red lines ... So there was no way for these dads to perceive we got a problem.

Chris Hammons (: 00:37:56

Yeah. There was just no special action being taken.

Anne Foster (: 00:38:00

Nothing.

Chris Hammons (: 00:38:00

It's kind of like I was thinking when you said you got to perceive it, it's like if you go parachuting and your, I don't know, your kid has a parachute on, you think, "Well, he's going to be safe, but what if it doesn't open because it's not packed right?"

Anne Foster (: 00:38:13

Right. Right. Well,

Chris Hammons (: 00:38:14

You didn't know.

Anne Foster (: 00:38:15

No.

Chris Hammons (: 00:38:16

Yeah.

Anne Foster (: 00:38:17

And Topgolf knows that they are dealing with beginners, novices, people who have never golfed before. The other thing that we did is we gave Top Golf its dues where it was owed. They have brought a lot more people to golf introduce it in a fun way and a lot of those people, maybe not all of them, will go on to learn and be golfers, but they know they're dealing with beginners. There's nobody telling them how to hold the golf club, how to swing the golf club, identifying the dangers, noth.

Chris Hammons (: 00:39:02

All this good stuff that you got to expand this into more of a system failure, the head strikes, the prior knowledge I will call it, did you guys test that in any manner? Did y'all do focus groups and test that? Because that seems to be the game changer

Anne Foster (: 00:39:22

To

Chris Hammons (: 00:39:22

Expand this to something more than a single event.

Anne Foster (: 00:39:25

I got to tell you, the focus groups, I learned about it by listening to TLU podcasts. There's a couple, like maybe a year and a half ago, they're talking all about it. Somebody came on and went into great detail because I hadn't heard of it before. And you

Chris Hammons (: 00:39:41

Can find those on TLU on demand. If I don't say that, Dan would come out in Hammonds. You didn't mention TLU on demand.

Anne Foster (: 00:39:49

Oh my gosh. You

Chris Hammons (: 00:39:50

Can find all that on TLU on

Anne Foster (: 00:39:52

Demand. Yes. I have to tell you the other thing is I learned about it and I also, when I started listening to TLU podcast, I contacted Dan just because he was interviewing people and each time I would listen to the podcast I would get a little something from it. And it was great because I knew I had this big case. I knew it was important and I had to figure out a way to deal with that personal responsibility or it's the parent's fault. And TLU really helped me, really helped me on doing it. But the focus groups, which I got from the idea from TLU, we did a couple of them and I want to say I can remember we were combing through Topgolf's website and we found the pages on kids' birthday parties and there was a saying in that in one of the website that was, "You invite the kids, we'll take care of the rest." And that is, we just turned that into one of the mantras in the case.

Chris Hammons (: 00:41:18

Yeah, that's a nice tagline, honestly.

Anne Foster (: 00:41:22

But we found it and it really, the shifting point was when we used that in a focus group and we were dealing with a couple of people that were like, "It's all the parents' fault. I mean, come on. I would never let my kids go there." And we ran a couple of concepts by them in the focus group and that one stuck. I watched two parents say, "Oh, well, you should have told me that at the beginning." That would have changed my mind entirely. They said they'd take care of it.

Chris Hammons (: 00:42:04

Yeah, add that in to the opening, right? And I don't know the extent, it sounds like the young man was injured really badly, but brain injuries are tough

Anne Foster (: 00:42:19

Because

Chris Hammons (: 00:42:21

He probably healed up and probably looks fairly normal and hopefully he's doing better than I hope, but how do you deal with the brain injury and how do you tell the story? How did y'all overcome some of the ... Brain injuries are difficult to explain I think to people because just the smallest thing can ... It changes your life and it might not be when you say the words out to a juror, they may not get it. How did y'all deal with that where he might have had some more declines than I'm thinking, but I always think that as a very difficult thing to talk about in front of a jury as a brain

Anne Foster (: 00:43:01

Injury. Absolutely. So this is where breaking bread with your client and really getting to know them first. I'm in the rose

Chris Hammons (: 00:43:10

Though.

Anne Foster (: 00:43:12

A couple of things that we did. Now I feel like this brain injury was much easier to explain because I had a 3D picture of his skull with three titanium plates holding pieces of his skull in place and I had an MRI that had a big old white spot where the injury was, which in MRI speak means that part of the brain is dead. So unlike some of the cases I've had where your imaging on the macro level doesn't show anything, this one, I've got titanium plates and a dead spot, that was easier. But to really talk about, he's a nine year old kid, they've only met him four years after the incident. They don't know what he was like before. It was breaking bread at the home and really talking to the family and also finding the adult friends. Mom had a best friend that she'd had since college and they were still really good friends and best friend had married a guy that was just lovable.

(: 00:44:41

It's all get out. So we really talked about non-economic damages through best friend and best friend's husband because they could talk about how they would ... They played games with them. They were both teachers so they could speak more in depth about what a kid should be like at their age and what he's like now, but also real stories.

(: 00:45:13

In fact, I had a moment in dad. It was dad wasn't at the party so what happened was after the party, the two dads that are hosting were both doctors. One of those dads was a pediatrician hospitalist. He saw the injury and basically picked up the kid, ran to the car and drove them to the nearest hospital, didn't even wait for the ambulance, just got him to the hospital. The hospital they went to was not pediatric trauma. So while they're at that hospital, they realized we got to get you to pediatric trauma, so an ambulance takes them there. Dad met the family at the hospital when the ambulance pulled up, the pediatric hospital. And so dad, they were already, they deposed mom because she was a bad mom for being a parent. They weren't ready for dad. They'd never deposed him. Dad started talking and just hearing a dad talk about there was this moment where he said he started to get faint.

(: 00:46:29

They were at a teaching hospital in Portland, OHSU. There were probably 10 doctors around his son and he said, "I had a moment where I realized that's my boy. I'm losing my boy." And he said, "I got dizzy and I had to go outside and he started to cry about it on the stand and watching this big man

(: 00:47:00

Losing it about his son. I had to pause because I could not ask a question without tearing up myself. And finally, the judge looks at me, realizes what's going on because there's this awkwardly long pause and I finally said, Judge, can we take a break?" He's like, "Yeah, get out of here." Because he does not want me and I could not. I took a pause. I didn't look at anybody. I'm just trying to pull it together, but

Chris Hammons (: 00:47:33

It's tough when you know

Anne Foster (: 00:47:34

That

Chris Hammons (: 00:47:34

Well.

Anne Foster (: 00:47:35

Yes. I knew the right question to ask. I just didn't know it was going to hit me.

Chris Hammons (: 00:47:40

Yeah. I just tried two death cases in April back to back and they were brutal and I had several moments where I think just almost fatigue had taken over and trial's hard and it's emotional, there's death. And there's a couple times in that I had to stop and take a breather and collect myself a little bit and just I tried to just blow through it. But man, that's the tough part.

Anne Foster (: 00:48:11

It's when for me it's like this, I knew the story, but he said it just differently enough and said something like gut wrenching or fear. And he hadn't used those words and it was like, "Oh, those were good. They got me. " The other thing, just so talking about the brain injury, we gave stories. He had lost a lot of impulse control. He'd get angry. So we had stories and then in the closing I could just put up a picture and remind them of that story.

Chris Hammons (: 00:48:55

Yeah. Well, so for me, the moment in trial that always, I don't know, keeps me coming back, maybe satisfies some weird thing in me is when the jury's coming back out. I don't know. I don't even look at them. It's just the juice for me, right? But when you hear the number and it's a good one or whatever like this, how did that feel? I love that moment.

Anne Foster (: 00:49:26

Yes. I

Chris Hammons (: 00:49:27

Mean, did you look at your clients and it's like, "Hey, it meant something. We've changed this because this is a big number and it's a big change and it means everything more than just money I think for clients. It's like validation that they were right or the justice was there."

Anne Foster (: 00:49:45

So I could still remember that day and mom, Christina, is sitting next to me and you can tell she's just really worked up. I think she's torn a tissue into a million pieces and she's holding it in her hand. And the first question is read, "Were they negligent?" And the answer is yes. And she just sobbed. She knew don't do no large displays because the judge would get really mad at us in federal court, but she just went ... And then the question was, did the nine-year-old boy do anything wrong? No.

Chris Hammons (: 00:50:34

There's the

Anne Foster (: 00:50:34

Ball. And that was it.

Chris Hammons (: 00:50:37

Yeah. That's what they wanted to hear.

Anne Foster (: 00:50:38

Yeah.

Chris Hammons (: 00:50:39

That probably meant as much as-

Anne Foster (: 00:50:40

That was the world.

Chris Hammons (: 00:50:41

Yeah.

Anne Foster (: 00:50:42

That was the world that was-

Chris Hammons (: 00:50:48

That's the moment.

Anne Foster (: 00:50:49

Oh, that was amazing.

Chris Hammons (: 00:50:50

Yeah. And in just a bigger sense, I mean, to me, this is the work that we want to do as plaintiffs, because do you feel that Top Gulf might make some changes?

Anne Foster (: 00:51:07

Gosh, I really hope so.

Chris Hammons (: 00:51:08

Because I know that there's confidentiality surrounding and everybody's talking about what the punitives happened. And I know you've got confidentiality, all that. And we all can read between the lines of probably what happened.

Anne Foster (: 00:51:21

Well, you know what? We negotiated the heck out of that. I can say that the resolution was Topgolf paid the entire verdict plus an additional undisclosed amount to avoid going to punitive damages trial.

Chris Hammons (: 00:51:39

If you had something to say to a venue like this moving forward, and what would you tell them? If they came and asked you, "Man, you just drilled us. We're a trampoline park. We're a whatever park." What would you tell them? What would you tell

Anne Foster (: 00:51:56

Them? I mean, what Topgolf kept trying to say is, "We've got all these safety things in place." And what I finally said, it was with the safety director. I said, "Okay, you've got all these things in place. Are they working?" Because it doesn't seem like it's working to me, but are they working? Have you stopped, looked back at those and made a difference? You can't just be like, "Well, I put up a sign that says no running." If that's not doing it, you have to do more. So another big thing that Topgolf didn't do is anytime there was an incident, an incident report was filed, it was sent to the safety director. The safety director did not read a single incident report ever. There were just too many, she explained. I just couldn't find the time to do- Just couldn't find

Chris Hammons (: 00:52:52

The time to figure out why kids are getting smacked in the face

Anne Foster (: 00:52:55

With clubs. So questions like, do you know, is it kids or adults?

(: 00:53:03

What's the magnitude of harm? What kind of injury is this? The most they could say is they knew children were being injured, but they could not tell me how often. They could not tell me what parts of the body were being injured, but you have to do more. You can't just say, "I have some rules if nobody follows them." Even if everybody followed them, if that red line, which is what, a safety measure and a rule, if that's not stopping it, you have to do more. So at a trampoline park, if you're still getting people injured, you got to do

Chris Hammons (: 00:53:46

More. Yeah. I say it to people all the time, I do a lot of jail death cases and everybody has a good jail policy. Everybody, they come from the internet. Everybody, all these crappy jails that I go to, they all go like, "Man, look at our policy."

Anne Foster (: 00:54:03

We got a policy.

Chris Hammons (: 00:54:05

I'm always like, "But not one of your jailers staff knows anything about it and never does it. "

Anne Foster (: 00:54:12

I didn't follow it this time.

Chris Hammons (: 00:54:14

Yeah. It's policies and procedures, but if you have no procedure to actually follow these good policies or like this one, just it doesn't work. If it doesn't work, it's not a good practice. It's just not. I

Anne Foster (: 00:54:26

Mean,

Chris Hammons (: 00:54:27

That's the bottom

Anne Foster (: 00:54:28

Line.You have to evaluate. I mean, Topgolf's been around for decades now You have to stop and look, is it working? Now only there was testimony about this, but whenever, because I would get real, I would jump on it as soon as they would say it, they would be like, "Well, if you looked at the number of balls that were hit and the number of people that were injured, you could see that this is a safe place." I mean, that's candy and so they would never go for ... Are you telling me you're tracking injuries and comparing it to balls hit? Well, no, not me. I mean, I know I just mentioned it, because they didn't produce anything like that.

Chris Hammons (: 00:55:16

Yeah. And that's really comical actually. I mean, that's ridiculous. So just in closing, what I would like if a family that has a similar situation, I mean, we are seeing it. I'm going to start looking for this

Anne Foster (: 00:55:35

Because

Chris Hammons (: 00:55:35

I think it is serious. I've seen it almost happen a million times. If a family's listening right now and they think, man, they're sitting there going, "Well, my kid went across the line. I didn't do something." What would you tell that family right now if they were hearing this and need help from somebody that did this already? What would you tell them?

Anne Foster (: 00:55:59

First off, I would tell them, "I'm so sorry this happened to you because Topgolf knows it happens and they should have done something." They have cameras at Topgolf so there's video. It happens as far as we can tell once or twice every single day, every single year across the country. Wow. It's shocking. That means thousands of people are being injured. This is not your fault as a parent. This is not the fault of the person. They have screens all around the Bay. They have cameras and videos playing. They have music, top 40s, Z100 music playing at the top, as loud as they can go. This is action oriented, loud music playing and stuff is going on all over and they're more worried about the open air feeling than they are about protecting children from what they know happens every single day. It happens every single day and their own safety director doesn't even look at the reports

Chris Hammons (: 00:57:47

And I would tell them to call Smith Foster King in Portland and get somebody that's been into the battle, been into the fray. That's what I'd tell them. Well,

Anne Foster (: 00:57:58

Thank

Chris Hammons (: 00:57:59

You.

(: 00:57:59

And that's what I'll tell them in the future. Well, just wrapping it up, for me, I think this is a really interesting case, an important case, but I think it's ... I mean, kudos to you guys for taking it on because I think a lot of people would turn down this case. I think a lot of lawyers would be afraid of that kind of negative attribution. The parents, "Well, I wouldn't have done that. I wouldn't have seen that. " But man, taking that on and doing the work, digging back and finding that system failure I think is fantastic. Great verdict. You ought to be super proud of your clients. I'm sure you're proud of them for standing up for their little boy. Just a great result. I enjoyed looking into this case and appreciate it. You want to tell the audience how to get ahold of you?

Anne Foster (: 00:58:52

Yeah. I also want to say it wasn't just me doing this. I mean, as you know, it takes a whole village, a whole team. And I have two of the greatest partners in Sam Smith and Jamie King and I have some of the greatest staff and without them digging through the videos, digging through the incident reports, going through all the documents and there were tons and tons of documents we wouldn't be here today, but how to get ahold of me. My name is Anne Foster. I'm at afoster@sfklegal.com or you can call me on my cell phone, 503-475-1557. Leave me a message if I don't pick up and I will get back to you. And our Smith Foster King website is literally smithfosterking.com so you can find us.

Chris Hammons (: 00:59:53

And for all of you, go on TLU on demand, go to watch the TLU podcast, great They're just great resources for everybody. Amazing. And also, if you want to go work up your case and get fired up about it, go to one of Dan's bootcamps. He's relentless. He's not going to let you do anything but work, work, work

Anne Foster (: 01:00:13

On your

Chris Hammons (: 01:00:14

Case and get you better and put some tools in your tool bag. So other than that, thank you. Again, I'm Chris Hammons. If you need me to call me 405-659-4148 and I'll help you any way I can.

Anne Foster (: 01:00:26

Thank you so much, Chris. Thank you. This has been great. Thank you.