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Try McDonald's wrongful death case again, judge rules in Land O'Lakes case

DADE CITY — Circuit Judge Susan Gardner on Friday threw out the verdict in a wrongful death case brought by the parents of a man who died in a McDonald's parking lot brawl.

A jury awarded Wayne and Cathy Makowski $1 million in the trial last month, finding that the franchise owner of the Land O'Lakes McDonald's restaurant and the shopping center where it sits on U.S. 41 were negligent in allowing an unsafe environment at the 24-hour drive-through.

But in granting a new trial Friday, the judge said the totality of evidence in the trial supported the defendants, who had contended the death was the result of grown men drinking alcohol and making bad decisions.

Anthony Makowski, 21, died April 24, 2005, after getting into an argument with another patron at the drive-through. The argument turned into a brawl and Makowski was suffocated in a choke hold.

The Makowskis' attorneys argued that plaza owner B and B Cash Grocery Stores and Brickman Management, which owns the McDonald's, were obligated to hire off-duty police officers to maintain a safe climate in the parking lot that attracted late-night partiers.

Based on the raucous atmosphere, the plaintiffs said, the business owners should have foreseen the kind of violence that led to Makowski's death.

Gardner said that she erred in deciding before the trial that Martin Robles-Taylor, the man who fought Makowski, would not be listed as one of the parties responsible for the death.

That left the jury to determine who among McDonald's, the plaza owner and Makowski himself were responsible, and to what degree.

Robles-Taylor was not criminally charged in the case after prosecutors ruled it "excusable homicide."

Gardner decided to exclude him under the principle that to list the person who committed the homicide would sway the jury to find no responsibility on anyone else's part.

Friday, she said Robles-Taylor should have been on the jury verdict form because "there was no evidence that (he) knew or should have known that the behavior he engaged in was certain to cause death."

The case, which stretched over two weeks, was highly emotional and contentious.

The Makowskis wept on the witness stand over the death of their only child. The attorneys fought over the smallest of details. When the jurors returned with their verdict, several walked into the courtroom crying.

Cathy Makowski testified she would use any monetary award to set up a foundation in her son's name to help other people.

But defense attorney Steven Ngo argued Friday that was one of many features of the trial that amounted to "unfair prejudice" against his clients and called it "a play for sympathy."

The Makowskis were not in court Friday. Their attorney, Curt Obront, said he will appeal the decision granting a new trial.

"We'll persevere," he said.

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.

Try McDonald's wrongful death case again, judge rules in Land O'Lakes case 07/10/09 [Last modified: Saturday, July 11, 2009 8:26am]

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