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Phillips v. Fischer3/28/2002
JUDGMENT AFFIRMED.
This is an appeal from a verdict following a jury trial before Visiting Judge Norman A. Fuerst that awarded appellee John T. Phillips compensatory damages against appellants, Millenium EntertainmentComplex, Inc. and DBDC Management Co. ( Millenium ), on his personal injury claims. Millenium alleges that the judge improperly denied it the opportunity to question a witness upon redirect examination, mandating reversal. We affirm.
From the record we glean the following: On September 27, 1997, Phillips and some friends were at a bar near Jacobs Field called the Millenium. Edward A. Fischer, approximately six feet- six inches tall and weighing in excess of 250 pounds, was on the second-level dance floor and began to slam dance in an overly aggressive manner, disturbing other bar patrons. Dwight Chillious, part-owner of the bar, noticed this activity and, along with Millenium security personnel and his friend Mark D. Holt, intervened to quiet the disturbance. Fischer allegedly swung at Chillious, and successfully punched other security employees and Holt, before being temporarily subdued. As security personnel, with Chillious in the lead, escorted Fischer downstairs to the first floor, Fischer allegedly exchanged harsh words with Phillips, broke free from security and attacked him, causing Phillips to fall and sustain serious injuries to his legs. Eventually, Millenium security regained control of Fischer and he was arrested.
Phillips filed a complaint against Fisher, and against Chillious and David Thomas, as owners of the Millenium EntertainmentComplex, Inc. and individual security personnel, and later was permitted to amend it to name the corporation and the management company as defendants. He claimed that Millenium was negligently understaffed, that it provided inadequate security at the bar, and that Fischer had intentionally assaulted him. The jury returned a verdict in favor of Phillips against Millenium and Fischer for $80,000 in compensatory damages and for $160,000 in punitive damages against Fischer only. From this determination, Millenium appeals in one assignment of error. Fischer has not appealed.
THE TRIAL COURT ERRED IN AN ABUSE OF DISCRETION BY NOT ALLOWING REBUTTAL TESTIMONY FROM DEFENDANT DWIGHT CHILLIOUS.
During Phillips' presentation of his case, he called Chillious as upon cross-examination, and questioned him about the qualifications of the security personnel, the number of personnel working at the time of this incident and the size of the crowd at the bar that night. During Millenium's case-in-chief, Chillious described the factual events as they unfolded, and Phillips cross- examined him. When Millenium attempted to question Chillious on redirect examination, the judge, without comment, denied it that opportunity and, without objection or proffer of his testimony, it called its next witness. It claims here, without elaboration, that it had planned to have Chillious clarify his testimony about the facts of the incident, and that the failure to permit such testimony mandates reversal and remand for a new trial. We disagree.
Evid.R. 611(A) provides a judge with the authority to exercise "reasonable control over the mode and order of interrogating witnesses and presenting evidence." The control of redirect examination is within judicial discretion and a reversal upon that ground can be predicated upon nothing less than a clear abuse thereof. A decision to exclude evidence is not grounds for reversal unless the record clearly demonstrates the judge abused his discretion in so ruling and that the complaining party has suffered a material prejudice. An abuse of discretion connotes more than an error
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