 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Outback Steakhouse of Florida7/25/2005
FOR PUBLICATION
Outback Steakhouse appeals a judgment against it in a personal injury action brought by David and Lisa Markley. The Markleys were injured in an automobile collision with William Whitaker, who had been served alcohol at Outback. Outback raises seven issues on appeal, which we consolidate and restate as:
1. Whether a new trial is required based on the Markleys' failure in an interrogatory to disclose a witness' prior statement that Whitaker was intoxicated when Outback served him, or to inform Outback when that witness indicated she would recant her deposition testimony to the contrary;
2. Whether the trial court improperly declined to give an instruction on non-party fault Outback tendered;
3. Whether the trial court improperly limited Outback's impeachment of one of the Markleys' witnesses when the witness had, before trial, admitted he was guilty of wire fraud but the Markleys' counsel did not disclose that information to Outback or the court;
4. Whether the jury's award was artificially inflated due to the Markleys' reference in closing argument to punitive damages after the Markleys had agreed to drop their punitive damages claim and their failure to disclose a witness who would testify about special damages the Markleys suffered.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 21, 1997, the motorcycle the Markleys were riding was hit by a car driven by Whitaker. The Markleys were both seriously injured. David suffered a broken leg and ankle and an injury to his foot. He was unable to continue working as a millwright. Lisa's injuries were more serious. She had internal injuries, a fractured tibia and pelvis, and extensive damage to the urogenital and rectal area. She required numerous surgeries and was unable after the accident to have sexual intercourse or bear children.
Whitaker left the scene. Earlier that evening Whitaker had attended the opening of an Outback restaurant in Muncie where he had drinks. There was conflicting testimony as to his level of intoxication when he left Outback. Whitaker then proceeded to a bar called Van's, where he had more drinks. There was conflicting testimony as to whether the drinks he consumed at Van's contained alcohol. Whitaker left Van's between 10:30 and 11:00 p.m. and hit the Markleys on his way home.
The Markleys sued Outback in 1999, alleging Outback served alcohol to Whitaker when he was visibly intoxicated. Outback served interrogatories on the Markleys asking them to identify evidence on which they would rely on the issue of Whitaker's visible intoxication and to provide the names of persons with actual knowledge on that issue.
The Markleys' response included several names, but did not mention Patrice Roysdon,
who served drinks to Whitaker. Roysdon was a server employed by Outback, and she knew Whitaker. The response indicated the interrogatory would be supplemented as discovery proceeded.
In a post-trial deposition, Roysdon testified she told the Markleys' counsel in 1997, about a month after the accident, that she thought Whitaker was visibly intoxicated. The Markleys' counsel confirmed, both during the deposition and in a teleconference with the court during the deposition, that Roysdon had made that statement in 1997. In its motion to dismiss Outback's motion for relief from judgment, the Markleys' counsel stated Roysdon "shortly after [the accident], advised counsel for the Plaintiffs that William Whitaker was intoxicated when he was served alcohol at Outback." (Appellants' App. at 460) (emphasis in original).
However, the Markleys did not identify Roy
Page 1 2 3 4 5 6 7 8 Indiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|