Clark v. City of Pascagoula

• Decision Date: 15 April 1987
• Docket Number: No. 56368,56368
• Citation: 507 So.2d 70
• Parties: John Wiley CLARK and Wife, Cynthia Clark v. CITY OF PASCAGOULA, Silver's Lounge, Inc., Travel Motor Inn, Inc. and Michael Velardo and Nick Velardo.
• Court: Mississippi Supreme Court

Page 70

507 So.2d 70

John Wiley CLARK and Wife, Cynthia Clark v. CITY OF PASCAGOULA, Silver's Lounge, Inc., Travel Motor Inn Inc. and Michael Velardo and Nick Velardo.

No. 56368.

Supreme Court of Mississippi.

April 15, 1987.

Rehearing Denied June 3, 1987.

Margaret P. Ellis, C.R. McRae, Pascagoula, for appellant.

Raymond L. Brown, Brown & Associates, Fielding L. Wright, James H. Heidelberg, Bryant, Stennis & Colingo, Pascagoula, for appellee.

Before WALKER, C.J., and DAN M. LEE and GRIFFIN, JJ:

DAN M. LEE, Justice, for the Court:

This action was brought by John Wiley Clark and his wife, Cynthia, to recover for injuries sustained by Clark in a head-on collision with 19-year old Bruce Bosarge on January 10, 1980. Bosarge was killed in the accident. Clark's complaint, filed on March 1, 1983, alleged that Bosarge had become intoxicated at Silver's Lounge on the night before the incident. Silver's was owned and operated by the Velardo's, in space leased to them by the Travel Motor Inn. After leaving the lounge, Bosarge was involved in a minor traffic accident and was arrested for DWI. He was arrested by Pascagoula Police after the 2:17 a.m. accident, and an intoxilizer test taken at about 3:30 a.m. showed a blood/alcohol result of .22%. Pascagoula police released Bosarge to his mother about an hour later, with instructions to keep him at home in bed for five hours. The fatal accident between Bosarge and Clark occurred approximately 2 1/4 hours after his release, at about 6:45 a.m. Bosarge was killed instantly, and Clark was rendered a quadriplegic. A blood sample drawn from Bosarge's body four hours later, at 10:35 a.m., showed his blood-alcohol content to be .08%.

Clark originally sued the City of Pascagoula, Silver's Lounge, the Velardos, the Estate of Bruce Bosarge, Allstate Insurance, and Home Insurance. Allstate and Home Insurance were dismissed by the trial court prior to trial. The Estate of Bruce Bosarge settled immediately prior to trial by paying the plaintiffs $10,000, which was the amount of Bruce's insurance.

The remaining defendants' case rested primarily on two points: 1) that the blood alcohol test taken after Bruce's death showed that he was not intoxicated at the time of the accident; and 2) that any negligence on their part was superseded by the action of Bosarge's parents in allowing him to drive before five hours had elapsed. Additionally, Travel Motor Inn defended on grounds that it was not the holder of the liquor license under which Bosarge was alleged to be served.

The jury returned a verdict for all of the defendants. The Clarks have appealed, and assign as error forty items, which may be summarized as follows:

1) Allowing Dr. Dore to testify as an expert witness for the defendants, even though he was not listed as a witness for them prior to trial.

2) Allowing evidence of a blood chemical test taken from a sample drawn four hours after Bosarge's death.

3) Excluding testimony from two witnesses for the plaintiffs regarding the alleged practice of Pascagoula Police of keeping DUI offenders in jail for five hours.

4) Excluding testimony of one of the above-mentioned witnesses regarding his seeing Bosarge in Silver's Lounge the night before the accident.

5) Setting aside a default judgment taken against Silver's Lounge and the Velardo's.

6) Dismissing Allstate Insurance Company and Home Insurance Company.

7) Erroneously instructing the jury that the Bosarge parents' actions, or the negligent driving of Bosarge, could be superseding, intervening causes of Clark's injuries.

FACTS

Nineteen-year-old Bruce Bosarge spent a good part of the late evening and early morning hours of January 9-10, 1980, drinking at Silver's Lounge. Laura Barrett, a waitress for Silver's, testified that she observed him drinking from a highball glass, and her impression was that he was visibly intoxicated.

Silver's was a local disco owned and operated by Michael and Nick Velardo. They leased the space for the lounge from the Travel Motor Inn. Under the terms of the lease agreement, Silver's rental was based upon a percentage of its gross sales. Silver's was also obligated to keep the lounge open at certain times, and to provide room service to guests of the hotel. Although Silver's held the liquor license under which it operated, the lease provided that, upon termination, the license would go back to the Travel Motor Inn. At the time of this incident, the Travel Motor Inn was closed for repairs necessitated by Hurricane Frederick.

Michael Velardo testified that he saw Bosarge in his club on the night of January 9 or the morning of January 10, and, realizing how intoxicated he was, told Larry Griffith, a club employee, to take him home. They left at about 1:45 a.m., Bosarge driving his orange Capri, and Griffith following.

At approximately 2:17 a.m., Pascagoula Police received a report from Mrs. Debbie Ogle that a car had run over the chain link fence in her back yard, and was driving through her yard. When Officer Lee Oman arrived at the scene, Bosarge was attempting to back his car out of Mrs. Ogle's yard. It appeared that Bosarge had run over the fence and a bush, and that he was stopped by the fence at the other side of the yard. Bosarge's story was that he had been run off the road by another car; however, since he was obviously intoxicated, the police took him in custody. Griffith was allowed to drive Bosarge's car home.

Bosarge took an intoxilizer test at the Pascagoula Police Department at about 3:30 a.m. It registered .22. Bosarge was told that he could make one phone call, and he called his mother, who came to the station to bail him out. The police did not check Bosarge's previous arrest record, which included possession of marijuana and paraphernalia, three speeding tickets, reckless driving, running a stop sign, no driver's license and no inspection sticker. Instead, the police released Bosarge to his mother, on the condition that she take him home, put him to bed, and not let him out for five hours. Bosarge, who appeared to be acting more normally than at the time of his arrest, was released in the custody of his mother at about 4:30 a.m.

Mrs. Bosarge took Bruce home, and he went to bed. However, she did not keep him there for five hours, but woke him in time for him to get to work at 7:00 a.m. at Corning Glassworks. He got up and ate breakfast, but, before he left the house, Bruce and his father got into an argument about his DUI. Bruce apparently left the house in an agitated condition, thinking that he was going to be late for work.

To get to Corning, Bruce had to travel down Industrial Road. Also on that road the morning of January 10 was Wiley Clark, a 23-year-old electrician who was giving a friend a lift to work. Wiley had just dropped his friend off and was heading north on Industrial Road, at about 50-55 mph, when he saw Bosarge's car heading south in the same lane. Several witnesses testified that Bosarge passed them that morning doing 70-75 mph. Bosarge was trying to pass several vehicles when it became obvious that he and Clark were about to collide. According to witness Charles Goode, Goode tried to pull off onto the shoulder so that Bosarge could get back into the proper lane. Clark also headed toward the opposite shoulder to avoid the collision. Bosarge, however, pulled off the road to the left, and his Capri hit Clark's Blazer head-on.

The impact killed Bosarge instantly; witnesses who stopped immediately testified that he had no pulse. Officer Douglas Anglada of the Mississippi Highway Patrol got a call on the accident at 6:58 a.m. and went immediately to investigate it. He testified that he could smell alcohol around Bosarge's car. Because of the smell, and because it was routine when there was an accident fatality, he requested an alcohol test on Bosarge. As stated earlier, the sample for the test was drawn at 10:30 a.m., and processed at about 12:45 p.m. and showed an alcohol level of .08%.

Clark was thrown from his vehicle on impact. He immediately realized that he was seriously injured, since he did not lose consciousness, but could not move his arms or legs. He testified that he found himself in a ditch choking on mud and grass, and had to clean his mouth out with his tongue. He was immediately taken to the emergency room where Dr. John McCloskey, a neurosurgeon, diagnosed him as having a broken neck.

According to Dr. McCloskey, Clark is a partial quadriplegic, as the result of having his seventh vertebrae crushed, and his sixth vertebrae moved forward onto it. He has no control of his back or legs, some control of his arms, control of his neck, and 1/2 of his ability to breathe. He is numb from his abdomen down.

Clark's injuries are, of course, catastrophic. He had two children--2 1/4 years old and 1 1/2 months old--at the time of the accident. Because of his injuries, he will spend the rest of his life in a wheelchair. Medical witnesses testified at length about the problems that Clark has suffered and will continue to suffer because of the incident. They also testified that, despite some periods of depression, Clark has made an excellent adjustment, due to his own mental attitude and the support of his wife and family. Since the accident, Clark has completed about 1/2 of the course toward a general business/accounting degree.

The Clarks originally sued the City of Pascagoula, Home Insurance, Silver's Lounge, the Velardo's, the Travel Motor Inn, the Estate of Bruce Bosarge, and Allstate Insurance Company, asking for $300,000.00--in actual damages and $1,000,000.00 in punitive damages. As stated earlier, the insurance companies were ultimately dismissed. Service upon Silver's Lounge and the Velardo's was had by serving attorney Fielding Wright. When these parties did not answer, a default judgment was taken against them. (The record is confusing on this point. The Appellant's Brief indicates that a default judgment was taken against all three of ...