Evans v. Buffington Harbor River Boats, LLC

• Decision Date: 08 December 2003
• Docket Number: No. 45A05-0212-CV-575.,45A05-0212-CV-575.
• Citation: 799 N.E.2d 1103
• Court: Indiana Appellate Court
• Parties: Lorean EVANS, Henry Evans, and Tom Vaughn, Trustee of the Bankruptcy Estate of Lorean Evans and Henry Evans, Appellants-Plaintiffs, v. BUFFINGTON HARBOR RIVER BOATS, LLC., Valet Parking Services, Inc., Huber, Hunt & Nichols, Inc., Design Workshop, Inc., Rieth-Riley Construction Co., Inc., Sosh Architects, and Cole Associates, Inc., Appellees-Defendants.

799 N.E.2d 1103

Lorean EVANS, Henry Evans, and Tom Vaughn, Trustee of the Bankruptcy Estate of Lorean Evans and Henry Evans, Appellants-Plaintiffs, v. BUFFINGTON HARBOR RIVER BOATS, LLC., Valet Parking Services, Inc., Huber, Hunt & Nichols, Inc., Design Workshop, Inc., Rieth-Riley Construction Co., Inc., Sosh Architects, and Cole Associates, Inc., Appellees-Defendants.

No. 45A05-0212-CV-575.

Court of Appeals of Indiana.

December 8, 2003.

Rehearing Denied January 29, 2004.

Kenneth J. Allen, James E. Brammer, Kenneth J. Allen & Associates, P.C., Valparaiso, IN, Attorneys for Appellants.

Patrick J. Fanning, Law Office Zurich American Insurance Group, Chicago, IL, Attorneys for Buffington Harbor Riverboats.

Richard P. Komyatte, Richard P. Komyatte & Associates, PC, Highland, IN, Attorneys for Design Workshop, Inc.

Dane L. Tubergen, Lynn E. Kalamaros, Hunt, Suedhoff, Kalamaros, LLP, Fort Wayne, IN, Attorneys for Cole Associates, Inc.

Ryan L. Leitch, Michael Patrick Dugan, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorneys for Huber, Hunt & Nicohols, Inc.

OPINION

SULLIVAN, Judge.

Lorean and Henry Evans appeal following the jury trial in which Lorean was awarded damages for injuries she received in a fall upon property owned by Buffington Harbor Riverboats, LLC. They present three issues for our review:¹

I. Whether the jury relied upon extraneous prejudicial information;

II. Whether the damage award was inadequate; and

III. Whether the trial court erred in granting summary judgment in favor of Huber, Hunt & Nichols, Inc. and Design Workshop, Inc.

Cole Associates, Inc., also a defendant in the trial court, cross appeals claiming that the trial court erred in denying its Motion for Summary Judgment. We perceive no reason to address this matter because the jury found no liability on the part of Cole. The net effect is as if Cole had been awarded the summary judgment. Valet Parking Services, Inc., which was found to be partly liable for Lorean's injuries, has not filed a brief in this appeal.

We affirm in part, reverse in part, and remand.²

Late in the evening hours of July 27, 1998, Lorean Evans finished an appointment she had at approximately 10:00 p.m. and went to a riverboat casino in Gary, arriving at approximately 1:00 a.m. She exited the casino at approximately 3:00 a.m. on July 28. She waited in line for several minutes to get her car. Eventually, a valet parking attendant gave her the keys to her car so that she could retrieve it herself. Lorean then walked across the driveway in front of the entrance to the casino pavilion upon what appeared to be a sidewalk.³ The concrete band progressed between a row of shrubs and ended at a retaining wall which dropped approximately thirty inches into the parking lot. Lorean fell when she stepped off of the concrete band into the parking lot. She injured her knee and had to have surgery to correct the fracture of her tibia plateau.

The following year, Lorean filed suit against Buffington Harbor Riverboats, LLC ("Buffington Harbor"), the Majestic Star Casino, LLC, and Trump Indiana, Inc. On March 13, 2000, both Majestic Star Casino and Trump Indiana were dismissed from the lawsuit by agreement of the parties. On April 14, 2000, Valet Parking Services, Inc. ("Valet Parking") and Huber, Hunt & Nichols, Inc. ("HHN") were added as defendants. Cole Associates, Inc., n/k/a DLZ, Indiana Inc. ("Cole"), was subsequently added as a defendant, as were Design Workshop, Inc., Rieth-Riley Construction Co., Inc., and SOSH Architects. On May 1, 2001, SOSH Architects was dismissed from the suit. Rieth-Riley sought summary judgment which Lorean did not challenge. Summary judgment was granted for Rieth-Riley on December 12, 2001. A hearing on the summary judgment motions filed by HHN, Design Workshop, and Cole was held on December 12, 2001. Summary judgment was granted for HHN and Design Workshop but denied for Cole.

A trial was conducted as to the liability of Buffington Harbor, Valet Parking, and Cole. After the presentation of a considerable amount of evidence, the jury determined that Lorean suffered total damages of $100,000. The jury determined that Lorean was 45% at fault for her fall. Further, the jury assigned 20% of the fault to Buffington Harbor and 35% to Valet Parking. The jury determined that Cole was 0% at fault. After applying the percentages of fault to the total amount of damages, the jury awarded Lorean $20,000 from Buffington Harbor and $35,000 from Valet Parking.⁴

I Juror Misconduct

The Evanses assert that the jury considered extraneous prejudicial information and that such information tainted the verdict. They contend that the trial court should have granted the motion for a new trial which they filed after learning about certain statements made during deliberations. Through a sworn affidavit, the alternate juror brought the following information to light:

"4. The first thing decided by the jury was that Henry Evans would be awarded zero damages since he was not physically injured nor present at the time of Lorean Evans' fall. Since Henry had not sustained any direct physical injury himself, he could receive no verdict according to the jury foreperson.

5. During deliberations, one juror with nursing experience stated that Lorean's future knee surgeries would be paid for by Medicare or Medicaid and that therefore the verdict should not include any amount for those surgeries. Therefore, no amount was included in the verdict for these surgeries.

6. The jury foreperson stated that she would not agree to any large damage award for the Evans' [sic] based upon the fact that the Evans' [sic] attorney was seen getting out of a black Mercedes-Benz automobile before trial. She advised the jury that the Evans' [sic] attorney would receive a percentage of the Evans' [sic] recovery, that he did not need any more money, and that she would not agree to any substantial verdict for the Evans [sic] because of the fact that their attorney would receive a portion of it.

7. Several jurors indicated that since Lorean Evans had been issued a `Player's Card' by the two casinos, that she must be a `compulsive gambler' and that she would likely gamble away any verdict received so that rendering any substantial verdict in the Evans' [sic] favor would amount to a waste of time and money." Appendix at 1447.

Indiana has long adhered to the rule prohibiting jurors from later impeaching their verdicts based upon the fear that the use of juror affidavits may defeat the jury's solemn acts under oath, open the door to post-trial jury tampering, and allow dissatisfied jurors to destroy a verdict after assenting. Griffin v. State, 754 N.E.2d 899, 902 (Ind.2001), aff'd on reh'g 763 N.E.2d 450 (Ind.2002). Indiana Evidence Rule 606(b) states:

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes."

See also Robinson v. State, 720 N.E.2d 1269, 1273 (Ind.Ct.App.1999).

We review a trial court's denial of a request for a new trial because of juror misconduct for an abuse of discretion, with the burden upon the appellant to show that the misconduct meets the prerequisites for a new trial. Griffin, 754 N.E.2d at 901.⁵ When reviewing a denial of a request for a new trial, we do not consider a juror's comments about how an outside influence affected the decision. Id. at 902-03 (stating that the fact that one juror says that the alternate's input affected her decision is not part of the analysis governing the request for a new trial). Because Federal Rule of Evidence 606(b) is similar to Indiana's Evidence Rule 606(b), federal practice may inform our analysis. Id. at 902. In addition, the legal bar to the impeachment of a verdict is greatest where the interchange between the jurors, and not a communication by a nonjuror, creates the problem. Ferguson v. State, 489 N.E.2d 508, 510 (Ind.1986).

We begin by noting that the alternate juror's allegations in regard to the jury's discussion that Henry be awarded zero damages and that Lorean was a compulsive gambler do not meet one of the three exceptions to Rule 606(b).⁶ While the Evanses have claimed that the allegations constituted extraneous prejudicial information, they were strictly comments by the jury upon the evidence presented, the inferences drawn from that evidence, and the jury's view of the law. Therefore, those two allegations of misconduct may not be considered as evidence of juror misconduct.⁷See Robinson, 720 N.E.2d at 1273 (holding that the rules of evidence do not allow the appellate court to "step inside the `head' of each jury member and to second-guess the complex manner in which the jury weighed the evidence and the law to reach its verdict").

Turning our attention to the two remaining allegations sworn to by the alternate juror, we conclude that the only exception under 606(b) in which they may fit is the category of extraneous prejudicial information improperly brought to the jury's attention. The allegations clearly do not reference drug or alcohol use by any juror, nor do they refer to an outside influence improperly brought upon a juror. See Johnson v. State, 700 N.E.2d 480, 481 (Ind. Ct.App.1998) (stating that exception (3) to 606(b) envi...