Market Tavern, Inc. v. Bowen

Decision Date01 September 1991
Docket NumberNo. 1345,1345
PartiesMARKET TAVERN, INC. v. Daniel M. BOWEN
CourtCourt of Special Appeals of Maryland

George W. Liebmann, Baltimore, for appellant.

Barry C. Steel, Towson, for appellee.

Argued before MOYLAN, CATHELL and MOTZ, JJ.

MOTZ, Judge.

The principal questions raised in this case concern the constitutionality and propriety of a punitive damages award. Because we believe that there was no error in that award or in any of the rulings of the court below, we affirm the judgment of the Circuit Court for Baltimore City (Prevas, J.).

I. Facts and Proceedings Below

The incident which gave rise to this action occurred on February 8, 1987. Appellee, Daniel M. Bowen ("Bowen"), then a senior at Lansdowne High School, was driven by some friends, as a delayed birthday present, to Hammerjacks, a large Baltimore bar owned and operated by appellant, Market Tavern, Inc. Hammerjacks is located in a building that was once a former industrial warehouse; it contains 14 bars with 28 bartenders, who serve at least 10,000 patrons a week in a facility capable of accommodating at least 1,600 people at any one time.

Hammerjacks security personnel are expected to exhibit a conspicuous presence so as to deter disturbances among the patrons. Although security employees are not permitted to hit or kick anyone, they are, depending upon the situation, authorized to grab boisterous patrons, to separate those involved in altercations and, if necessary, to eject those patrons from the premises. An ejection may involve security personnel bodily removing someone from the premises--action which they were authorized by Hammerjacks management to perform. At the time of this incident, there was evidence that security personnel wore distinctive black jackets with gold lettering saying "Hammerjacks Security." Although there was testimony that these jackets were also worn by others, Louis J. Principio, III, the President of Market Tavern, testified that Hammerjacks did not countenance the wearing of Hammerjacks Security jackets in the bar by anyone other than security personnel. Principio was aware of no occasion when someone other than a Hammerjacks employee wore one inside the premises of the bar.

After entering Hammerjacks, Bowen was treated by his friends to a "kamikaze shooter"--a potent concoction of vodka, tequila, and triple sec. Bowen, who was already somewhat inebriated and who had never before consumed hard liquor, became more inebriated after consuming at least three of these drinks. At that point, Bowen's friends left for other parts of Hammerjacks. Bowen remained where he was, and found a wall to lean against because by that time he was not certain if he could stand up on his own. Bowen did not remember many details after that, but did recall that he reached out and touched the hair of a passing female patron. "Someone" came up to him after that action and told him not to do it again. Unfortunately, Bowen did do it again. He was then "knocked on the ground" and "beaten on and kicked on." He could not see who had beaten him but did see that the two men who carried him out of the bar were dressed in Hammerjacks black and gold security jackets.

A highschool classmate of Bowen's, Deborah Szarko, who had frequented the bar enough times to know the head of Hammerjacks security and several Hammerjacks security personnel by name, was present at Hammerjacks that night. She witnessed the confrontation involving Bowen. Szarko identified the individuals who beat and kicked Bowen as Hammerjacks security personnel who were wearing "Hammerjacks Security" jackets. In fact, Ms. Szarko identified one of them by name as "Ed" or "Eddie." She also testified that the Hammerjacks general manager and security manager, Thomas Perry, was standing about 10 feet away when the incident occurred.

Soon after Bowen was deposited in the parking lot, one of his friends who had arrived at Hammerjacks with him came outside. The friend took Bowen to Saint Agnes Hospital where Bowen remained for several days. He had surgery to repair a broken jaw and was discharged on February 12.

Bowen reported the incident to Baltimore City police on February 11. After questioning Bowen and several witnesses, including Szarko, two police officers went to Hammerjacks on February 12, to inquire about two bouncers named "Sam" and "Ed" who, they had been told, might have been involved in the incident. The police officers testified that a Hammerjacks representative (Thomas Perry and/or Louis Principio) said that Edward Lloyd and Samuel Clemmons, who were employed as security personnel by Hammerjacks, were the "probable two people." One officer further testified that Perry or Principio "may have said" that Lloyd and Clemmons "were going to be fired"; the other officer testified that Principio said that "if somebody would kick somebody, they would be fired."

Principio, the President of Market Tavern, testified that he knew nothing about the incident and had not told the police that he was going to fire Lloyd or Clemmons. Hammerjacks employment records, however, showed that on the night of the incident, February 8, 1987, Edward Lloyd and Samuel Clemmons worked as security personnel and Thomas Perry worked as security manager. The employment records further indicated that both Lloyd and Clemmons were terminated on February 11, 1987. Principio testified that these terminations had no relation to the incident, although he stated he did not know precisely why these employees were terminated. Perry, Market Tavern's general manager at the time of the incident, did not testify.

Dr. John Mitcherling, an expert in dentistry and oral and maxillofacial surgery who treated Bowen from the time of Bowen's arrival in the hospital emergency room, testified as to Bowen's injuries and treatment. Dr. Mitcherling stated the nature of the fracture indicated that a "very severe blow" had caused Bowen's injury. Dr. Mitcherling described the surgery to repair Bowen's jaw, which also necessitated the jaw being wired shut until March 19, 1987, about six weeks after the incident. Bowen then underwent additional surgery to remove the wires, during which time four molars also were removed. Although the jaw healed properly, a wire was deliberately left after surgery which Dr. Mitcherling said is "normally not to be removed." Dr. Mitcherling testified that Bowen's teeth remain very sensitive to cold, which would be a permanent condition, and that Bowen was left with a permanent surgical scar on his jaw. Dr. Mitcherling confirmed the various bills and invoices that accompanied Bowen's surgery and treatment. He stated these charges were fair and reasonable, and all of Bowen's medical bills were admitted into evidence without objection.

Bowen testified he was unable to resume his regular activities for about three months after the incident. He had enlisted in the Marines and was worried about whether the Marines would still take him. During the time that Bowen's jaw was wired shut, he had to carry wire cutters with him at all times to cut the jaw wires should there ever be an incident where he would have to vomit, so that he would not "choke on my own vomit and die." Bowen stated that even to date his jaw sometimes hurts and his teeth are sensitive to hot and cold liquids.

At the conclusion of the plaintiff's case, Market Tavern moved for dismissal, contending there was insufficient evidence to show that the individuals who assaulted Bowen were Hammerjacks employees, or that they were acting in the scope of their employment. The motion was granted as to the negligence count, but denied as to the sole remaining count, alleging battery. Market Tavern put on no defense; it called no witnesses on its behalf. It did again move for judgment, which was denied.

After deliberation, the jury awarded Bowen $150,655.25 in compensatory damages (including $10,655.25 for past medical expenses) and $150,000.00 in punitive damages. Further facts will be set forth within as necessary.

On appeal, Market Tavern raises a host of issues. For the sake of clarity, we have reorganized, consolidated, and simplified those issues as follows:

1. The award of punitive damages was unconstitutional and otherwise improper.

2. Prior to trial, the trial court erred in denying Market Tavern's motion for continuance, in refusing to permit Market Tavern's "corporate counsel the right to examine witnesses," and in denying Market Tavern's motion in limine.

3. The trial court erred in denying a motion for new trial on the basis of newly discovered evidence.

4. There was insufficient evidence to prove that any battery was committed by Market Tavern employees or that Market Tavern employees acted within the scope of their employment in committing any battery.

5. There was insufficient evidence to justify the award of compensatory damages.

II. Punitive Damages

Market Tavern's principal challenge is to the constitutionality and legality of the jury's $150,000 punitive damages award.

A. Due Process

Market Tavern first asserts that "[t]he jury was given no guidance as to how to determine the amount of punitive damages" and the circuit court's post-trial review of the award was inadequate. The company claims that these defects require reversal under the standards set forth in Pacific Mut. Life Ins. Co. v. Haslip, --- U.S. ----, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and Alexander v. Evander, 88 Md.App. 672, 596 A.2d 687 (1991).

In determining whether a punitive damages award violated the Due Process Clause, the Supreme Court in Haslip focused on three aspects of the award: 1) the instructions given to guide the jury in determining whether and how much to award, 2) judicial oversight or review of the award, and 3) the amount of the award. Haslip, supra, 111 S.Ct. at 1044-46. The Court found the instructions before...

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