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Inc. v. Shearer

Court of Appeals of Indiana

December 29, 2017

Buddy & Pal's III, Inc., Appellant-Defendant,
Stephen Shearer, Appellee-Plaintiff.

         Appeal from the Lake Superior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04-1110-CT-226

          Attorney for Appellant David W. Westland Westland & Bennett, P.C. Hammond, Indiana

          Attorney for Appellee Joseph G. Bombagetti Kelly Law Offices Crown Point, Indiana

          BROWN, JUDGE.

         [¶1] Buddy & Pal's III, Inc., appeals from the trial court's denial of its motion for judgment on the evidence and motion to correct error. Buddy & Pal's raises two issues which we consolidate and restate as whether the trial court erred or abused its discretion in denying its motion for judgment on the evidence or its motion to correct error. We affirm.

         Facts and Procedural History

         [¶2] Steven Shearer went to a bar operated by Buddy & Pal's at approximately 10:00 or 11:00 p.m. on Saturday, January 16, 2010. Richard Coyle also went to the bar with Anthony Apato and others at about 10:00 or 10:30 p.m., parked behind the building, entered the bar, and danced and had bottles of beer. Coyle left the bar a short time before 2:00 a.m., warmed up his truck for five to ten minutes, and then pulled his truck around to pick up Apato. Shearer exited Buddy & Pal's. As Coyle's truck approached the entrance and as the truck was moving at approximately three to five miles per hour, Coyle's truck struck Shearer. Coyle kept driving.

         [¶3] Schererville Police Officer James Janson and other officers were standing on the sidewalk in front of the building near the entrance, and Officer Janson heard a commotion and people screaming, saw others attempting to attract his attention, was told that a pick-up truck had hit a pedestrian, and was pointed to the truck. As another officer tended to Shearer, Officer Janson entered his police vehicle, caught up with Coyle's truck which had traveled twenty or twenty-five yards to the exit of the parking lot, and activated his lights. Officer Janson exited his police vehicle, approached Coyle and asked him to exit his truck, placed Coyle in handcuffs, and had him sit in the back of the police vehicle. Officer Janson stood outside the police vehicle while he spoke to Coyle. Officer Janson noticed a very strong odor of an alcoholic beverage coming from Coyle's breath, that he was slurring and mumbling a lot, that he was spitting quite a bit while he was talking, and that his eyes were red, bloodshot, and very droopy. When Officer Janson asked him why he did not stop, he replied that he did not know and began to become irritated and use expletives. Officer Janson asked Coyle if he would submit to any field sobriety tests, a portable breath test, or a certified breath test, and Coyle replied that he would not. Officer Janson placed Coyle under arrest for driving while intoxicated and for fleeing the scene or hit and run.

         [¶4] In late October or early November of 2011, Shearer filed an action against Buddy & Pal's and Coyle.[1] Coyle settled with Shearer in February of 2015.[2] A jury trial was held in November 2016 at which the parties presented the testimony of Shearer, Shearer's mother, Officer Janson, Timothy Heidbreder, who was the owner of Buddy & Pal's, and a manager at Buddy & Pal's. Coyle and Apato were not present at the trial, and portions of their depositions were read into evidence, and a video deposition of Dr. Robert Hanlon who had examined Shearer was also presented.

         [¶5] Timothy Heidbreder, the owner of Buddy & Pal's, testified that Saturdays were the bar's busy nights and that, over the course of the evening, there might be 175 to 190 people there at one time. He indicated that, other than charging for drinks, servers do not keep track of how much a customer is consuming. He testified: "Our rule of thumb is, we'll have ten to twelve to one. In other words, if there's a hundred and twenty people there, we want ten people on the floor, whether they're bartenders, servers, security, people at the door checking ID's." Transcript Volume II at 54. When asked "[a]nd these shot girls, they sell trays of drinks, right, " Heidbreder answered affirmatively. Id. When asked if they have quotas to sell for the evening, he answered affirmatively, and when asked if the quotas are minimums, he answered "[n]o, not really" and "there's no minimums." Id. When asked if Buddy & Pal's had a policy regarding over-serving or signs of visible intoxication, Heidbreder replied affirmatively, and when asked how that was conveyed to servers and bartenders, he testified that it was given to them in written form to read and that the manager reviewed it with them line-by-line. He also testified that there were periodic training sessions or discussions by managers. The trial court admitted Buddy & Pal's employee policy manual, which stated that certain documents were required to be given or returned to the manager prior to the start of employment, including Buddy & Pal's Inc.'s Liquor/Beer Pouring Policy and Responsible Alcohol Service Acknowledgement form, and that certain types of conduct would result in immediate termination, including violations of its pouring policy.

         [¶6] In the portions of his deposition read into evidence, Coyle testified that, prior to arriving at Buddy & Pal's, he and Apato were at a friend's house and that he did not have anything to drink while there. He testified that he drove his truck, and Apato rode with him, to Buddy & Pal's and arrived "closer to ten." Id. at 153. Coyle testified he had "about two beers" of Miller Lite, that he did not have any shots, that the beer was in bottles, and that he paid using cash. Id. at 154. When asked "[w]as it out of like the beer tubs or was it from the bar, " Coyle answered "[f]rom the bar, " and when asked if he purchased them or if someone else bought them for him, he answered "I purchased them." Id. Coyle indicated he felt "fine" when he purchased and paid for his last beverage, that he felt "fine" when he left Buddy & Pal's, and that he was not intoxicated after he left. Id. at 147, 155. When asked "[w]hen you got into your . . . truck, did you feel the same as you did when you purchased the last beverage, " Coyle answered "I felt sober, " and when asked "[w]ould it be the same condition, " he replied "[b]etter." Id. at 147. He indicated that he felt "better" at the time he entered and began to drive his truck than when he purchased his last beverage. Id. Coyle testified "I heard people screaming like whoa, whoa, whoa, and that's when I pulled up and by the time I got it in park, a cop got me" and "I had pulled right up and as I put it in park he was already there" and "[h]e pulled right there and he yanked me out of the truck." Id. at 156-157.

         [¶7] Officer Janson testified that he had been a police officer for thirteen and one- half years and his duties included driving while intoxicated and alcohol related offenses, and he described signs of alcohol impairment. He testified that Buddy & Pal's closed at 2:00 a.m. and officers were present in the parking lot to make sure there were no problems. Officer Janson testified that, after he was pointed to the truck, he went after and caught up to Coyle, that "[i]t's not a huge parking lot but he probably made it maybe twenty, twenty-five yards and then he got to the exit where you edge the parking lot onto Route 30, " that "because everybody was leaving the bar the entrance and exit there was all just bottlenecked up with cars leaving and that's as far as he could go, " and that "[h]e couldn't go any further than that" and "[h]e got stuck in that traffic." Transcript Volume II at 94. Officer Janson testified that he detected "a very strong odor" of an alcoholic type beverage coming off of Coyle's breath, Coyle was slurring and mumbling a lot, he was spitting quite a bit while he was talking, [3] and his eyes were red, bloodshot, and very droopy. Officer Janson testified that, when he told Coyle that he thought he had hit a pedestrian in the parking lot, Coyle said "I know I did and then he began to cry." Id. at 95. He testified that he asked Coyle why he did not stop if he knew that he struck somebody and that Coyle responded "I don't know" and started to become a little irritated and use expletives. Id. He testified that, based on his education, training, and experience, the signs he observed of Coyle matched those he was taught to observe with regard to alcohol impairment. Officer Janson indicated that he arrested Coyle for operating while intoxicated and for fleeing the scene or hit and run. The probable cause affidavit indicated that Coyle struck a pedestrian with his vehicle in the Buddy & Pal's parking lot, the accident involved a personal injury, and Coyle left the scene of the accident and operated a vehicle while intoxicated. On cross-examination, Officer Janson agreed that, according to Coyle's plea agreement, Coyle pled guilty to the charge of failure to stop and the charge, as amended from operating while intoxicated, to reckless driving.

         [¶8] In the video deposition of Dr. Hanlon played for the jury, Dr. Hanlon testified that he was a clinical neuropsychologist and that he performed an evaluation of Shearer on October 9, 2013, which included a review of his medical records, an interview of Shearer's mother, and an interview and series of tests of Shearer. Dr. Hanlon testified that, following his evaluation, he diagnosed Shearer as having somatic symptom disorder and testified that the stress Shearer experienced following the accident was the triggering element that resulted in his disorder. Dr. Hanlon testified that he did not doubt that Shearer experienced physical pain and symptoms at the time of the accident and afterwards but that "over time . . . that then just morphed into as he physically recovered from it, it converted from the true physical symptoms into psychologically based complaints" and stated that some persons with the disorder do not believe they have a psychiatric condition, they strongly believe that they have a physical disorder, and "[t]hey generally will resist attempts by doctors, psychologists, psychiatrists, neurologists, etcetera to convince them that their condition is actually a psychiatric one and not a physical one." Id. at 172. On cross-examination, Dr. Hanlon indicated that Shearer's cognitive functions are all intact, that he performed consistently within normal limits with respect to all cognitive intellectual functions, and there was no evidence of brain injury.

         [¶9] Shearer testified on cross-examination that he was not sure what Dr. Hanlon diagnosed him with and that he was not familiar with Dr. Hanlon's diagnosis. Shearer indicated that he did not know whether Dr. Hanlon had said that he had somatic symptom disorder. Shearer indicated that Dr. Hanlon did not communicate to him that the pain he said he was experiencing was generated by his mind or psyche, and when asked if anyone had told him that, he answered "like some relatives or they might say like they think it's all in my head" and that he "would explain to them that it's - it's to my back. I know this - You know, it's my back and my neck and my head." Id. at 220-221. Shearer indicated that he did not believe that his injuries were all in his head. Counsel for Buddy & Pal's asked Shearer "[a]re you asking the jury to award you money for an injury - this Somatic Symptom Disorder, " and Shearer replied "[n]o sir, I am not." Id. at 221. When asked "[a]re you asking for the physical injuries you're . . . claiming, " he stated "[u]m, I'm not sure that I'm asking for that, " and when asked "[f]or the physical injury, " he said "[y]eah, not particularly, just that, you know, itself." Id. When asked "[b]ut, you're sure you're not asking for the Somatic Symptom Disorder, " he answered "[y]eah, I'm not - I'm not asking for that." Id. On redirect examination, Shearer's counsel asked Shearer if he was asking ...

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