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Bitgood v. Gordon Greene Post Number 27 of the American Legion

Supreme Court of Rhode Island

January 16, 2015

Wayne Bitgood
v.
Gordon Greene Post Number 27 of the American Legion

Washington County Superior Court. (WC 10-613). Associate Justice Kristin E. Rodgers.

For Plaintiff: Eric B. DiMario, Esq.

For Defendant: Lewis J. Paras, Esq.

Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ. Justice Flaherty did not participate.

OPINION

Page 1024

Suttell, Chief Justice

A barroom altercation led to a jury verdict awarding $448,130 in damages to the plaintiff, Wayne Bitgood, on his negligence claim against Gordon Greene Post Number 27 of the American Legion (Post 27 or defendant). The jury also determined that the plaintiff's own negligence was a proximate cause of his injuries and attributed twenty percent of the overall negligence to him. Post 27 now appeals from the Superior Court judgment, contending that the trial justice erred in denying its motion for a new trial and/or remittitur. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Page 1025

I

Facts and Travel

On the evening of February 4, 2009, Bitgood and Ryan Gardiner were patrons at the bar on defendant's premises. Two physical altercations occurred between the men; the first inside the bar, and the second in defendant's parking lot approximately ten to fifteen minutes later. The plaintiff sustained serious injuries, requiring a two-week stay in the hospital and two months at home to recover. In April 2010, plaintiff filed a complaint in the Providence County Superior Court, alleging that his injuries resulted from defendant's negligence. In its answer, defendant claimed comparative negligence and improper venue among various affirmative defenses. Pursuant to defendant's motion to change venue, the case was transferred to Washington County in July 2010. The case was tried before a jury in the Washington County Superior Court in May 2013.

While there was no dispute that Gardiner assaulted plaintiff twice within a fifteen-minute period, none of the trial witnesses relayed why or how the altercations began. The plaintiff testified that he had no memory of the incident. His last memory of the evening was driving his truck to the end of his driveway on his way to Post 27 to pick up a bartender who needed a ride home. The plaintiff stated that he had diabetes, and that if his blood sugar dropped too low " [he is] like in a blackout. [He] can still function but [he does not] know what [he is] doing." Daniel Baruti, the Hopkinton Police Department lieutenant who oversaw the investigation into the incident, testified that the investigation had not revealed how the first incident started.

Robin McCoombs, the bartender on duty the night of the incident, was the only trial witness other than plaintiff who was present in the barroom during the first altercation.[1] She testified that she had observed Gardiner that evening; she described him as belligerent, obnoxious, vulgar, antagonizing other patrons, and looking for a fight. McCoombs saw Gardiner repeatedly punch and kick plaintiff on the floor of the bar, but she did not see how the assault started because her back had been to plaintiff and Gardiner. McCoombs recalled, however, that, shortly before the first altercation began, plaintiff was seated at the bar and Gardiner walked past plaintiff on his way toward the door. From these observations and the location within the barroom of the first fracas, McCoombs inferred that plaintiff " had to walk" to the area of the " initial assault."

Jennifer Place's deposition testimony was read into the record at trial. She was defendant's bar manager, and she testified that Gardiner was " known to have a black belt in karate and he's known to get violent." On the night of the incident, Place was in the hall outside the barroom when the first altercation occurred. She recalled that she went into the bar when she heard yelling, and there she saw Gardiner and plaintiff " in a scuffle on the floor." Once the fighting was over, she watched Gardiner leave the premises and then she spoke with plaintiff. The plaintiff told Place that he was fine and was going to head home. Place stated that she was standing outside on the steps when Gardiner returned " about ten minutes" later. As soon as she realized that Gardiner had returned, she " yelled to the bartender to

Page 1026

call the police" and then told Gardiner to get back in his truck. She said that Gardiner replied, " [H]e cut me, he's a dead man." Place testified that she did not see the second altercation because she went inside, but that, after she saw Gardiner drive away, she observed plaintiff unconscious and bleeding. The police and rescue arrived minutes later.

At trial, it was undisputed that no one had called the police either during or immediately after the first assault. McCoombs testified that she had not called the police because she had not believed that Gardiner would return. McCoombs also stated that plaintiff had not asked her to call the police and declined her offer to call an ambulance. She acknowledged, however, that she locked the door behind Gardiner after he left. Place testified at her deposition that she had not believed that the police needed to be called after the first altercation. James R. Taft, Sr., then a member of defendant's executive board as finance officer and liaison between the bar manager and the executive board, was in defendant's basement on February 4, 2009 for a meeting. Taft's deposition, which was read into the record during trial, reflected that he went upstairs when he heard a " large commotion," but that " it was relatively calm in the bar when [he] got up there," and the police were ...


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