                                                            Supreme Court

                                                            No. 2013-352-Appeal.
                                                            (WC 10-613)

          Wayne Bitgood                   :

                 v.                       :

Gordon Greene Post Number 27 of the       :
        American Legion.




         NOTICE: This opinion is subject to formal revision before
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         notify the Opinion Analyst, Supreme Court of Rhode Island, 250
         Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
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                                                                    Supreme Court

                                                                    No. 2013-352-Appeal.
                                                                    (WC 10-613)

                Wayne Bitgood                    :

                       v.                        :

    Gordon Greene Post Number 27 of the          :
            American Legion.

                   Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

                                         OPINION

       Chief Justice Suttell, for the Court.         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.




                                               -1-
                                                   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.




                                                 -2-
        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 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



1
  McCoombs testified as an adverse witness; therefore much of her testimony on direct
examination by plaintiff’s counsel consisted of responding “yes” or “no” to counsel’s leading
questions, as well as acknowledging the accuracy of her prior deposition testimony.
                                               -3-
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 not needed because “[t]o the best of [his] knowledge,” everything was under

control at that point. Taft saw “no damage to the [premises], * * * nobody on the floor, and * * *

nobody fighting in the building.”

        Sergeant Robert Kenyon, a police officer with the Hopkinton Police Department, testified

that he was dispatched to Post 27 on the evening of the incident. He arrived less than two

minutes after the police station received the call about the disturbance.         Sergeant Kenyon

testified that, if he had been dispatched either during or immediately after the first altercation,

then, based on his location at that time, he would have arrived at Post 27 in five to six minutes

(i.e., prior to the second altercation).

        Several witnesses testified that defendant had a written policy in place for handling

emergency situations. The policy in effect on the date of the incident directed its staff to call the


                                                -4-
police when “a situation [got] out of control.” 2 A few months after the incident, defendant

changed its policy regarding when its staff were to call the police. Place testified that the new

policy directed staff to call the police “anytime there was even a verbal argument or * * * any

physical altercation.” Michael Alger, who took over as Post 27’s commander four months after

the incident, testified that he created this new policy after he took over as commander in part

because “the town licensing board demanded it to be written * * * [and] required [Post 27] to

have new guidelines.” The new policy also required bartenders to use a panic alarm whenever

they believed a disturbance either might occur or was occurring; the signal from that alarm went

directly to the Hopkinton Police Department.

       Baruti, who oversaw the investigation into the incident, expressed his opinions regarding

the standards of care for maintaining the safety and security of patrons in a bar following a

physical altercation, as well as the instructions provided to staff on handling physical altercations

that occur on the premises. 3 He testified that, based on his twenty-three years of experience, the

general standard of care “expected” by the law enforcement community was that police would be

called during or after each physical altercation “to secure that particular scene and make it safe,

not only for the patrons, but also for the people that you’re calling to the scene.” Baruti opined

that defendant had not met this standard of care because, if the police had been called after the



2
  The defendant’s Bar Management & Organizational Manual, section 10, paragraph 4 stated that
“in the event a situation gets out of control, call 911 and request the local police. Next call the
bar manager to inform of the situation.”
3
  While plaintiff’s counsel laid an extensive foundation upon which Baruti could have been
qualified to testify as an expert witness, the record does not reflect that Baruti was tendered to
the court for approval to testify as an expert. The record does reflect, however, that Baruti
provided expert opinion testimony without objection from defendant. In addition, in the trial
justice’s ruling on defendant’s motion for a new trial and/or remittitur, she treated Baruti’s
testimony as that of an expert in the area of public safety. At oral argument before this Court,
plaintiff’s counsel suggested that discussions occurred off the record in which the parties agreed
that Baruti would testify as an expert.
                                                -5-
first altercation, then the second altercation would not have occurred. As to the standard of care

for the policy and procedures that a bar should have had in place for bar staff confronted with a

physical altercation between patrons, Baruti testified that the policy should have been to

immediately report the event to the police. Baruti opined that defendant’s policy on February 4,

2009 did not meet the standard of care because it allowed the bartenders to make subjective

decisions about when a situation was out of control and therefore when to call the police.

       At the conclusion of all the testimony, plaintiff submitted several medical affidavits with

records and bills attached. The plaintiff testified that he sustained injuries that included a

“[l]acerated liver, broken back, damage to [his] right arm, gallbladder removed[,] * * * part of

[his] bowel and intestine [removed], and * * * colon damage.” He further testified that he spent

two weeks in the hospital, then two months at home recuperating. His mother, sister, and

nephew took turns looking after his daily needs, and he visited a primary care physician once a

month for two years. The plaintiff was admitted again to the hospital two years later on an

emergency admission to remove a stitch that had been left inside his abdomen from one of the

operations conducted immediately after the incident. The plaintiff testified that, during the

eighteen years before his injuries, he did “all construction work, concrete, running equipment, all

labor stuff,” either for “Triton Marine on the New London sub base” or at Cherenzia Excavation

in Westerly. The plaintiff began “light duty” work on a part-time basis four months after the

incident. His return to work was against his doctor’s recommendation, but plaintiff stated that he

“had bills to pay, no money coming in.” The plaintiff “pretty much” resumed normal duties and

full-time hours six months after the incident. At the end of the trial, plaintiff requested damages

that included reimbursement for medical bills, lost wages, and pain and suffering.




                                               -6-
       The jury returned a verdict that found both parties negligent and attributed eighty percent

of the negligence to defendant and twenty percent of the negligence to plaintiff. The jury

awarded $448,130 to plaintiff, which represented the full amount plaintiff had requested. After

reducing the award by twenty percent for plaintiff’s comparative negligence and adding statutory

interest at the rate of twelve percent, the total amount awarded to plaintiff was $543,433.13. The

defendant thereafter filed a motion for a new trial and/or remittitur (for a reapportionment of

comparative negligence) pursuant to Rule 59 of the Superior Court Rules of Civil Procedure. At

a hearing on June 13, 2013, the trial justice denied the motion. The defendant timely appealed.

                                                 II

                                       Standard of Review

       When a trial justice considers a motion for a new trial, she or he steps into the role of a

juror, reviews the evidence in light of the instructions previously given to the jury, and exercises

independent judgment regarding the credibility of the witnesses and the weight of the evidence.

Connor v. Schlemmer, 996 A.2d 98, 114 (R.I. 2010).

               “In carrying out the function of superjuror, the trial justice should
               adhere to the following principles: [t]he trial justice may accept
               some or all of the evidence. [He or she] may reject evidence that is
               impeached or contradicted by other positive testimony or
               circumstantial evidence. Or [he or she] may disregard testimony
               that contains inherent improbabilities or contradictions or which is
               totally at variance with undisputed physical facts or laws. [He or
               she] may also add to the evidence by drawing proper inferences.”
               Manning v. Bellafiore, 991 A.2d 399, 408 (R.I. 2010) (quoting
               Murray v. Bromley, 945 A.2d 330, 333 (R.I. 2008)).

       “The trial justice should allow the verdict to stand if he or she ‘determines that the

evidence is evenly balanced or is such that reasonable minds, in considering that same evidence,

could come to different conclusions * * *.’” Manning, 991 A.2d at 408 (quoting Seddon v. Duke,

884 A.2d 413, 413-14 (R.I. 2005) (mem.)). The trial justice sets aside a verdict “when [his or

                                               -7-
her] judgment tells [him or her] that it is wrong because it fails to respond truly to the merits of

the controversy and to administer substantial justice and is against the fair preponderance of the

evidence.” Connor, 996 A.2d at 115 (quoting Murray, 945 A.2d at 333). In his or her decision,

“the trial justice need not engage in an exhaustive review and analysis of all of the evidence and

testimony presented at trial * * * [but] need only make reference to such facts disclosed by the

testimony as have motivated his or her conclusion.” Bourdon’s, Inc. v. Ecin Industries, Inc., 704

A.2d 747, 758 (R.I. 1997) (quoting Kwarciak v. Star Market, 506 A.2d 545, 547 (R.I. 1986))

(emphasis omitted).

         This Court gives “great weight” to a trial justice’s ruling on a motion for a new trial.

Botelho v. Caster’s, Inc., 970 A.2d 541, 546 (R.I. 2009). This Court will affirm a trial justice’s

decision on a motion for a new trial “as long as the trial justice conducts the appropriate analysis,

does not overlook or misconceive material evidence, and is not otherwise clearly wrong.”

Connor, 996 A.2d at 115 (quoting Murray, 945 A.2d at 334). We conduct a similar review of a

trial justice’s decision on a motion for remittitur, and we determine whether he or she overlooked

or misconceived material evidence. See Lennon v. Dacomed Corp., 901 A.2d 582, 590 (R.I.

2006).

                                                III

                                            Discussion

                                                 A

                                     Motion for a New Trial

         The defendant argues that the trial justice was clearly wrong to deny its motion for a new

trial because the evidence was not evenly balanced. The defendant contends that the testimony

regarding Gardiner’s reputation was outweighed by the testimony from McCoombs, Place, and


                                                -8-
Taft that the police were not needed after the first altercation because the situation was under

control. Since the altercation was over and Gardiner had left the premises, defendant argues, it

did not breach its “duty to exercise reasonable care to protect [plaintiff] from reasonably

foreseeable harm at the hands of Gardiner” by not calling the police. The defendant highlights

the trial justice’s finding that McCoombs was credible and consistent in her testimony that she

did not believe that either the first altercation was out of control or that a second one would

occur.

         The plaintiff counters that, given the evidence on record regarding Gardiner’s reputation,

“a reasonably prudent person would have called the police” immediately upon the first sign of an

attack. The plaintiff also argues that the evidence presented regarding defendant’s change in

policy also supported the jury’s verdict because the adoption of the stricter policy was evidence

of defendant’s negligence.

         At the hearing on defendant’s motion, the trial justice articulated the standard of review

for a new trial motion and then summarized the evidence presented at trial. The trial justice

found that McCoombs, the only witness other than plaintiff who was both present in the barroom

and who testified in person at trial, was “credible and unwavering in her testimony that she did

not believe that the first altercation was out of control, or that there would be a second

altercation.” The trial justice also commented, however, that McCoombs twice testified to

locking the door after Gardiner left “to, quote, make sure that he did not come back in.” The trial

justice highlighted the undisputed fact that defendant changed its emergency situation policy

after the incident, and she commented that the jury was instructed that they could consider this

subsequent remedial measure when deciding whether defendant breached its duty. The trial

justice stated that the credible evidence established “not only that an altercation took place * * *


                                                -9-
but that Gardiner was known to the staff as having a reputation of being violent, that he was

acting obnoxious and belligerent and looking for a fight, that he set [plaintiff] as his target * * *.”

The trial justice concluded that “[t]he credible evidence presented was so evenly balanced and

such that different minds can naturally and fairly come to different conclusions on the

defendant’s liability for negligence. Accordingly, this Court is required to deny the motion for a

new trial.”

       Based on our review of the record, we are well satisfied that the trial justice engaged in

the appropriate analysis of defendant’s motion, neither overlooked nor misconceived material

evidence, and was not otherwise clearly wrong. When the evidence is evenly balanced, a jury

verdict must stand. Manning, 991 A.2d at 408. We therefore affirm the denial of defendant’s

motion for a new trial.

                                                  B

                                 Alternate Motion for Remittitur

       The defendant also argues that the trial justice was clearly wrong when she denied its

alternative motion for remittitur because this ruling “overlooked the inescapable conclusion that

there could not have been a second altercation if the first altercation did not occur and there

would not have been the first altercation if [plaintiff] had not voluntarily left the safety of his

barstool.” The defendant contends that the trial justice overlooked evidence that plaintiff’s

negligence was either equal to or greater than defendant’s negligence, including Place’s

testimony that plaintiff turned down an offer to call an ambulance and plaintiff’s failure to leave

its premises immediately after the first altercation. During oral argument before this Court,

defendant also asserted that the trial justice was remiss by not placing more weight on the




                                                - 10 -
reasonable inference that plaintiff chose to approach Gardiner prior to the first altercation

notwithstanding Gardiner’s reputation.

       A trial justice can employ the mechanism of remittitur to either “reassess an erroneous

damage award” or “correct a jury’s misapportionment of liability as it may relate to comparative

negligence.” Cotrona v. Johnson & Wales College, 501 A.2d 728, 734 (R.I. 1985). A remittitur

is appropriate when a “jury award clearly appears to be excessive or is found to be the result of

the jury’s passion and prejudice.” Lennon, 901 A.2d at 590.

       At the hearing, the trial justice noted that it:

               “was clear * * * that the plaintiff was negligent in getting out of his
               seat in the first instance and walking to where Gardiner was
               between the end of the bar and the door; the point at which the first
               altercation ensued. * * * [T]his was not a wise move for the
               plaintiff[] [a]nd the jury responded accordingly by finding him 20
               percent comparatively negligent.”

She ruled that “the apportionment rendered by the jury does respond truly to the merits of the

controversy.   It administers substantial justice, and is supported by the fair weight of the

evidence” because the worst of plaintiff’s injuries occurred during the second altercation. The

damage award was, therefore,

               “largely attributed to the events [that occurred] after it was
               determined that the police would not be called following the first
               altercation. It is only just that the apportionment reflect that the
               plaintiff’s negligence[,] while contributing to his injuries[,] was not
               the same or greater than [defendant’s] negligence for failing to
               protect the plaintiff from reasonably foreseeable harm at the hand
               of Gardiner by failing to call the police after the first altercation
               took place.”

       We are satisfied that the trial justice clearly engaged in a thorough analysis of the

defendant’s alternate motion for a reapportionment of the plaintiff’s comparative negligence.




                                                 - 11 -
There is no indication that the trial justice either overlooked or misconceived material evidence.

We therefore uphold her denial of the motion. See Lennon, 901 A.2d at 590.

                                                  IV

                                               Conclusion

       For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned to the Superior Court.


       Justice Flaherty did not participate.




                                                 - 12 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Wayne Bitgood v. Gordon Greene Post Number 27 of the
                      American Legion.

CASE NO:              No. 2013-352-Appeal.
                      (WC 10-613)

COURT:                Supreme Court

DATE OPINION FILED: January 16, 2015

JUSTICES:             Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Washington County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For Plaintiff: Eric B. DiMario, Esq.

                      For Defendant: Lewis J. Paras, Esq.
