Lottery Loser

The Tennessee Court of Appeals affirmed a defendant’s verdict in a civil case

This case turns on whether the Plaintiff fell or was pushed from the stage at a Nashville music venue. This lawsuit came about when Tatum Campbell, the patron of an establishment in downtown Nashville, came onto the stage where musicians were performing and sustained injuries when one of the performers, Chris Bullard, attempted to escort her off the stage. Ms. Campbell alleged that Mr. Bullard negligently “dropped” her. Mr. Bullard disagreed. He asserted that Ms. Campbell was intoxicated and stepped backward off the stage. Ms. Campbell sustained a concussion and filed suit for $200,000 for lost earning capacity, pain and suffering, and loss of enjoyment of life, alleging that negligence on the part of Mr. Bullard caused her injuries. She also sued the bar, T.C. Restaurant Group, LLC, d/b/a Luke’s 32 Bridge Food + Drink (Luke’s), on the theory that Mr. Bullard was an agent of Luke’s and that therefore Luke’s was also vicariously liable for the injuries.

During opening statements, counsel for Mr. Bullard said to the jury, “And I would submit to you jurors that the theory of Mr. Bullard’s case is that Ms. Campbell hopes in this case to be a lottery lawsuit winner.” Counsel for Ms. Campbell objected, and the trial court instructed Mr. Bullard’s counsel to “move on.”

After the close of proof that day, Ms. Campbell’s counsel filed a written motion to prohibit further such references and for a curative instruction. The next day, Ms. Campbell’s counsel reiterated that he sought curative instructions and a prohibition on further similar statements and noted he “may still move for a mistrial depending on [how] strong the curative instruction is.”

The jury was instructed to disregard the comment and that counsel’s statements were not evidence.

Evidence

Regarding the evidence in the case, Mr. Bullard testified that he was performing at Luke’s and that, while his band was tuning their instruments, he offered a “birthday shoutout” to patrons celebrating their birthdays. Mr. Bullard denied that the “shout-out” was an invitation to come onto the stage, and he noted that other patrons celebrating birthdays did not attempt to come onto the stage. He further noted that “[i]t’s just common sense” not to get on a performance stage. Mr. Bullard testified that Ms. Campbell came onto the stage intoxicated and uninvited, that she did not respond to a request to leave, and that he used his free hand to try to guide her off the stage. He indicated that he believed she was intoxicated because she almost fell while getting onto the stage, was unsteady on her feet, and smelled of alcohol. Mr. Bullard stated that, after viewing surveillance video, he recalled that she turned as he was guiding her and attempted to kiss him. At this point, according to Mr. Bullard, “In her drunken haze, she steps backwards, loses her footing, and falls off the stage.” He denied that he dropped her. Mr. Bullard used the microphone to ask Ms. Campbell where her friends were in an effort to get her help after she fell; he denied this was a “taunt.” Video evidence of the fall and some surrounding events was introduced at trial.

Ms. Campbell, on the other hand, testified that Mr. Bullard “dropped” her. Ms. Campbell had arrived in town in the late morning on the day she went to Luke’s, and she had two alcoholic drinks with her friends and family during the afternoon. Around dinner, she had two White Claws and a shot of vodka, and the group went to Luke’s. At Luke’s, Ms. Campbell consumed an alcoholic drink, and she received another one which she did not consume. She stated that her group was near the stage and that Mr. Bullard interacted with them. Ms. Campbell was wearing a “happy birthday” tiara. Ms. Campbell believed that Mr. Bullard was inviting her on stage when he referenced a “birthday shoutout,” and she stepped up two to three feet to get onto the stage. Ms. Campbell testified she was not intoxicated but acknowledged she was “buzzed.” She testified that she appeared to lose her balance only because she was “squeezing between speakers.” Ms. Campbell denied that Mr. Bullard asked her to get off the stage, asserting instead, “He immediately put his hand on me and forcefully grabbed me and spun me around to the point where I couldn’t control my body. I couldn’t decide where I wanted to go, what I wanted to do. I was never asked. I was never guided. I was never given the opportunity to make a decision for myself.” She elaborated, “He spins me around, turns me around, drops me off the back of the stage. I immediately hit the concrete, fall on my back and my head.” Ms. Campbell stated that Mr. Bullard pushed her across the stage and then dropped her. She noted that there were no signs prohibiting her from getting on stage.

Affirmed

Ms. Campbell asserts that she is entitled to a new trial due to the cumulative effect of the “lottery” comment and the admission of evidence that she used medical leave. She cites to Mayo v. Shine, where the court concluded that an improper comment from the judge, while it “alone may not have risen to the level of reversible error, . . . was potentially prejudicial and, when considered together with the other errors as discussed in this Opinion, resulted in the Plaintiff being denied a fair trial.” 392 S.W.3d 61, 68 (Tenn. Ct. App. 2012).

Under Tennessee Rule of Appellate Procedure 36(b), “[a] final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R. App. P. 36(b). In the present case, in accordance with the reasoning set forth above, any errors at trial, individually or in the aggregate, do not rise to the level of affecting the judgment. Accordingly, we affirm.

(Mike Frisch)