INDIANAPOLIS (Legal Newsline) – There will be no second chance for a woman who sued the University of Notre Dame after falling at a basketball game.
The Indiana Court of Appeals reached this decision Oct. 27 despite Notre Dame’s admitting that one of its employees had given incorrect information during a deposition, which was enough for the trial court to order a new trial after a jury ruled for the school.
The misconduct did not “substantially” prejudice the plaintiff, two out of three appeals judges hearing the case ruled.
The incident happened in December 2014 at a womens basketball game. Plaintiff Carol Bahney broke her shoulder when she tripped on a five-inch “riser” set up in front of the stands at the end of the court.
She claimed Notre Dame failed to maintain a safe and unobstructed floor. After suit was filed, Notre Dame sent a photo of the area in question to Bahney.
A woman also at the game testified the photo depicted the riser but tables and chairs were not on the riser at the time of the accident.
Notre Dame Associate Athletic Director Monica Cundiff testified two weeks before trial that she believed the tables and chairs were on the riser when Bahney fell. But a YouTube video showed she was wrong. She relayed that information to Notre Dame’s legal team during the trial.
But Notre Dame did not tell Bahney this information. It wasn’t until Cundiff took the stand that it was revealed the table and chairs weren’t there, much to Bahney’s surprise.
“She acknowledged that the tables and chairs being on the riser as depicted in the photograph would provide ‘a visual cue three or four feet off the ground that someone walking in this area can’t just continue to walk forward, you’re going to have to go to around this riser.’”
Still, Bahney was found 90% at fault by the jury. She complained after the trial about not being told of Cundiff’s revelation until her testimony in the middle of the trial.
The trial judge ordered a new trial, but the Court of Appeals says that is not necessary.
“(I)f Bahney thought she was prejudiced by the late disclosure of Cundiff, the proper remedy was not taking her chances at trial and then getting a new trial if things did not go her way,” Judge Nancy Vaidik wrote.
“Rather, she could have asked to reopen discovery or to push back the trial, or both, and asked for sanctions for the late disclosure. As far as we know, Bahney did none of those things.
“Moreover, Bahney does not specify what she could have or would have done to ‘follow up in more depth’ if she had more time. Therefore, we have no basis on which to conclude that the late disclosure of Cundiff prevented Bahney from fully and fairly presenting her case.”
Judge Mark Bailey dissented, saying the trial court was best positioned to evaluate whether Bahney was prejudiced by the late disclosure.
“The photographic misrepresentation – presented early and often – would have left an indelible impression on the jury,” he wrote.
“Yes, the jury was verbally informed that the photograph did not precisely depict the site of the fall, but then again, a picture is worth a thousand words.”