Werner v. Nebal

Citation: Not availableDocket: 1-06-2322 Rel

Court: Appellate Court of Illinois; November 8, 2007; Illinois; State Appellate Court

Original Court Document: View Document

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Christine Nebal, owner of Club Alpine, was found jointly liable for injuries sustained by Bruce Werner during a physical altercation involving Al Barrans and John Doe, under Illinois's Dramshop Act, 235 ILCS 5/6-21 (2000). Nebal appeals the ruling, raising several points: 

1. The trial court’s refusal to provide a jury instruction on the provocation affirmative defense constituted reversible error.
2. The court erred by not giving the jury a verdict form that would allow for apportionment of damages among the defendants.
3. The trial court wrongly excluded testimony from a paramedic regarding Werner's admission of alcohol consumption before the incident.
4. Jury instructions included an incorrect statement of law.
5. The court’s refusal to admit evidence from a telephone conversation was a reversible error.
6. Testimony linking the altercation to a dispute over child support was improperly excluded.
7. The ambulance report should have been admitted as evidence.

The incident occurred on June 26, 2001, at Club Alpine and stemmed from a paternity dispute involving Werner and Katie Dougherty, who is related to Barrans. Tensions escalated following a threatening phone call from Werner to Mrs. Barrans on June 24, 2001. On the day of the altercation, Werner entered the tavern to meet a friend, leading to a confrontation with Barrans over child support, culminating in a physical fight. The court ultimately affirmed the trial court's decisions.

Tammy Gray, an employee at Club Alpine, witnessed an argument on June 26, 2001, between Mr. Werner and Mr. Barrans, which escalated into a physical altercation initiated by Mr. Werner after being ordered to leave the bar. Mr. Werner claimed he was attacked without provocation. Following the incident, paramedics treated Mr. Werner, who reported consuming eight beers that night, though only one was from Club Alpine. A paramedic noted signs of intoxication, such as slurred speech and unsteady walking. 

During pretrial conferences on January 27 and 30, 2006, Mr. Werner sought to exclude evidence of his prior alcohol consumption. The trial court ruled that this evidence was more prejudicial than probative but allowed the defense to introduce it if they could establish a connection between Mr. Werner's intoxication and his conduct during the altercation. Mr. Werner also moved to exclude evidence related to child support arrears and a paternity dispute, arguing that it would unfairly bias the jury. The court agreed to exclude evidence of unpaid child support while permitting discussion about the dispute itself.

Additionally, Mr. Werner sought to bar paramedic reports regarding his alcohol consumption, which the court granted, with a similar condition as before: evidence would be allowed if shown to relate to the treatment provided by the paramedics. Lastly, Mr. Werner aimed to exclude testimony regarding a telephone conversation with Mrs. Barrans, which the court limited to observations of the conversation, prohibiting any details about its content due to potential prejudice related to child support issues.

Trial commenced on April 11, 2006. Mr. Werner filed a motion to strike the affirmative defense of provocation, which the trial court denied, affirming that provocation is a valid defense in a Dramshop suit. Ms. Nebal sought to admit an ambulance report into evidence; however, the court ruled it inadmissible due to lack of proper foundation, as the report's authenticity was not sufficiently established. During jury instructions, the defense proposed a provocation instruction, which the court rejected, citing insufficient evidence. The court noted that provocation implies that Mr. Barrans was provoked to commit an act, but Barrans denied committing the offense, making provocation inapplicable. 

The parties submitted different jury instructions regarding the burden of proof concerning intoxication and liability. Ms. Nebal’s proposed verdict form called for damages to be apportioned among defendants, which the court denied, favoring a joint liability approach instead. During jury deliberations, the jury inquired about the exhibits and requested the ambulance report, to which the court affirmed the existing evidence sufficiency. The jury ultimately returned a verdict against Ms. Nebal and Mr. Barrans for $60,000, leading Ms. Nebal to file a timely appeal.

Ms. Nebal's appeal challenges the correctness of the issues and burden of proof instructions given at trial. The court maintains that under Illinois law, individuals injured by an intoxicated person can pursue actions against those licensed to sell alcohol who contributed to that intoxication. Trial courts have the discretion to determine jury instructions, which can only be overturned for abuse of discretion. Ms. Nebal argues that the use of "and/or" in the instructions was misleading, claiming it allowed Mr. Werner to avoid proving his case against each potential defendant. The court disagrees, asserting that the language was appropriate given the presence of two assailants and that the instructions required the jury to find Club Alpine liable only if its actions contributed to the intoxication. 

Additionally, Ms. Nebal contends that the trial court erred in excluding certain evidence: (1) Mr. Werner’s admission of alcohol consumption, (2) the details of a phone conversation between Mr. Werner and Kim Barrans, and (3) testimony regarding a dispute over child support arrears. The court asserts that the admission of evidence is at the trial court's discretion and should not be disturbed without clear abuse. It emphasizes that relevant evidence may be excluded if its prejudicial impact outweighs its probative value or if it could confuse the jury. The court concludes that the trial court did not abuse its discretion in excluding the evidence regarding child support arrears, as Ms. Nebal's theory attributing the altercation solely to that dispute was not sufficiently supported.

The trial court's limitation on discussing the alleged child support arrearage was justified to protect Mr. Werner from unfair prejudice while allowing Ms. Nebal to present her case. The court deemed it sufficient to refer to a "child support and paternity dispute," avoiding the potentially detrimental impact of indicating that child support was in arrears. The court did not abuse its discretion by excluding evidence of the specific conversations between Mr. Werner and Mrs. Barrans, concluding that while the specifics had probative value, they were outweighed by their prejudicial effect. Ms. Nebal's case was supported by other evidence, despite the exclusion of specific threats from the conversation.

Regarding the paramedics' testimony on Mr. Werner's alcohol consumption prior to the altercation, the court found it relevant but potentially confusing and overwhelmingly prejudicial. Although party admissions are generally admissible, the court determined that the risk of confusion and prejudice outweighed the value of the evidence. Therefore, the court's decision to bar the testimony was not an abuse of discretion. Lastly, the court's refusal to provide a jury instruction on the provocation affirmative defense was also upheld as appropriate.

Provocation can serve as a valid defense in Dramshop actions, but mere words and gestures do not meet the threshold for provocation. Parties are generally entitled to jury instructions on their theories if supported by evidence, although the decision to provide such instructions rests with the trial court's discretion. Dramshop cases require careful consideration of causation versus provocation. A new trial will only be granted if the refusal to give a provocation instruction significantly prejudiced the case. In this instance, the trial court found no basis for provocation based on the evidence, which indicated that Ms. Nebal claimed Mr. Barrans was the initial aggressor, rendering a provocation instruction conflicting and potentially confusing for the jury. 

Furthermore, even if a provocation instruction were warranted, Ms. Nebal was not seriously prejudiced by its absence, as the jury heard all relevant testimony and still found her liable. Regarding the jury verdict form, the trial court did not err in refusing to require apportionment of damages among defendants, as the abuse of discretion standard applies to such decisions. Under the Illinois Dramshop Act, individuals injured by intoxicated persons can hold licensed sellers of alcohol jointly or severally liable, and the evidence suggested that intoxication occurred at Ms. Nebal's establishment. 

Finally, the court's refusal to admit the ambulance report into evidence was not deemed reversible error, as medical records must meet specific foundational requirements to be admitted as business records.

In Kimble v. Earle M. Jorgenson Co., the presumption of accuracy for business records is established, but their admission can be restricted if deemed prejudicial, as noted in Troyan v. Reyes. The admission of such records undergoes a harmless error analysis, highlighted in In re Adoption of C.D. In this case, ambulance records indicating the plaintiff's prior intoxication were deemed too prejudicial by the trial court. The court's decision to limit this evidence was not seen as an abuse of discretion. Additionally, the refusal to admit the ambulance report was also upheld, as both paramedics testified about the relevant information at trial, asserting their belief that Mr. Werner was intoxicated. Despite the exclusion of the report, the jury found Ms. Nebal liable, indicating the decision's harmlessness. Consequently, the judgment of the circuit court of Cook County was affirmed, with judges Fitzgerald Smith and O'Mara Frossard concurring.