“Rebuttal” Evidence Properly Excluded

Where a plaintiff made a tactical decision to withhold certain evidence during its case-in-chief and instead attempted to introduce the testimony as rebuttal evidence, the evidence was not be allowed and was deemed to “contradict [plaintiff’s] own proof.”

In Alumbaugh v. Wackenhut Corporation, No. M2016-01530-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2018), plaintiff’s father was shot and killed by an armed security guard at a Pilot travel center, and plaintiff filed this wrongful death action against the security guard company who employed the shooter. On the night of the incident, decedent and a female companion had been drinking heavily and were traveling home when decedent pulled his vehicle into the back lot of a Pilot, which was reserved for tractor-trailer trucks. During plaintiff’s case-in-chief, she presented the videotaped testimony of decedent’s female companion, who testified that decedent was standing in the passenger doorway of the car when the guard approached and that the altercation only lasted a few minutes. According to this testimony, decedent was the aggressor, the guard tried to calm decedent down, and the guard tried to handcuff decedent. While the guard was trying to call someone, decedent pushed the guard against a truck, overpowered him, and was on top of him when the guard pulled out his gun and shot decedent.

In defendant’s case-in-chief, it presented evidence that the guard had previously been in the army and that it had not received any complaints about the guard’s job performance, although a supervisor at Pilot “admitted that he had intervened between [the guard] and others on occasion.” The guard testified that on the night in question he tried to call for assistance, but that “the next thing he knew, [decedent] was on top of him, hitting his head and face,” and that “he felt a tug on his belt and believed the man was reaching for his gun” before the guard shot decedent.

After a jury trial, the trial court granted a directed verdict on plaintiff’s negligent supervision claim, but left the negligence and self-defense issue to the jury. The jury rejected the self-defense argument, but found decedent 63% at fault and defendant only 37% at fault, resulting in no damages for plaintiff. This appeal followed.

The first issue on appeal was plaintiff’s assertion that the trial court wrongly excluded certain evidence that plaintiff attempted to offer during the rebuttal after defendant’s case-in-chief. A detective testified as an expert for defendant, opining that the guard acted in self-defense. During this detective’s testimony, he mentioned that “Mr. and Mrs. Johnson had provided statements to the police,” and that Mrs. Johnson had called 911. After defendant concluded its proof, plaintiff attempted to show parts of Mr. and Mrs. Johnson’s video deposition wherein they described the altercation as an “intentional execution.”

“Rebuttal evidence explains or contradicts evidence presented for the first time during the defendant’s case.” (internal citation omitted). Here, however, “the plaintiff presented evidence in her case-in-chief from which the jury could find that [decedent] was the aggressor in the confrontation[,]” and “the defense evidence generally corroborated [this].” The trial court and Court of Appeals that no new evidence was introduced during defendant’s proof that would allow plaintiff to present rebuttal testimony. The Court reasoned:

[T]he Johnsons’ testimony was necessary for the plaintiff to establish her claim for punitive damages. …If anywhere, the Johnsons’ testimony belonged in the plaintiff’s case-in-chief, not in rebuttal. …[I]f truly offered for impeachment, only those portions of the Johnsons’ testimony that showed inconsistencies in the witness trial testimony should have been offered. Here, the plaintiff opposed limiting the Johnsons’ testimony to just those statements.

The trial court was not convinced that the plaintiff’s true purpose in offering the Johnsons’ testimony was impeachment. In the court’s view, the only reason the plaintiff saved this evidence for rebuttal was to obtain a tactical advantage: to make sure that the last thing the jury heard was testimony of these witnesses. The plaintiff’s counsel acknowledged that he had taken a calculated risk in saving this eyewitness testimony for rebuttal. The Johnsons were the plaintiff’s strongest witnesses; they presented a dramatically different version of events that contradicted even the plaintiff’s case-in-chief. Under the circumstances, the trial court did not abuse its discretion in excluding the Johnsons’ testimony as improper rebuttal.

(internal citations and quotations omitted).

The second issue in this case was whether the trial court correctly granted directed verdict on plaintiff’s punitive damages claim. The Court of Appeals affirmed the ruling, noting that plaintiff “conflates two separate concepts—the degree of care necessary when using a dangerous instrumentality and the level of culpability required to justify an award of punitive damages.” Plaintiff argued that “ordinary negligence may be considered gross negligence or recklessness when a gun is involved,” and that thus only ordinary negligence would be required to qualify for punitive damages in this case. The Court explained, however, that although the Restatement (Second) of Torts states that “those who deal with firearms…are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them,” this “heightened duty of care is not a springboard to punitive damages.” Here, the Court of Appeals agreed that no reasonable juror could find that the security guard company acted recklessly, as the evidence showed “an in-depth screening process and a comprehensive training program for its employees,” and that punitive damages would thus be inappropriate.

The Court of Appeals likewise affirmed directed verdict on the claim for negligent supervision, finding that plaintiff failed to show that defendant had any notice of misconduct by the guard that would “have some connection or relevance to the conduct that cause the injury.” (internal citation omitted). Although there was some question about the guard previously using handcuffs many times and whether defendant should have known about this, there was no evidence that the handcuff incidents “were wrongful or associated with physical violence,” and that those incidents would not have put defendant on notice that the altercation in question was foreseeable.

The Court of Appeals also affirmed the trial court’s refusal to allow plaintiff to amend her complaint at the close of proof to add a claim for false imprisonment, finding that defendant did not expressly or impliedly consent to try this claim, and affirming the refusal to give a jury instruction on missing evidence, as plaintiff did not make the required showing and the purportedly missing evidence was “not capable of shedding light on a material contested issue.” (internal citation omitted).

This case serves as an important reminder to carefully weigh the risks of withholding any evidence during your case-in-chief. Attempts to introduce evidence during the rebuttal portion of a trial may not be successful and may result in the jury not hearing an important piece of your case.