The Indiana Court of Appeals on Monday affirmed judgment in favor of the owner of a Clarksville dinner theater in a negligence suit filed by an elderly woman who broke her hip at the theater.
While at the Derby Dinner Playhouse in Clarksville with her husband, Ruth Vigus fell off of the step leading up to her table and broke her hip. After the accident, Vigus filed a negligence suit against the Derby Dinner’s corporate owner, Dinner Theater of Indiana L.P., while her husband, Euguen, sued for loss of consortium.
During the course of the proceedings, both Vigus and her husband died and their daughter, Judy, took over the suit as administratrix of their estates. Throughout the proceedings, arguments arose between the parties concerning the height of the riser’s step and related building code violations, but a jury ultimately ruled in favor of the theater.
On appeal, Judy Vigus argued the Marion Superior Court erred when it revoked its pretrial order finding the theater had made a judicial admission on the question of a building code violation.
“The transcript reveals that the parties frequently talked past each other, and there was no clarity on the parameters of the judicial admission under discussion. The parties disagreed whether the Viguses’ table was located on a ‘step’ or a ‘riser,’ a fact material to the building code violation issue,” Judge Edward Najam wrote for the appellate court, upholding the trial court’s revocation. “And Theater’s counsel equivocated, saying that the height of the riser was only evidence of a building code violation, was a building code violation, and was not a building code violation. Given these and other ambiguities, we cannot say as a matter of law that the Theater’s counsel made a definitive, unequivocal judicial admission of a building code violation.
“… Even if the Theater had made a judicial admission, it was incumbent on Vigus to tender a jury instruction on the judicial admission,” Najam continued. “Vigus did not tender that instruction, and she has not preserved that issue for our review.”
Additionally, the COA panel determined the trial court did not abuse its discretion when it excluded from evidence communications between the theater’s owners, after Ruth’s fall, that they would seek a variance in the riser’s height rather than reduce that height.