Split COA reverses for Notre Dame in woman’s negligence suit

A divided Indiana Court of Appeals panel on Tuesday reversed in favor of the University of Notre Dame in a negligence dispute brought by a woman who broke her shoulder after tripping during a basketball game.

While attending a Notre Dame women’s basketball game in December 2014, Carol Bahney tripped over a short riser set up in front of the stands and fell, breaking her shoulder. Two years after the accident, she sued the school, arguing that it “negligently failed to maintain a safe and unobstructed floor” and “failed to warn plaintiff of the floor’s defective condition[.]”

Photos taken by Notre Dame’s attorney of the area where Bahney fell showed tables and chairs set up on the edge of the riser, which Bahney’s primary liability witness testified were not there at the time of the fall. However, at a deposition held two weeks before trial, Notre Dame associate athletic director Monica Cundiff testified that she believed the tables and chairs were on the riser when Bahney fell, as depicted in the photograph.

Cundiff later found video of the game on YouTube and saw “that the tables weren’t there,” which was relayed to Notre Dame’s attorneys but not to Bahney, who learned of the information for the first time at jury trial. The jury ultimately found Bahney 90% at fault and entered a verdict for the school, though the trial court set aside the verdict on a motion for relief from judgment.

Calling its decision “a very close call,” the St. Joseph Superior Court ruled that Notre Dame failed to comply with Trial Rule 26(E) as to Cundiff’s incorrect deposition testimony. That noncompliance “likely interfered to some extent with the case Ms. Bahney would otherwise have presented,” the lower court held.

But a split Indiana Court of Appeals reversed in a Tuesday decision, disagreeing in University of Notre Dame v. Carol H. Bahney, 20A-CT-219.

“We agree with the trial court that Notre Dame’s failure to correct Cundiff’s deposition testimony before trial violated Trial Rule 26(E) and constituted ‘misconduct’ under Rule 60(B)(3), even if it was not an intentional concealment,” Judge Nancy Vaidik wrote for the appellate court, joined by the COA’s newest member, Judge Leanna Weissmann.

“However, we conclude that Bahney failed to show that this misconduct prevented her from fully and fairly presenting her case at trial,” Vaidik continued. “Such a showing is required because Rule 60(B)(3) ‘creates a limited exception to the general rule of finality of judgments.’ If a party cannot show that the misconduct ‘substantially prejudiced the party’s presentation of the party’s case, a court should not set aside an otherwise final judgment.’”

The majority also noted that Bahney had “every incentive” to secure photographs of the risers at issue in the two years before trial, and thus could not “blame that failure on Cundiff’s deposition testimony … .”

It therefore concluded, among other things, that Bahney did not establish that Notre Dame’s failure to correct Cundiff’s deposition testimony before trial “substantially prejudiced” her presentation of her case, and the trial court abused its discretion by ordering a new trial on that ground.

But dissenting from the majority’s reversal, Judge L. Mark Bailey in a separate opinion argued that the photographic misrepresentation – “presented early and often” – would have left an indelible impression on the jury.

“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,” Bailey wrote in dissent.

“I have little difficulty believing that, had there been discovery compliance, Bahney would have moved to exclude the photograph from evidence and/or to introduce the video. The video of game day, if authentic, would have been the best evidence of the metal riser configuration,” he opined.

“That said, we are not conducting a line item or de novo review of Notre Dame’s Trial Rule 26(E) compliance or Bahney’s trial choices and strategy. Rather, we are simply evaluating whether Bahney was entitled to equitable relief. Because I cannot say as a matter of law that it was an abuse of discretion, I respectfully dissent.”

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