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JOHN WILEY CLARK AND WIFE, CYNTHIA CLARK v. CITY OF PASCAGOULA

APRIL 15, 1987

JOHN WILEY CLARK AND WIFE, CYNTHIA CLARK
v.
CITY OF PASCAGOULA, SILVER'S LOUNGE, INC., TRAVEL MOTOR INN, INC. AND MICHAEL VELARDO AND NICK VELARDO



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ:

DAN LEE, JUSTICE, FOR THE COURT:

This action was brought by John Wiley Clark and his wife, Cynthia, to recover for injuries sustained by Clark in a head-on collision with 19-year old Bruce Bosarge on January 10, 1980. Bosarge was killed in the accident. Clark's complaint, filed on March 1, 1983, alleged that Bosarge had become intoxicated at Silver's Lounge on the night before the incident. Silver's was owned and operated by the Velardo's, in space leased to them by the Travel Motor Inn. After leaving the lounge, Bosarge was involved in a minor traffic accident and was arrested for DWI.

He was arrested by Pascagoula Police after the 2:17 a.m. accident, and an intoxilizer test taken at about 3:30 a.m. showed a blood/alcohol result of .22%. Pascagoula police released Bosarge to his mother about an hour later, with instructions to keep him at home in bed for five hours. The fatal accident between Bosarge and Clark occurred approximately 2 1/4 hours after his release, at about 6:45 a.m. Bosarge was killed instantly, and Clark was rendered a quadriplegic. A blood sample drawn from Bosarge's body four hours later, at 10:35 a.m., showed his blood-alcohol content to be .08%.

 Clark originally sued the City of Pascagoula, Silver's Lounge, the Velardos, the Estate of Bruce Bosarge, Allstate Insurance, and Home Insurance. Allstate and Home Insurance were dismissed by the trial court prior to trial. The Estate of Bruce Bosarge settled immediately prior to trial by paying the plaintiffs $10,000, which was the amount of Bruce's insurance.

 The remaining defendants' case rested primarily on two points: 1) that the blood alcohol test taken after Bruce's death showed that he was not intoxicated at the time of the accident; and 2) that any negligence on their part was superseded by the action of Bosarge's parents in allowing him to drive before five hours had elapsed. Additionally, Travel Motor Inn defended on grounds that it was not the holder of the liquor license under which Bosarge was alleged to be served.

 The jury returned a verdict for all of the defendants. The Clarks have appealed, and assign as error forty items, which may be summarized as follows:

 1) Allowing Dr. Dore to testify as an expert witness for the defendants, even though he was not listed as a witness for them prior to trial.

 2) Allowing evidence of a blood chemical test taken from a sample drawn four hours after Bosarge's death.

 3) Excluding testimony from two witnesses for the plaintiffs regarding the alleged practice of Pascagoula Police of keeping DUI offenders in jail for five hours.

 4) Excluding testimony of one of the above-mentioned witnesses regarding his seeing Bosarge in Silver's Lounge the night before the accident.

 5) Setting aside a default judgment taken against Silver's

 Lounge and the Velardo's.

 6) Dismissing Allstate Insurance Company and Home Insurance Company.

 7) Erroneously instructing the jury that the Bosarge parents' actions, or the negligent driving of Bosarge, could be superseding, intervening causes of Clark's injuries.

 FACTS

 Nineteen-year-old Bruce Bosarge spent a good part of the late evening and early morning hours of January 9-10, 1980, drinking at Silver's Lounge. Laura Barrett, a waitress for Silver's, testified that she observed him drinking from a highball glass, and her impression was that he was visibly intoxicated.

 Silver's was a local disco owned and operated by Michael and Nick Velardo. They leased the space for the lounge from the Travel Motor Inn. Under the terms of the lease agreement, Silver's rental was based upon a percentage of its gross sales. Silver's was also obligated to keep the lounge open at certain times, and to provide room service to guests of the hotel. Although Silver's held the liquor license under which it operated, the lease provided that, upon termination, the license would go back to the Travel Motor Inn. At the time of this incident, the Travel Motor Inn was closed for repairs necessitated by Hurricane Frederick.

 Michael Velardo testified that he saw Bosarge in his club on the night of January 9 or the morning of January 10, and, realizing how intoxicated he was, told Larry Griffith, a club employee, to take him home. They left at about 1:45 a.m., Bosarge driving his orange Capri, and Griffith following.

 At approximately 2:17 a.m., Pascagoula Police received a report from Mrs. Debbie Ogle that a car had run over the chain link fence in her back yard, and was driving through her yard. When Officer Lee Oman arrived at the scene, Bosarge was attempting to back his car out of Mrs. Ogle's yard. It appeared that Bosarge had run over the fence and a bush, and that he was stopped by the fence at the other side of the yard. Bosarge's story was that he had been run off the road by another car; however, since he was obviously intoxicated, the police took him in custody. Griffith was allowed to drive Bosarge's car home.

 Bosarge took an intoxilizer test at the Pascagoula Police Department at about 3:30 a.m. It registered .22. Bosarge was told that he could make one phone call, and he called his mother, who came to the station to bail him out. The police did not check Bosarge's previous arrest record, which included possession of marijuana and paraphernalia, three speeding tickets, reckless driving, running a stop sign, no driver's license and no inspection sticker. Instead, the police released Bosarge to his mother, on the condition that she take him home, put him to bed, and not let him out for five hours. Bosarge, who appeared to be acting more normally than at the time of his arrest, was released in the custody of his mother at about 4:30 a.m.

 Mrs. Bosarge took Bruce home, and he went to bed. However, she did not keep him there for five hours, but woke him in time for him to get to work at 7:00 a.m. at Corning Glassworks. He got up and ate breakfast, but, before he left the house, Bruce and his father got into an argument about his DUI. Bruce apparently left ...


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