Strack and Til, Inc. v. Sharon Carter (2/17/04 IndCtApp) [Torts]
Ratliff, Senior Judge
At around midnight on October 31, 1998, Carter entered Strack’s store to pick up some groceries. As Carter proceeded around the corner of an aisle to procure a box of cereal, she slipped and fell to the floor. Carter sustained numerous injuries, and she brought suit against Strack on the basis that Strack’s negligence caused her fall. The jury found that Strack was ninety-percent at fault and awarded Carter $504,000.00 in damages. Strack now appeals.The court here affirms the trial court, saying it committed no reversible error. An interesting footnote:
We agree with Judge Miller’s observation that the provision of Evid.R. 407 allowing a witness to be impeached by the party calling him “carries the seeds of the Rule’s self-destruction.” Indiana Practice: Courtroom Handbook on Indiana Evidence § 407.101, p. 499 (2000 ed). We further agree that “the trial court must carefully apply the relevancy test of Rule 401 and the balancing test of Rule 403 to evidence purportedly offered for a purpose other than that forbidden by Rule 407.” Id. at 500. There was no request in the present case that the trial court make such an application. We will not do so sua sponte.Posted by Marcia Oddi at February 17, 2004 05:59 PM