NO. 95-327
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
EMMA L. PESCHKE and WILLIAM PESCHKE,
individually and on behalf of
BYLLI PESCHKE and ALICE PESCHKE,
minors; and HOPE PESCHKE,
Plaintiffs and Appellants,
v.
CARROLL COLLEGE,
Defendant and Respondent
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
James D. Walen; Stacey & Walen;
Billings, Montana
Norman H. Grosfield; Utick & Grosfield;
Helena, Montana
For Respondent:
Thomas Q. Johnson; Keller, Reynolds, Drake,
Johnson & Gillespie; Helena, Montana
Submitted on Briefs: November 7, 1996
Decided: December 23, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Plaintiffs appeal from the judgment entered by the First
Judicial District Court, Lewis and Clark County, which ordered that
plaintiffs take nothing by reason of their complaint against
Carroll College for negligence surrounding a shooting incident
which occurred on the Carroll campus. We affirm.
The issues on appeal are as follows:
1. Was there substantial evidence to support the jury
verdict?
2. Did the District Court properly instruct the jury?
3. Did the District Court err by allowing the jury to view
a video-taped reenactment of the events which occurred prior to the
shooting incident?
FACTS
The fact are not in dispute. In May 1990, summer school was
in session at Carroll College. Emma Peschke was working in the
school cafeteria located on campus in the Carroll Commons. She was
a food service employee for the Marriott Corporation which had the
food service contract at Carroll.
At approximately 3:00 p.m. on May 18, 1990, Father Humphrey J.
Courtney had taken his mother to the chapel located in Borromeo
Hall where he was conducting Mass. When Father Courtney got to the
front door of the chapel he encountered John Aills and a woman
companion, Marie Terese. He told Aills and Terese that they would
have to keep quiet if they were going to stay in the chapel. Aills
and Terese followed Father Courtney into the chapel. Father
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Courtney left the chapel to find a chair for his mother and then
went back to the sacristy to prepare for Mass. When Father
Courtney came out of the sacristy and before he started Mass, he
observed that Aills had a hand gun that was stuck in the front of
his trousers.
Father Courtney started the Mass and Aills began to make
noises and disrupt things by hollering and banging on a pew.
Father Courtney testified that Aills' demeanor was boisterous and
loud, and that Aills was making grunting or hooting noises. He
decided to ask Aills to leave the chapel and walked up to the pew
area where he could talk to Aills face to face. He was able to
smell alcohol on Aills' breath and felt that Aills was probably
drunk. Father Courtney approached Aills, took him by the arm and
escorted him out into the hallway of the dormitory building.
Father Courtney then went back to the chapel and was unaware of
Aills' subsequent actions. Aills left the chapel, entered the
college cafeteria, and shot Peschke and one other Marriott
employee. Peschke was shot in the chest and hospitalized, and the
other employee died from her injuries.
On December 3, 1992, Peschke and her family, consisting of
husband William and daughters Bylli, Alice, Teresa, and Hope, filed
a complaint for negligence and a demand for jury trial against
Carroll seeking compensatory and special damages. The complaint
alleged that Carroll, through its agents and employees,
specifically Father Courtney and others who observed Aills prior to
the shooting, was negligent by failing to warn others or call
3
campus security or local police to have Aills arrested, disarmed,
or removed from campus. Teresa's claim for loss of consortium was
dismissed prior to trial since she was over the age of eighteen.
A jury trial was conducted between April 17 and 25, 1995. The
jury returned a special verdict finding that Carroll was not
negligent. On April 28, 1995, the District Court entered judgment.
Peschke filed a motion for a new trial, which the court denied on
June 13, 1995. This appeal followed
ISSUE 1
Was there substantial evidence to support the jury verdict?
In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court
discussed our standard of review of a jury verdict in a civil case:
Our scope of review of jury verdicts is necessarily
very limited. This Court will not reverse a jury verdict
which is supported by substantial credible evidence.
This Court has defined substantial credible evidence as
evidence which a reasonable mind might accept as adequate
to support a conclusion. The evidence may be inherently
weak and conflicting, yet it may still be considered
substantial. It is well established that if the evidence
is conflicting, it is within the province of the jury to
determine the weight and credibility to be afforded the
evidence. Finally, upon reviewing a jury verdict to
determine if substantial credible evidence exists to
support the verdict, this Court must view the evidence in
the light most favorable to the prevailing party.
Kane
-r 893 P.2d at 857 (quoting Hansen v. Hansen (1992), 254 Mont.
152, 157, 835 P.2d 748, 750-51).
The tort of negligence has four elements: (1) existence of a
duty; (2) breach of that duty; (3) causation; and (4) damages.
U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 68, 831
4
P.2d 586, 588-89. A plaintiff must establish all of these elements
to succeed on an action in negligence. Camp, 831 P.2d at 589.
In the present case, a special verdict form was provided to
the jury. The relevant questions on the special verdict were as
follows:
QUESTION NO. 1: Was the defendant, Carroll College, negligent?
ANSWER: Yes No
If you answered Question No. 1 "No", the Foreperson will date
and sign the verdict. You will notify the bailiff, who will
return you to Court. If you answered Question No. 1 "Yes",
then answer Question No. 2.
QUESTION NO. 2: Was the negligence of Carroll College a cause
in fact of the injuries and damages to the plaintiffs?
ANSWER: Yes No
If you answered Question No. 2 "No", the Foreperson will date
and sign the verdict. You will notify the bailiff, who will
return you to Court. If you answered Question No. 2 "Yes",
then answer Question No. 3.
QUESTION NO. 3: Was the negligence of defendant Carroll
College a proximate cause of the plaintiffs' injuries and
damages?
ANSWER: Yes No
If you answered Question No. 3 "No", the Foreperson will date
and sign the verdict. You will notify the bailiff, who will
return you to Court. If you answered Question No. 3 "Yes",
then answer both Question No. 4 and Question No. 5. [dealing
with damage amounts].
The jury found that Carroll was not negligent and answered the
first question "No." As a result, it did not answer any further
questions.
The parties agree that the issue during trial was whether
Carroll breached its duty. If it did, then that element of the
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pvimafacie case of negligence would have been met and then, and only
then, would the jury have had to move on to Questions 2 and 3
relating to causation. By checking "No" to Question No. 1, the
jury found that Carroll had not breached its duty. Moreover, the
parties agree that the issue on appeal is whether there was
substantial evidence to support the jury's finding that Carroll did
not breach its duty. Peschke states in her brief that "[w]e need
not concern ourselves with the issues of cause in fact or proximate
cause. "
The pretrial order, to which the parties agreed, stated that:
Defendant had the duty to provide reasonable security and
a reasonably safe place to work, as well as to maintain
its premises in a reasonably safe condition for
individuals lawfully on its premises. This may include
a duty to warn when reasonable and when the danger is
reasonably foreseeable.
The District Court adopted the foregoing language verbatim into its
Instruction No. 10 given to the jury.
Peschke argues on appeal that, given Father Courtney's duty to
act as an ordinarily careful person under the circumstances, he
should have arrested, disarmed, or removed Aills from the campus
under the circumstances that existed at the time. She points to
evidence that Aills was obviously intoxicated; had no business
being on campus; was loud, boisterous, and disruptive; and was in
possession of a handgun.
Peschke also argues that it was not only Father Courtney who
was negligent. Peschke claims she presented evidence to show that
there was a complete lack of security on the Carroll campus, which
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may have led to the laxity of Father Courtney and other employees.
She notes that at the time of the shooting incident, Carroll did
not have a campus police or security department, but relied on the
Helena Police Department to provide security. Peschke points out
that there was no specific policy regarding intoxicated persons on
campus and that it was a judgment call as to whether someone who
was intoxicated should be removed from campus. Here, Peschke
maintains no judgment was exercised.
Peschke also points out that others observed Aills prior to
the shooting. Todd Little, a Carroll student and member of the
grounds crew, Margaret Hoy, a student who was working at the desk
in Borromeo Hall, and Joyce Schnablegger, a janitor who was doing
cleaning work in the dormitory building prior to the shooting, all
observed Aills on campus before the shooting. Peschke notes that,
while none of these individuals saw a gun, they most likely would
have reported Aills before he ever made his way inside the chapel
had they been advised as to what procedure to follow with regard to
a drunken transient on campus.
Peschke called Mark Warrington to testify as a security
expert. Warrington was critical of Carroll for not posting the 911
emergency telephone number on all of its telephones and handbooks.
He also criticized Carroll for its lack of radio communications,
claiming that only one member of the Carroll crew had a radio.
Peschke is correct in asserting that she presented substantial
evidence in support of her claim that Father Courtney, and
therefore, Carroll, breached the duty to provide reasonable
security and a reasonably safe place to work, as well as to
maintain its premises in a reasonably safe condition, which may
have included the duty to warn when reasonable and when danger was
foreseeable. However, Carroll presented evidence contrary to
Peschke's. In this regard, the jury heard evidence that there had
never before been a serious problem at Carroll caused by transients
or homeless people visiting or passing through the campus. The
jury also heard testimony that there had never before been a
serious crime--defined as murder, rape, assault or armed robbery--
at Carroll.
Father Courtney testified that Terese mentioned Father
Kirchen, another campus priest, which indicated that she was not a
stranger to campus. Father Courtney stated that he did not observe
Aills threaten anyone or be abusive to anyone. He did see Aills
with a handgun, but testified that he was not brandishing the gun
or waving it around in any fashion. Father Courtney testified that
Aills did not resist when he ushered Aills out of the chapel.
Little testified that he had seen Aills and Terese near campus
two different times prior to the shooting and that he was never
close enough to Aills to determine whether Aills was intoxicated or
not. Hoy stated that Aills and Terese looked like they had been on
campus before and knew where they were going. She stated that,
although she talked to Terese, she never talked to Aills and was
not ever close enough to Aills to determine if he was intoxicated.
Schnablegger stated that she was never afraid, nor felt threatened
by the couple at any time.
8
Carroll's cross-examination of Warrington produced testimony
that Warrington had not reviewed crime statistics for Carroll or
for the city of Helena and/or Lewis and Clark County. He had never
been to the Carroll campus or to the City of Helena prior to the
evening before his testimony. Furthermore, there was testimony
that, although the 911 number was capable of being used, it was
still in the testing process and was not published for use at the
time. Testimony also revealed that all of the desk clerks had
radios and could communicate with one another and the "night man."
In this case, the jury was presented with conflicting evidence
regarding whether Carroll breached its duty. It determined that no
breach had occurred. It is within the province of the jury to
determine the weight to be given to evidence presented and to judge
the credibility of witnesses, and in reviewing the jury's verdict,
we must view the evidence in the light most favorable to the
prevailing party. See Hogan v. Flathead Health Center, Inc.
(1992)) 255 Mont. 388, 842 P.2d 335; Silvis Through Silvis v. Hobbs
(1992), 251 Mont. 407, 824 P.2d 1013. We conclude that when the
evidence in this case is viewed in the light most favorable to
Carroll, the jury's verdict is supported by substantial credible
evidence.
ISSUE 2
Did the District Court properly instruct the jury?
We have previously stated that the district court has
discretion when it decides how to instruct the jury, taking into
consideration the parties' theories, and that we will not overturn
9
the court's decision absent an abuse of discretion. Cechovic v.
Hardin & Associates, Inc. (1995), 273 Mont. 104, 116, 902 P.2d 520,
527 (citing Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259,
267, 856 P.2d 217, 222). When we examine whether jury instructions
were properly given or refused, we consider the instructions in
their entirety, as well as in connection with the other
instructions given and the evidence at trial. Cechovic, 902 P.2d
at 527.
Peschke argues that the District Court erred when it refused
Peschke's proposed Instruction Nos. 12, 18, 18A, 19, and 20.
Peschke also argues that the court erred when it gave its
Instruction No. 12 over Peschke's objection. We address her
arguments in turn.
Peschke's proposed Instruction No. 12 read as follows:
You are instructed that defendant was negligent as a
matter of law. The plaintiffs have the burden of
proving:
1. That the plaintiff Emma Peschke was injured.
2. That defendant Carroll College's negligence was both
the cause in fact and the proximate cause of the injury
to Emma Peschke.
3. The amount of money that will compensate Emma
Peschke for her injury.
Peschke requested this instruction based on her contention that
Carroll had breached its duty and was therefore negligent as a
matter of law. However, this matter is resolved by our decision in
Issue 1 that substantial credible evidence supports the jury's
verdict that Carroll was not negligent, that is, that Carroll did
10
not breach its duty to provide reasonable security and a reasonably
safe place to work, as well as to maintain its premises in a
reasonably safe condition, which may have included the duty to warn
when reasonable and when danger was foreseeable.
Peschke's proposed Instruction No. 12 would have essentially
directed a verdict for her on the negligence issue. A directed
verdict is proper only in the complete absence of any evidence to
warrant submission to the jury. Head v. Central Reserve Life of
North America (1993), 256 Mont. 188, 199, 845 P.2d 735, 742. See
also Rule 50(a), M.R.Civ.P. Here, in light of our holding in
Issue 1 that there was substantial evidence to support the jury's
verdict that Carroll was not negligent, there was certainly not a
complete absence of any evidence to submit to the jury, and a
directed verdict was therefore not proper. We conclude that the
District Court did not abuse its discretion in refusing Peschke's
proposed Instruction NO. 12.
Instruction No. 12 given by the District Court, to which
Peschke objected, is a verbatim recitation of Montana Pattern
Instruction 2.04 and reads as follows:
Every person has a right to assume that every other
person will act with reasonable care. In the absence of
a reason to think otherwise, it is not negligent for a
person to fail to anticipate an injury which can only
result from another's violation of the law or failure to
use reasonable care.
Peschke argues that this instruction, while not an inaccurate
statement of the law, is incomplete with regard to anticipation of
criminal conduct on Carroll's premises. Peschke maintains that the
11
jury should have been instructed that Carroll had a duty to take
precaution to protect persons lawfully on campus from criminal
conduct. She notes that this is not a case of a customer walking
into a fast food restaurant and suddenly firing into a crowd.
Here, according to Peschke, Carroll, through its agents, had
contact and conversation with Aills, and noticed that he was in
possession of a firearm and was intoxicated.
Peschke's argument falls short of the mark in that it fails to
take into account the key language of Instruction No. 12 that
states 'I [iln the absence of a reason to think otherwise." The
instruction does not, as Peschke contends, instruct that it is not
negligent not to anticipate Aills' criminal conduct. It
specifically poses the question of whether the circumstances
created a reason to think otherwise. Peschke argues that there was
a reason to think otherwise, and Carroll argues that there was not.
This was precisely the issue that was before the jury. The jury
found in Carroll's favor, and we have held in Issue 1 that there
was substantial evidence to support the jury's verdict.
Moreover, we examine jury instructions in their entirety.
Cechovic, 902 P.Zd at 527. The court's Instruction No. 10 read as
follows:
Defendant had the duty to provide reasonable security and
a reasonably safe place to work, as well as to maintain
its premises in a reasonably safe condition for
individuals lawfully on its premises. This may include
a duty to warn when reasonable and when the danger is
reasonably foreseeable.
12
This instruction correctly sets forth the law applicable to this
case. When read together with the court's Instruction No. 12, it
fully and fairly instructed the jury on Peschke's theory of the
case. The law requires nothing more. See Cechovic, 902 P.2d at
527-28. We therefore conclude that the District Court did not
abuse its discretion when it gave its Instruction No. 12 over
Peschke's objection.
Peschke's proposed Instruction Nos. 18, 18A and 19 all come
from the Restatement (Second) of Torts. Peschke's proposed
Instruction Nos. 18 and 18A, respectively, read as follows:
An act or an omission may be negligent if the actor
realizes or should realize that it involves an
unreasonable risk of harm to another through the conduct
of the other or a third person which is intended to cause
harm, even though such conduct is criminal.
A failure to act may be negligent in situations in which
the actor fails to anticipate and guard against the
intentional, or even criminal, misconduct of others. In
general, these situations arise where the actor is under
a special relationship toward the one who suffers the
harm, which includes the duty to protect him against
intentional misconduct.
Section 302B of the Restatement (Second) of Torts is Peschke's
authority for these two instructions. In addition, Peschke cites
to § 344 of the Restatement (Second) of Torts as authority for her
proposed Instruction No. 19, which reads as follows:
The defendant is subject to liability to other persons
while they are upon defendant's property, for physical
harm caused by the intentional harmful acts of third
persons and by the failure of the defendant to exercise
reasonable care to:
(a) discover that such acts are being done or are likely
to be done, or
13
(b) give a warning adequate to enable those other
persons to avoid the harm, or otherwise to protect them
against it.
This Court has not adopted these "Restatement" instructions before,
and we need not address whether to do so here, based on our
discussion above that the District Court correctly instructed the
jury taking into account the parties' theories of the case.
Finally, we address Peschke's proposed Instruction No. 20,
which read as follows:
The defendant has the duty to exercise ordinary care to
keep his premises safe for all persons who foreseeably
might come upon them, and to warn such persons of any
hidden or lurking danger upon such premises.
In refusing this instruction, the District Court indicated the
instruction applied to a situation where a hazard existed on the
property, such as an open ditch or damaged sidewalk, and not to a
situation like the present case where any perceived risk came from
the intentional or criminal actions of individuals on the premises.
See Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d
1341; Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d
491; Corrigan v. W.P. Janney (1981), 192 Mont. 99, 626 P.2d 838.
We determine that the court did not abuse its discretion in this
regard
We have considered in their entirety the jury instructions
both given and rejected by the court in this case. We determine
that, when read together, the instructions that were given
correctly set forth the law and take into account the parties'
14
theories of the case. We therefore conclude that the District
Court properly instructed the jury.
ISSUE 3
Did the District Court err by allowing the jury to view a
videotaped reenactment of the events which occurred prior to the
shooting incident?
Carroll presented a videotaped reenactment to the jury
depicting Father Courtney arriving at the chapel, preparing the
altar for Mass, in the sacristy preparing for Mass, back at the
altar saying Mass, and then going to his apartment upstairs in
Borromeo Hall to call the police. Of course, that portion of the
tape showing Father Courtney going to his room to call the police
did not actually occur, but it was shown to indicate what would
have had to occur had he made the decision to call the police.
Peschke relies on Rule 403, M.R.Evid., to argue that admission of
the videotape was highly prejudicial and misleading for the jury.
Rulings on the admissibility of evidence are within the
discretion of the district court and will not be reversed by this
Court absent an abuse of discretion. Hansen, 835 P.2d at 753
(citing Cooper v. Rosston (1988), 232 Mont. 186, 190, 756 P.2d
1125, 1127). Here, we conclude that the District Court abused its
discretion when it allowed the videotape into evidence. The
contents of the tape allowed the jury to see only Father Courtney's
actions, without any portrayal of Aills' behavior, compellingly
showing the jury a quiet, uninterrupted, and one-sided version of
what transpired.
15
However, we have stated that in order for error to be the
basis for a new trial, it must be so significant as to materially
affect the substantial rights of the complaining party. Hansen,
835 P.2d at 753. See also Rule 61, M.R.Civ.P. Here, we determine
that even though the District Court erred in admitting the
videotape, Peschke's substantial rights were not materially
affected. Carroll offered the videotape to show that even if
Father Courtney had called the police when he ushered Aills from
the chapel, the police could not have responded to the scene in
time to prevent the shooting from occurring. Such timing evidence
goes to the issue of causation, which the jury did not reach,
having determined that Carroll had not breached its duty to warn
and was therefore not negligent. Thus, we conclude that the
court's error in this regard was harmless.
Affirmed.
We concur:
aa Justice
Justices
16
James E. Purcell
17
Justice W. William Leaphart, concurring in part and dissenting in
part.
As to issue number one, I agree that there was substantial
evidence to support the verdict under the instructions which were
given. I concur with the resolution of issue number three. I
dissent on issue number two, specifically with regard to the
Court's failure to give plaintiffs' proposed instruction no. 18 and
the giving of court's instruction no. 12 over plaintiffs'
objection.
Peschkes' primary theory of negligence in this case was that
Carroll College could be found negligent based upon the criminal
act of the third person assailant. Peschkes were entitled to a
jury instruction which set forth their theory of the case; i.e.,
negligence predicated upon the criminal act of a third person.
Peschkes' proposed instruction no. 18 read as follows:
An act or an omission may be negligent if the actor
realizes or should realize that it involves an
unreasonable risk of harm to another through the conduct
of the other or a third person which is intended to cause
harm, even though such conduct is criminal.
This instruction would have specifically advised the jury that,
under the right circumstances, a defendant can be found negligent
based upon the criminal conduct of a third person. Such an
instruction is consistent with our decision in Estate of Strever v.
Cline (Mont. 1996), 924 P.2d 666, 53 St.Rep. 576, and with § 302B
of the Restatement (Second) of Torts. However, the court refused
this instruction and did not give any instructions specifically
addressing the question of negligence arising out of the criminal
18
conduct of third persons. The majority holds that court ' s
instruction no. 12 was adequate. Court's instruction no. 12 reads
as follows:
Every person has a right to assume that every other
person will act with reasonable care. In the absence of
a reason to think otherwise, it is not negligent for a
person to fail to anticipate an injury which can only
result from another's violation of the law or failure to
use reasonable care.
The Court suggests that the "in the absence of a reason to think
otherwise" language in instruction no. 12 left the door open to
Peschkes to argue that Carroll College had a reason to think
otherwise and, therefore, was negligent. The Court's reading of
instruction no. 12 is too broad. The average juror would not,
based upon the "reason to think otherwisel' language in the
instruction, assume that liability can be premised upon the
criminal acts of third persons. To the contrary, a person not
schooled in the law would assume that one person cannot be held
civilly liable for the criminal acts of another person.
Until very recently, there has been considerable confusion in
the decisions of this Court as to whether there can be recovery for
an injury which results from an intervening criminal act of a third
person. It was only in June of 1996 when this area of the law was
clarified in Estate of Strever, 924 P.2d 666, in which we overruled
three prior decisions disallowing recovery based upon intervening
criminal acts and adopted the rationale from another contrary line
of Montana authority involving intervening criminal acts and held
that:
If, under the facts of a given case, an intervening
19
criminal act is one which the defendant might reasonably
foresee, then there is no reason why the fact finder
should not decide causation the same as with any other
intervening causation case.
Estate of Strever, 924 P.2d at 674. Given the confusion at the
judicial level, it is pure folly to assume that, in the absence of
a specific instruction, a juror would intuitively understand that
a defendant can be found negligent for failing to anticipate the
criminal act of a third person. The facts of this case clearly
required such an instruction and yet, despite plaintiffs' requests,
there were no instructions given which advised the jury that
negligence could be premised upon the criminal acts of a third
person.
In Chambers through Chambers v. Pierson (1994), 266 Mont. 436,
441, 880 P.2d 1350, 1353, there was a factual dispute as to whether
the plaintiff bicyclist was in plain view when he was hit by the
defendant's truck. The trial court failed to instruct the jury on
plaintiff's theory that he was in plain view and that defendant had
the duty to see and is presumed to have seen what was plainly
visible. In holding that this constituted reversible error, we
stated:
It is well established in Montana that a trial court
commits reversible error by refusing to instruct the jury
on an important part of a party's theory in the case.
[Citation omitted.]
While other instructions properly addressed the
elements necessary to establish negligence, none of the
instructions addressed the plain view presumption, an
essential part of plaintiff's case on which the plaintiff
was entitled to have an instruction submitted to the
jury. We conclude, therefore, that it was reversible
error in this case to refuse to give plaintiff's Proposed
Instruction No. 26 because it instructed the jury on the
applicable law for plaintiff's theory of the case.
20
Chambers, 880 P.2d at 1353-54.
In the present case, liability for the criminal acts of a
third person is the very heart of plaintiffs' case. Yet, there was
not one instruction given which references this theory of the case.
It escapes me how this esoteric theory is somehow implicit in the
very general negligence instructions which were given.
For the above reasons, the plaintiffs were denied a fair trial
and I would reverse and remand for a new trial.
Justice William E. Hunt, Sr., joins in the foregoing concurring and
dissenting opinion.
Justice
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