In a negligence case, a brief reference to the lottery during opening statements and an unintentional mention of employment benefits that paid partial wages during the plaintiff’s time off work were not enough to require overturning the jury verdict for defendant.
In Campbell v. T.C. Restaurant Group, LLC, No. M2024-00362-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2025), the plaintiff filed a negligence claim against a musician and the bar at which he performed. When the musician did a birthday shoutout on stage, the plaintiff climbed onto the stage. The plaintiff stated that the musician grabbed her, spun her around, and then dropped her off the stage. The musician testified that he tried to guide the plaintiff off the stage, but she was drunk and stepped off the stage, causing her to fall. The plaintiff hit her head and was diagnosed with a concussion several days later. At trial, the plaintiff’s credibility was called into question when her testimony regarding her medical status appeared to conflict with online videos that had been posted showing her dancing.
The jury returned a verdict for the defendant, finding that the musician was not at fault for the plaintiff’s injuries. The plaintiff moved for a new trial, citing two errors: 1) a reference during opening statements that the plaintiff hoped to be “a lottery lawsuit winner,” and 2) an alleged violation of the collateral source rule. The trial court denied the motion, and the Court of Appeals affirmed the jury’s verdict.
During opening statements, counsel for the defendants stated that the plaintiff “hopes in this case to be a lottery lawsuit winner.” Plaintiff’s counsel objected, and the trial judge told defense counsel to “move on.” At the close of proof for that day, plaintiff’s counsel moved for a curative instruction. Despite the trial judge’s concern that it would call more attention to the comment, he did issue a curative instruction telling the jury that “yesterday there was a comment by defense counsel that referred to the ‘lottery.’ And that was an improper statement, and you are to disregard it.” Plaintiff’s counsel had said that such curative instruction was “fine.” The trial judge also was cautioned that opening statements are not evidence.
“Appellate courts have previously held that a brief, isolated, albeit improper statement made by attorneys during the course of trial does not constitute reversible error where the trial court gave a curative instruction.” (internal citation omitted). Here, the jury was told to disregard the comment and it was a “single stray remark.” The trial court thus did not abuse its discretion in denying the motion for new trial on this basis.
The alleged violation of the collateral source rule occurred during cross examination of the plaintiff. When questioning her about how she came up with a figure for her lost wages, defense counsel mentioned that, in her deposition, she referenced using her pay stubs. This included a reference to her not receiving her whole salary but being compensated a portion of her salary while off work.
“[T]he collateral source rule generally bars any evidence that any part of the injury has been covered by insurance.” (internal citation omitted). “Employment benefits are included among collateral benefits and cannot operate to reduce the defendant’s liability.” (internal citation omitted). The plaintiff argued that a violation of the collateral source rule warranted a mistrial, but the Court of Appeals explained that the analysis was not so simple. Instead, when the attempt to interject insurance was not “a willful attempt to prejudice the jury, a curative instruction to the jury not to consider insurance will suffice because juries are presumed to follow the court’s instructions.” (internal citation omitted).
Because a “collateral source reference can be harmless error,” the Court considered the circumstances at play here. The Court cited seven factors that lead it to determine that the collateral source evidence was harmless in this case. The relevant factors included that 1) the jury never reached the question of damages here, 2) the collateral source evidence did not directly affect liability, 3) the trial court did not consider defense counsel’s reference to the collateral source willful, 4) a curative instruction was given, 5) the references were not “persistent,” 6) the trial court disagreed with the assertion that the evidence made the plaintiff look untruthful, and 7) the trial court considered whether the evidence had impacted the verdict. Based on these factors, the Court found that the trial court did not err by denying the motion for new trial. Further, the trial court did not err by denying the motion for a new trial on the grounds of cumulative errors.
The jury verdict for the defendant was affirmed.
This opinion was released one month after oral argument.