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Bengies appeals dismissal of jury verdict over lights

The fate of the Baltimore area's last drive-in theater continued to play out in the courts Monday, as the owner of Bengies Drive-In appeared before a three-judge panel in Annapolis. He asked them to reinstate an $838,000 jury award to pay for a wall shielding the property from the lights of a nearby convenience store.

The jury had found in favor of Bengies owner D. Edward Vogel in June 2012, agreeing that lights on the Royal Farms store's property were visible from the Middle River drive-in and interfered with its business — and with plans to add a second screen to the complex. The following September, however, Baltimore Circuit Judge Robert Cahill set aside the verdict, saying Vogel and his attorneys did not present sufficient evidence to back up the damage claim.

In arguments before the state Court of Special Appeals, Vogel's attorney, Erin Murphy, acknowledged that overwhelming evidence to support the claim was not presented at trial. But enough evidence was introduced to convince the jury, she said, and that should be sufficient.

"A jury heard this, a jury looked at the credibility … they made this award," Murphy said to the judges.

Attorney Alan A. Abramowitz, representing Royal Farms, argued that Cahill's order should stand. He said there was no evidence that the store's lights caused "substantial interference" to people watching movies at the drive-in. He said no evidence had been presented that a "normal, reasonable person" would be unduly distracted by the store's lights. And he argued that the Bengies, which is entering its 59th year, didn't deserve any protection from light encroachment on the property beyond what would be afforded any business.

It would not be right, he argued, to have a different set of standards for the Bengies just because it is more dependent on darkness than most other businesses, Vogel is "trying to decide what can be across the street from him," Abramowitz said.

Interviewed after the hearing, Vogel said the drive-in's profitability, and thus its future, could depend on whether the jury's original verdict is allowed to stand. "I need to be able to protect myself from this lighting," he said.

There is no scheduled date for a decision.

chris.kaltenbach@baltsun.com

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