In the aftermath of a party held for officers at a police precinct, Malone was seated in the driver’s seat of his running, but stationary, pickup truck in the parking lot. Schaffner (defendant) was seated in the passenger seat, alongside Malone. As Schaffner moved over on the truck’s front seat to make room for other passengers getting in, the accelerator was depressed hard. The truck jerked and quickly accelerated, striking Burke (plaintiff) and pinning him between the truck and a parked car. Burke and his wife, Tammy, filed suit against Schaffner to recover damages for the serious injuries he sustained. Prior to filing the complaint, the Burkes settled with Malone. Therefore, Malone was not a named party in the Burkes’ lawsuit. Schaffner’s counsel filed a motion for summary judgment, claiming that Schaffner had denied in an affidavit touching the accelerator with her foot. The trial court denied the motion and held that there existed a genuine issue of material fact as to who hit the accelerator. The court noted that Malone similarly denied touching the accelerator in a deposition and instead placed blame on Schaffner. At trial, the defense rested its case without calling any witnesses to testify, including Schaffner. Thereafter, counsel for Burke unsuccessfully tried to reopen the case in order to call Schaffner as a rebuttal witness. The jury held for Schaffner. The Burkes appealed.