Harris v. Carbonneau

Harris v. Charbonneau  (94-592); 165 Vt 433; 685 A.2d 296

[Opinion Filed 30-Aug-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-592


Bonnie Harris and                                 Supreme Court
Ferris K. O'Connell
                                                  On Appeal from
    v.                                            Orleans Superior Court

Winston Carbonneau, James G.                      April Term, 1996
Murphy and State of Vermont


James L. Morse, J., Specially Assigned

       Michael Palmer of Palmer Legal Services, Middlebury, for
  plaintiffs-appellants

       Robert B. Chimileski, Troy, for defendants-appellees Carbonneau and
  Murphy

       Jeffrey L. Amestoy, Attorney General, and Robert W. Gagnon, Senior
  Assistant Attorney General, Montpelier, for defendant-appellee State of
  Vermont


PRESENT:  Allen, C.J., Gibson, Dooley, and Johnson, JJ.



       GIBSON, J.   Plaintiffs Bonnie Harris and Ferris O'Connell appeal from
  a verdict in defendants' favor following a jury trial on plaintiffs' claims
  of civil trespass, intentional infliction of emotional distress, and
  negligence.  Plaintiffs contend that the superior court erred in denying
  their motions for directed verdict and judgment notwithstanding the
  verdict,(FN1) and that the superior court should have provided a separate
  jury instruction on invasion of privacy.  We affirm.

       Viewed in the light most favorable to the nonmoving party and
  excluding the effect of modifying evidence, see Silva v. Stevens, 156 Vt.
  94, 101, 589 A.2d 852, 856 (1991), the record provides the following facts. 
  On the evening of December 29, 1988, defendant

 

  Lieutenant Winston Carbonneau, an Orleans County deputy sheriff, went to
  Harris's house in Newport to serve a summons and complaint from superior
  court on O'Connell.  O'Connell was asleep on the couch when Carbonneau
  knocked on the storm door and announced himself.  At the time of the visit,
  Harris and O'Connell were both totally disabled.  Harris, who was in a
  wheelchair, came to the door, and without opening it, asked who it was. 
  Carbonneau identified himself, and Harris opened the inside door and tried
  unsuccessfully to open the storm door. Carbonneau assisted her in opening
  the storm door, at which point Harris backed up her wheelchair and
  Carbonneau stepped inside.

       Once inside the house, Carbonneau said he had some papers for Ferris
  O'Connell and asked Harris if she were Ferris O'Connell.  When Harris asked
  what kind of papers they were, Carbonneau repeated that they were for
  Ferris O'Connell, and asked if the man he saw seated on the couch was
  Ferris O'Connell.  When Harris again asked what kind of papers they were
  and whether she could take them, Carbonneau asked the man whether he was
  Ferris O'Connell. The man nodded and Carbonneau asked O'Connell if he
  wanted the papers brought over to him. Harris backed up her wheelchair so
  Carbonneau could walk past her to the couch, and O'Connell stood up. 
  Carbonneau said, "Ferris O'Connell, these papers are a summons and
  complaint." O'Connell thereupon became angry, swore at Carbonneau, and
  ordered him to get out of the house.  Carbonneau attempted to hand the
  papers to O'Connell, who would not take them. Carbonneau then dropped the
  papers on the floor and told O'Connell that he had been served. As
  Carbonneau was leaving, O'Connell hurled a number of objects after him,
  including several pillows, his temporary cast and one of his aluminum
  crutches.

       At trial, plaintiffs' testimony contradicted Carbonneau.  Harris
  testified that Carbonneau never announced who he was, but said merely,
  "Small Claims Court" when he knocked. According to Harris, when she opened
  the inside door, Carbonneau opened the outside door and barged into the
  house uninvited.  Harris testified that she tried to explain O'Connell's
  disabled condition to Carbonneau, but Carbonneau ignored her requests to
  serve the papers on her or on

 

  O'Connell's lawyer, or to call O'Connell's doctor.  Rather, Carbonneau
  insisted on confronting O'Connell with the papers.  O'Connell testified
  that he became angry when Carbonneau announced that he had a writ of
  attachment from superior court because O'Connell had thought from
  Carbonneau's initial announcement, that the papers were from small claims
  court. Plaintiffs insisted that O'Connell never threw a crutch.  They
  testified that, as Carbonneau was opening the door to leave, one of
  Harris's cats started for the door.  When Harris bent over to grab the cat,
  she was struck in the side of the head by the door, which cut her cheek and
  severely damaged her mouth and bridgework.

       Plaintiffs sued Carbonneau for trespass, intentional infliction of
  emotional distress, assault and battery,(FN2) and negligence.  In addition,
  plaintiffs alleged that, "[b]y entering plaintiffs' residence without
  permission and against plaintiffs' wishes, defendant Carbonneau wrongfully
  invaded plaintiffs' privacy."

       At the close of the evidence, plaintiffs moved for a directed verdict
  on the issue of trespass, claiming there was no evidence that Carbonneau
  had an express or implied invitation to enter the home.  The court denied
  the motion.

       Plaintiffs requested a jury instruction for invasion of privacy that
  read, in relevant part, "Anyone who intrudes into the home of another
  without permission has invaded the privacy of the latter person and is
  liable to that person for any damage proximately caused by that invasion of
  privacy."  The judge instructed the jury on trespass, intentional
  infliction of emotional distress, and negligence, but not on invasion of
  privacy.  The instruction on trespass stated, "The Plaintiffs must prove by
  a preponderance of the evidence . . . a lack of express or implied
  permission to either enter the home or to remain there if the initial entry
  was welcomed or invited."

       After the jury returned a verdict for defendants, plaintiffs' motion
  for judgment

 

  notwithstanding the verdict or for a new trial was denied.

                                I.

       Plaintiffs first contend that they were entitled to a directed
  verdict, or to judgment notwithstanding the verdict, on their claim of
  trespass, because the evidence demonstrated that Carbonneau entered the
  house on his own initiative without invitation.

       A motion for judgment notwithstanding the verdict raises substantially
  the same legal questions as a motion for directed verdict and is treated in
  like manner.  Center v. Mad River Corp., 151 Vt. 408, 413, 561 A.2d 90, 93
  (1989).  If there is any evidence reasonably and fairly supporting the
  nonmoving party's claim, the motion should be denied and the case should go
  to the jury.  Lussier v. North Troy Engineering Co., 149 Vt. 486, 490, 544 A.2d 1173, 1176 (1988).  The weight of the evidence and the credibility of
  the witnesses are questions for the jury, and on appeal, all conflicts are
  to be resolved against the moving party.  Jewell v. Dyer, 154 Vt. 486, 489,
  578 A.2d 125, 127 (1990).

       A person who intentionally enters or remains upon land in the
  possession of another without a privilege to do so is subject to liability
  for trespass.  Restatement (Second) of Torts § 158 (1965).  There is no
  recovery for trespass, however, where the possessor has consented to the
  conduct.  See id. cmt. e.  A process server may peaceably enter a dwelling
  by walking through an open door without invitation or with the consent of
  the possessor.  See id. § 208 cmt. j.  But,

       [e]ven when the person concerned does not in fact agree to the
       conduct of the other, his words or acts or even his inaction may
       manifest a consent that will justify the other in acting in reliance
       upon them.  This is true when the words or acts or silence and
       inaction, would be understood by a reasonable person as intended
       to indicate consent and they are in fact so understood by the other.
       This conduct is not merely evidence that consent in fact exists, to
       be weighed against a denial.  It is a manifestation of apparent
       consent, which justifies the other in acting on the assumption that
       consent is given and is as effective to prevent liability in tort as if
       there were consent in fact.

   Id. § 892 cmt. c (1979).

 

       In this matter, the evidence supports Carbonneau's contention that
  Harris gave him implied consent to enter the house.  Although Harris denied
  giving an express or implied invitation to Carbonneau to enter, Carbonneau
  testified that Harris opened the inside door, attempted to open the outside
  door, and then backed up her wheelchair as he came in.  In addition, Harris
  testified that she did not forbid Carbonneau to enter or ask him to leave.
  Because there is evidence to support Carbonneau's claim, the question of
  whether Carbonneau had implied consent to enter the house was properly left
  to the jury.

       Plaintiffs contend, however, that Carbonneau committed a separate
  trespass by failing to serve the papers on Harris at the door.  Plaintiffs
  point to V.R.C.P. 4(d)(1), which provides:

     Personal service within the state shall be made . . . [u]pon an
     individual by delivering a copy of the summons and of the
     complaint to the individual personally or by leaving copies thereof
     at the individual's dwelling house or usual place of abode with
     some person of suitable age and discretion then residing therein
     . . . .

  We agree that the rule allowed Carbonneau to serve Harris without entering
  the house.  But before doing so, Carbonneau would first have had to
  determine whether Ferris O'Connell lived there.  Whether Carbonneau's
  actions in attempting to ascertain O'Connell's residence constituted a
  trespass is a question of fact for the jury.  Page v. Town of Newbury, 113
  Vt. 336, 340, 34 A.2d 218, 220 (1943).

       The case relied on by plaintiffs, Moore v. Duke, 84 Vt. 401, 80 A. 194
  (1911), is inapposite.  In that case, a process server was held to be a
  trespasser because he failed to enter the writ in the court to which it was
  returnable.  The failure "vitiated all his previous acts, rendered the
  purpose of his entry unjustifiable, and made him a trespasser from the
  beginning." Id. at 405, 80 A.  at 196.  In the present matter, there is no
  allegation or evidence that Carbonneau failed to file a return of service,
  and the record does not justify a ruling as a matter of law that Carbonneau
  was a trespasser.

 

                                II.

       Plaintiffs also argue that they were entitled to a separate jury
  instruction on their claim of invasion of privacy.

       A party who claims error in the jury charge has the burden of
  establishing both that the charge was wrong and that prejudice resulted
  from that error.  Mobbs v. Central Vermont Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).  In reviewing jury instructions, we look at them in their
  entirety.  Winey v. William E. Dailey, Inc., 161 Vt. 129, 143, 636 A.2d 744, 753 (1993).  If the charge as a whole "`breathes the true spirit and
  doctrine of the law, and there is no fair ground to say that the jury has
  been misled by it, it ought to stand.'"  Choiniere v. Sulikowski, 126 Vt.
  274, 277, 229 A.2d 305, 307 (1967) (quoting In re Moxley's Will, 103 Vt.
  100, 114, 152 A. 713, 718 (1930)).

       The court has the duty to charge upon all theories of law raised by
  the pleadings and evidence.  Arnold v. Cantini, 154 Vt. 142, 145, 573 A.2d 1193, 1195 (1990).  A pleading must give fair notice of the claim and the
  grounds upon which it rests.  V.R.C.P. 8(a); Levinsky v. Diamond, 140 Vt.
  595, 600, 442 A.2d 1277, 1280 (1982).  The evidence produced at trial must
  prove all the elements of the prima facie case.  Seewaldt v. Mount Snow,
  Ltd., 150 Vt. 238, 240, 552 A.2d 1201, 1202 (1988).

       Plaintiffs' pleadings did not support a theory of invasion of privacy. 
  Invasion of privacy is a substantial, intentional intrusion upon the
  solitude or seclusion of another, or upon his private affairs or concerns,
  which would be highly offensive to a reasonable person.  Hodgdon v. Mount
  Mansfield Co., 160 Vt. 150, 162, 624 A.2d 1122, 1129 (1992); Restatement
  (Second) of Torts §§ 652A, 652B (1977).  The complaint alleged only that
  Carbonneau "wrongfully invaded plaintiffs' privacy" by entering the house
  "without permission and against plaintiffs' wishes."  The complaint failed
  to state that Carbonneau's conduct was intentional, substantial, or highly
  offensive to a reasonable person.  Although the rule does not require that
  a pleading contain a specific and detailed statement of the facts
  supporting a cause of action, Mintz v.

 

  Matalon, 148 Vt. 442, 444, 535 A.2d 783, 785 (1987), the complaint must
  nonetheless provide sufficient clarity and certainty to enable a defendant
  to respond.  Central Vt. Pub. Serv. Corp. v. Town of Springfield, 135 Vt.
  436, 440, 379 A.2d 677, 680 (1977).  Plaintiffs' cause of action, although
  denominated as sounding in invasion of privacy, alleged no more than was
  alleged in the counts for trespass and negligence.

       The jury instruction requested by plaintiffs was similarly defective
  in that the elements of invasion of privacy were not specified.  A trial
  judge is not required to correct proposed charges that are mistaken
  statements of the law.  Schneider v. Lindemuth-Cline Agency, 620 A.2d 505,
  508-09 (Pa. Super. Ct. 1993).  We see no error in the court's failure to
  instruct the jury as requested.

       In light of our disposition, we need not address plaintiffs' claim of
  respondeat superior with respect to defendants Murphy and the State of
  Vermont, or the immunity defense raised by the State of Vermont.

       Affirmed.

                              FOR THE COURT:



                              _________________________________________
                              Associate Justice


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                                  Footnotes


FN1.  Plaintiff's motion for judgment notwithstanding the verdict was
  filed prior to the amendment of V.R.C.P. 50, which now refers to a "motion
  for judgment as a matter of law." See V.R.C.P. 50 (amended 1995).

FN2.  Plaintiffs voluntarily dismissed their claim of assault and
  battery before trial.