Johnson v. United Parcel Service

Johnson v. United Parcel Service (2005-047); 180 Vt. 513; 904 A.2d 1089

2006 VT 57

[Filed 08-Jun-2006]

                                 ENTRY ORDER

                                 2006 VT 57

                      SUPREME COURT DOCKET NO. 2005-047

                             FEBRUARY TERM, 2006

  Barbara Johnson                      }         APPEALED FROM:
                                       }
                                       }
       v.                              }         Chittenden Superior Court
                                       }  
  United Parcel Service and            }
  Robert Clark                         }         DOCKET NO. S0124-02 CnC
                                       }

                                                 Trial Judge: Richard W. Norton

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant United Parcel Service appeals from the superior
  court's denial of its motion for correction of the jury verdict or for a
  new trial, filed pursuant to Vermont Rule of Civil Procedure 59.  Defendant
  claims the court was compelled by Rule 49(b) to recognize an inconsistency
  between the jury's answers to interrogatories and the general verdict.  We
  find no patent inconsistency in the verdict, and conclude that the court
  did not abuse its direction in denying defendant's motion.  We affirm.

       ¶  2.  The underlying case was a personal injury action.  The jury
  found that defendant was liable, but that plaintiff, Barbara Johnson, was
  forty percent comparatively negligent.  The verdict form set forth specific
  questions as to each party's negligence.  The form then asked the jury to
  calculate past and future damages, with separate lines to specify each
  element of damage.  The final blank on the form was marked "Total," and
  required the jury to add the specific amounts of damages.  Neither party
  objected to the final version of the form.

       ¶  3.  The court instructed the jury that two reductions to damages
  should be applied, although not reflected on the verdict form.  The court
  told the jurors that it was their obligation to reduce any award for future
  damages to its present worth.  Plaintiff's counsel had addressed the issue
  of net present value in closing and suggested various ways in which the
  future medical damages could be reduced, but the court instructed the
  jurors that determining an appropriate discount rate was their decision. 
  The court also instructed the jury, "If you find Plaintiff Johnson to have
  been contributorily negligent, and that such negligence did not exceed 50
  percent, and you find damages to have been proved, then you will reduce any
  damage award by the percentage of negligence you have attributed to
  Plaintiff Johnson."  Defendant did not object to the charge with respect to
  the instructions to reduce the damages if awarded.

       ¶  4.  The jury found total damages in the amount of $156,391, which
  was the sum of $8,600 for lost wages, $107,791 for past and future medical
  expenses, $20,000 for pain and suffering, and $20,000 for physical
  impairment.  Neither party wished to poll the jury, and it was discharged. 
  In entering judgment on the verdict, however, the court reduced the total
  damages by the degree of comparative negligence assessed to plaintiff,
  forty percent, and entered judgment in the amount of $93,834.60 plus costs.

       ¶  5.  Plaintiff filed a timely motion to amend the judgment,
  arguing that the court had instructed the jury to reduce the damages to
  account for any comparative negligence, and that the jury should be
  presumed to have followed the instruction.  Defendant opposed the motion,
  arguing that "[t]here appears to be confusion" between the verdict form and
  the court's instructions.  The court offered to recall the jury foreperson
  and ask her whether the jury had already reduced the damages by forty
  percent, but both parties objected to this procedure.  The court granted
  plaintiff's motion and entered an amended judgment in the original amount
  of $156,391 plus costs.
    
       ¶  6.  Defendant then filed its Rule 59 motion to alter or vacate
  the judgment, claiming that the answers to the interrogatories were
  inconsistent with the final verdict under Rule 49(b).  The court denied the
  motion, stating that it instructed the jury to reduce plaintiff's damages
  by the degree of her comparative negligence, that it presumed the jury
  followed this instruction, and that defendant had waived the polling of the
  jury as to whether it followed the court's instruction.

       ¶  7.  Defendant concedes in its reply brief that it can no longer
  challenge the verdict form or the jury instructions, as those issues have
  been waived.  See V.R.C.P. 51(b) ("No party may assign as error the giving
  or the failure to give an instruction unless that party objects thereto
  before the jury retires to consider its verdict, stating distinctly the
  matter objected to and the grounds of the objection.").  It claims instead
  that the jury's answers to interrogatories on the verdict form are patently
  inconsistent with a verdict of $156,391 because that amount represented
  100% of the total damages claimed, and thus, the jury clearly did not
  intend to reduce the verdict by forty percent.  To support its assertion
  that the jury's intent was clear, defendant presents a scenario detailing
  the choices the jury must have made, based in part on plaintiff's counsel's
  suggestions to the jury during his closing argument regarding potential
  discount rates for reducing future damages to net present value.  Defendant
  also argues that because one of the specified elements, lost wages, was
  awarded in the amount of $8,580, which was just under plaintiff's claimed
  lost wages of $8,600, the award must not have been reduced, and the jury
  must not have followed the court's instructions on that point. 

       ¶  8.  Defendant relies on Rule 49(b), which permits the trial court
  to correct a verdict or order a new trial if the answers to interrogatories
  are consistent with each other, but one or more of them is inconsistent
  with the general verdict.  V.R.C.P. 49(b).  It cites our decision in Prouty
  v. Manchester Motors, Inc., 143 Vt. 449, 455, 470 A.2d 1152, 1155 (1983),
  in which we reversed judgment on a jury verdict because the answers to the
  interrogatories on both liability and damages were inconsistent with the
  total verdict, and the errors were obvious on the face of the verdict and
  in light of the instructions.
        
       ¶  9.  Defendant's argument under Rule 49(b) fails because there is
  no patent inconsistency in this verdict.  See id. at 456, 470 A.2d  at 1155
  (stating that the case "clearly falls within . . . V.R.C.P. 49(b)" because
  the jury's answers to the written interrogatories "are patently
  inconsistent with each other").  In fact, each of the jury's answers was
  consistent with the other answers, and with the general verdict.  The only
  question is whether the verdict form was necessarily inconsistent with the
  court's instructions, or simply ambiguous.  To identify an inherent
  inconsistency between the verdict and the instructions, we must conclude
  that the jury did not reduce plaintiff's total damages by the degree of her
  comparative negligence.  This requires far too much speculation as to the
  jury's reasoning and calculations.  We would first have to speculate about
  the discount rate the jury applied to plaintiff's future damages.  We would
  also need to ignore the fact that two elements of plaintiff's damages-her
  pain and suffering and her physical impairment-do not lend themselves to
  precise calculation, and thus, do not support any inference regarding
  whether the jury reduced them by forty percent.  See Turcotte v. Estate of
  LaRose, 153 Vt. 196, 200 n.2, 569 A.2d 1086, 1088 n.2 (1989) (stating that
  "certain damage elements of personal injury actions (for example, pain and
  suffering and permanent impairment) . . . are inchoate and rarely
  ascertainable at the time of injury.").  In addition, we would need to
  accept defendant's assertion that the jury's intent not to reduce the
  damages or follow instructions is clear because it awarded a single element
  of damages, lost wages, at almost, but not quite, 100% of plaintiff's
  claimed amount.  We would also need to guess at the exact amount of the
  jury's award for future medical damages.

       ¶  10.  Such speculation would not be appropriate in the context of
  this appeal.  The decision whether to grant a motion for a new trial is
  within the trial court's discretion.  Hardy v. Berisha, 144 Vt. 130, 133,
  474 A.2d 93, 95 (1984).  "[W]e are bound to uphold the decision where the
  trial court properly exercised its discretion in the matter, and where no
  abuse of that discretion has been shown."  Jewell v. Dyer, 154 Vt. 486,
  488, 578 A.2d. 125, 127 (1990).  The trial court must weigh the evidence in
  the light most favorable to the verdict.  Id.  In reviewing the trial
  court's decision, "we will view the evidence in the light most favorable to
  the verdict and will accord the trial court 'all possible presumptive
  support.' "  Lent v. Huntoon, 143 Vt. 539, 552, 470 A.2d 1162, 1171 (1983)
  (quoting Gregory v. Vermont Traveler, Inc., 140 Vt. 119, 121, 435 A.2d 955,
  956 (1981)).  Accordingly, we will sustain a jury verdict when it can be
  justified on any reasonable view of the evidence.  Clement v. Woodstock
  Resort Corp., 165 Vt. 627, 629, 687 A.2d 886, 888 (1996) (mem.).  In doing
  so, we must presume that the jury has followed the trial court's
  instructions.  Brown v. Roadway Express, Inc., 169 Vt. 633, 635, 740 A.2d 352, 355 (1999) (mem.).  
        
       ¶  11.  We could reasonably posit that the jury reached a total
  figure of damages, adjusted it to present value, reduced it by the degree
  of comparative negligence, and then filled in the blanks on the verdict
  form to reach the total.  Other explanations might appear equally plausible
  if we were willing to speculate further, but none of them would be
  consistent with our standard for reviewing a denial of a motion for a new
  trial.  Under these circumstances, we cannot agree with defendant that any
  inconsistency prevented the court from entering judgment upon the verdict
  pursuant to Rule 49(b). If there was a problem in this case, it was with
  the verdict form, not the verdict.  Defendant failed to object to either
  the verdict form or the jury instructions, failed to poll the jury, and
  resisted the court's efforts to recall the jury foreperson and ask whether
  the jury had actually reduced plaintiff's damages by the degree of her
  comparative negligence.  The verdict can be justified on a reasonable view
  of the evidence, and the superior court's decision to enter judgment upon
  it was not an abuse of discretion.

       Affirmed.      


                                       BY THE COURT:



                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
     
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice