Barber v. LaFromboise
Annotate this Case
Barber v. LaFromboise (2005-006); 180 Vt. 150; 908 A.2d 436
2006 VT 77
[Filed 04-Aug-2006]
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.
2006 VT 77
No. 2005-006
Edwin J. Barber Supreme Court
On Appeal from
v. Orleans Superior Court
Lucy LaFromboise February Term, 2006
Alan W. Cook, J.
Deborah T. Bucknam and Jennifer Bucknam Black of Deborah Bucknam
Associates, St. Johnsbury, for Plaintiff-Appellant.
Robin Ober Cooley of Pierson Wadhams Quinn Yates & Coffrin, Burlington, for
Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. REIBER, C.J. Plaintiff in this personal injury case appeals
from a judgment, based on a jury verdict, in favor of defendant. Plaintiff
asserts, among other claims, that the trial court committed prejudicial
error in refusing to instruct that defendant had the burden to prove the
essential elements of her affirmative defense of comparative negligence.
We agree, and therefore reverse the judgment and remand for further
proceedings.
¶ 2. The record evidence may be summarized as follows. In the
early evening hours of November 5, 1999, plaintiff Edward J. Barber was
proceeding south on Route 105 in the Town of Derby when he struck a vehicle
driven by defendant Lucy LaFromboise which was attempting to turn left onto
Route 105 from Route 5. Plaintiff testified that he approached the
intersection at a speed of about thirty to thirty-five miles per hour (the
speed limit was thirty-five miles per hour), but slowed to about fifteen
miles per hour because the vehicle immediately in front of him was also
slowing and signaling to turn right. Plaintiff recalled that he closed to
within ten feet of the vehicle as it turned right, and then proceeded
straight ahead when he saw defendant's vehicle turning left directly across
his path. Plaintiff braked but could not avoid colliding with defendant.
Plaintiff testified that he had no intention of turning right, and denied
having his right-turn signal activated.
¶ 3. Defendant testified that she was traveling east on Route 5
when she came to a stop at a stop sign where the road intersects with Route
105. She recalled activating her left-turn signal while she observed the
traffic traveling south on Route 105. Defendant stated that she saw
several cars, including plaintiff's, with their right-turn signals on,
assumed that plaintiff intended to turn right, and therefore proceeded into
the intersection to turn left, where she was immediately struck by
plaintiff's vehicle.
¶ 4. Defendant further recalled that, after the accident, plaintiff
approached her vehicle in an agitated state and began to swear at her.
Defendant stated that she smelled alcohol on plaintiff's breath and decided
to stay in her car. A police officer responding to the scene recalled
speaking with both drivers. The officer's accident report indicated that
defendant claimed to have seen plaintiff signaling a right turn, while
plaintiff denied that his signal was on. While conversing with plaintiff,
the officer smelled alcohol and noted that plaintiff's eyes were bloodshot,
his stance was unsteady, he avoided the officer, and he refused to answer
questions about the times of his first and last drinks. Plaintiff
acknowledged having had two drinks earlier in the day, which he described
as scotch and sodas. The officer arrested plaintiff and processed him for
driving under the influence. (FN1)
¶ 5. Although the officer's report contained no indication of any
injuries to the parties, plaintiff later claimed that the impact from the
collision had exacerbated a gastrointestinal condition and hiatal hernia
that had been surgically repaired two years earlier. Plaintiff filed a
personal injury action against defendant in September 2002. Defendant
raised the affirmative defense of comparative negligence. At the
conclusion of a three-day trial in October 2004, the trial court denied
plaintiff's motion for judgment as a matter of law on the issue of
defendant's negligence and plaintiff's comparative negligence. The jury
then returned a special verdict, finding that both parties had been
negligent, but attributed seventy-two percent of the fault to plaintiff and
twenty-eight percent to defendant, so that plaintiff recovered nothing.
The court denied plaintiff's motion for judgment notwithstanding the
verdict or new trial. This appeal followed.
I.
¶ 6. On appeal, plaintiff asserts that the trial court erred in
refusing to direct a verdict in his favor on comparative negligence, and in
failing to instruct on the essential principles of that doctrine. As
explained more fully below, we conclude that the court did not err in
submitting the issue of plaintiff's negligence to the jury, but did err in
refusing to instruct as to defendant's burden of proof.
¶ 7. Under our comparative negligence statute, a plaintiff in a
negligence action may recover damages if his or her own causal negligence
is not greater than that of the defendant. 12 V.S.A. § 1036. Allocation
of the respective percentages of causal negligence attributable to the
plaintiff and defendant is generally a fact question for the jury, and
plaintiff's recovery is automatically reduced according to the proportional
amount of his or her causal negligence. Id.; Gilman v. Towmotor Corp.,
160 Vt. 116, 121, 621 A.2d 1260, 1262-63 (1993); Shea v. Peter Glenn Shops,
Inc., 132 Vt. 317, 319, 318 A.2d 177, 178 (1974). In determining whether
to grant a motion for judgment as a matter of law or, alternatively, to
submit an issue such as comparative negligence to the jury, the court must
view the evidence in the light most favorable to the nonmoving party,
excluding the effects of any modifying evidence. Schaad v. Bell Atl. Nynex
Mobile, Inc., 173 Vt. 629, 631, 800 A.2d 455, 458 (2002) (mem.).
¶ 8. As noted, defendant's comparative negligence claim rested
principally on evidence that plaintiff exhibited some signs consistent with
having been driving while under the influence of alcohol, and testimony
that plaintiff's right-turn signal was activated and that he slowed as he
entered the intersection. Defendant asserted that these actions reasonably
conveyed plaintiff's intention to turn right, and that by proceeding
through the intersection instead he negligently contributed to the
accident. Plaintiff contends, however, that because he generally had the
right of way under the applicable rules of the road, defendant was barred
as a matter of law from asserting that his actions contributed to the
accident.
¶ 9. The trial court properly rejected the contention. Substantial
case law supports the principle that a motorist may be found negligent or
contributorily negligent for "proceeding straight after signaling a turn"
notwithstanding a general right-of-way to proceed. Jackson v. Warrum, 535 N.E.2d 1207, 1211 (Ind. Ct. App. 1989) (rejecting plaintiff's claim that
defendant was barred as a matter of law from asserting plaintiff's
contributory negligence for accident resulting, in part, from plaintiff's
proceeding straight after signaling a turn); accord Pelayo v. Bell, 477 P.2d 537, 539 (Ariz. Ct. App. 1971) (rejecting plaintiff's claim that trial
court erred in failing to direct a verdict in his favor on defendant's
contributory negligence claim where defendant claimed that plaintiff's
right-turn blinker mistakenly led defendant to believe it was safe to
turn); Summers v. Weyer, 226 N.E.2d 904, 906 (Ind. Ct. App. 1967)
(observing "there can be little doubt that proceeding straight ahead after
signaling a turn might constitute actionable negligence"); Dotson v.
Cantrell, 458 S.W.2d 10, 12 (Ky. Ct. App. 1970) (rejecting claim that court
erred in allowing jury to determine whether plaintiff, whose turn signal
and slowing speed induced defendant to enter intersection, was proximate
cause of the accident); Trainer v. Gibson, 360 So. 2d 1226, 1228 (Miss.
1978) (holding jury was entitled to consider defendant's contributory
negligence claim based on her assertion that she was mistakenly induced to
turn into intersection where plaintiff had turn signal on but instead
proceeded through the intersection); Harris v. Moyer, 680 N.Y.S.2d 351, 352
(N.Y. App. Div. 1998) (holding that defendant's violation of traffic rule
for failure to yield right of way did not preclude her contributory
negligence claim based on her testimony that plaintiff's turn signal
mistakenly induced her to turn into intersection); Wardell v. Jerman, 423 P.2d 485, 486 (Utah 1967) (rejecting plaintiff's claim that defendant was
negligent as a matter of law, and could not assert contributory negligence,
because plaintiff was traveling straight and had the right of way, where
evidence showed that "plaintiff's left-turn signal was turned on so early
that it lead the defendant to believe that plaintiff was going to turn");
but see Timmins v. Russomano, 236 N.E.2d 665, 667 (Ohio 1968) (right of way
of plaintiff traveling on highway was absolute and could not be rebutted by
defendant's mistaken reliance on plaintiff's turn signal); see generally
M.Yaworsky, Annotation, Negligence or Contributory Negligence of Motorist
in Failing to Proceed in Accordance With Turn Signal Given, 84 A.L.R.4th
124, 153-55 (1991). (FN2)
¶ 10. Consistent with these decisions, we conclude that the trial
court properly rejected plaintiff's motion for judgment as a matter of law.
As the court in Warrum cogently explained: "The issue of the motorist's
contributory negligence depends on all the facts and circumstances of the
case including but not limited to the motorist's use of a turn signal, the
slowing of speed, the motorist's lane of travel, and all other facts that
bear on the motorist's apparent intention to turn." 535 N.E.2d at 1211;
accord Dotson 458 S.W.2d at 12 (jury was entitled to decide "whether
plaintiff by her conduct under the total circumstances-i.e., activating the
turn signal, slowing her speed, and traveling in the right-turn lane-failed
to exercise ordinary care and whether such failure on her part was a
proximate cause of the collision"); Wardell, 423 P.2d at 486 ("[R]ight of
way does not exist thus in isolation and is not absolute. Other factors
must be considered."). The evidence here, including defendant's testimony
that she observed plaintiff's right-turn signal and plaintiff's
acknowledgment that he slowed as he entered the intersection, was
sufficient to support the comparative negligence defense.
¶ 11. Plaintiff next contends the court improperly refused to
instruct on the essential principles of comparative negligence,
specifically as to defendant's burden to establish by a preponderance of
the evidence that plaintiff was also negligent and that his negligence was
a proximate cause of the accident. As noted, comparative negligence
comprised the heart of defendant's theory at trial, based on her claim that
she was induced by plaintiff's actions to believe that it was safe and
reasonable to enter the intersection and turn left. Although plaintiff
disputed the claim, and opposed the giving of a comparative negligence
instruction, he requested that any such instruction require defendant to
prove that plaintiff's negligence was a proximate cause of the accident.
The court indicated that the request was "adequately dealt with in the
comparative negligence instruction," apparently referring to the court's
own set of instructions.
¶ 12. In its subsequent instructions to the jury, the court
explained that there was a separate burden of proof in civil, as distinct
from criminal cases, and that "[i]n this civil case the burden of proof is
on the plaintiff, Mr. Barber, to make out and establish every essential
element of his case" by a preponderance of the evidence. The court went
on to repeat at least four additional times that plaintiff had the burden
of proving that defendant was negligent, that her negligence was a
proximate cause of the accident, and that the accident was the cause of
plaintiff's alleged injuries. The court then briefly discussed the concept
of comparative negligence, observing that the Legislature had determined
that "the jury should be permitted to compare the relative negligence of
the parties." The court explained as follows: "You have to consider
whether or not the plaintiff was negligent in a way which proximately
caused his own injuries. . . . [I]f you find the plaintiff was also guilty
of negligence, then you must determine whether or not the plaintiff's
negligence was greater than that of the defendant's. If it was, then you
must find for the defendant and award the plaintiff nothing. . . . If the
plaintiff's negligence is fifty percent or less, then you will award
damages to the plaintiff."
¶ 13. At the conclusion of the instructions, plaintiff's counsel
objected that the court had failed to instruct, with regard to comparative
negligence, that it was defendant's burden to prove plaintiff's negligence.
The court declined to alter or revisit the charge. Thereafter, as noted,
the jury returned a special verdict, finding that both parties had been
negligent, but allocating seventy-two percent of the negligence to
plaintiff, so that he recovered nothing. Plaintiff restated his objection
to the comparative negligence instruction in his postjudgment motion for
judgment notwithstanding the verdict or new trial, which the court denied.
¶ 14. The standards on review of alleged instructional error are
well settled. It is the trial court's duty to instruct on all issues
essential to the case. Malaney v. Hannaford Bros. Co., 2004 VT 76, ¶ 21,
177 Vt. 123, 861 A.2d 1069 (quotations omitted). A party alleging that the
court failed to give an essential instruction must establish that the
omission was both clearly erroneous and prejudicial. Knapp v. State, 168
Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.). The propriety of an
instruction is to be determined from the charge as a whole with a view to
its general content, not merely from isolated segments. Id. While the
trial court enjoys broad discretion over the extent to which it elaborates
on the points charged, still "the charge as a whole must impart the spirit
of the law so that the jury is not misled." Malaney, 2004 VT 76, ¶ 21.
¶ 15. Assessed in light of these standards, we are constrained to
conclude that the court's refusal to instruct on defendant's burden of
proof was both clearly erroneous and prejudicial. A fundamental tenet of
the comparative negligence doctrine in this and other states is that the
defendant, in asserting such a defense, bears the burden of proving by a
preponderance of the evidence that the plaintiff was negligent and that
such negligence was a proximate cause of the plaintiff's injuries. See
Frost v. Tisbert, 135 Vt. 345, 347, 376 A.2d 748, 749-50 (1977) (under
comparative negligence statute, 12 V.S.A. § 1036, burden is on defendant to
show negligence on the part of the plaintiff); accord Am. Furniture
Galleries, Inc. v. McWane, Inc., 477 So. 2d 369, 372 (Ala. 1985) ("Upon
raising the affirmative defense of comparative negligence, defendant has
the burden of proving that (1) plaintiff failed to use due care for his own
. . . safety; and (2) that such a failure was a proximate cause of the
injury."); Hano v. La. Dep't of Transp. & Dev., 519 So. 2d 796, 798 (La.
Ct. App. 1988) ("A defendant who relies on contributory negligence as a
defense bears the burden of proving plaintiff's negligence and that such
negligence was a contributory cause of the accident."); Moodie v. Santoni,
441 A.2d 323, 325 (Md. 1982) ("The burden of proving contributory
negligence is on the defendant."); Hanlon v. Sorenson, 433 A.2d 60, 63 (Pa.
Super. Ct. 1981) ("A defendant must assume the burden of establishing a
plaintiff's contributory negligence."); see generally W. Keeton, Prosser
and Keeton on Torts § 65, at 451 (5th ed. 1984) ("All courts now hold that
the burden of pleading and proof of the contributory negligence of the
plaintiff is on the defendant.").
¶ 16. Few issues in a lawsuit of any nature are more essential than
burden of proof. See Knapp, 168 Vt. at 592, 729 A.2d at 721-22 (holding
that trial court's "total failure to instruct on the State's burden of
proof" in employment discrimination case was prejudicial and required
reversal); Stoddard Bros. v. Howard, 101 Vt. 1, 5, 139 A. 776, 777 (1928)
(failing to instruct on burden of proof required reversal, despite
defendant's failure to so request, since "there can be no doubt that the
question as to who had the burden of proof on the only issue in fact raised
was an essential part of the case"). Thus, where the issue of comparative
negligence is raised and the evidence supports it, the court must instruct
that just as the plaintiff bore the burden of proof in showing that the
defendant was negligent, the defendant bears the burden of proving by a
preponderance of the evidence that the plaintiff was also negligent, and
that such negligence, if any, was a proximate cause of the injuries
alleged. See generally Ross v. Paddy, 532 S.E.2d 612, 616-17 (S.C.Ct. App.
2000) ("[S]tates finding comparative negligence to be an affirmative
defense require the judge to charge the jury that the burden shifts to the
defendant to prove the plaintiff's comparative negligence."); see also J.
Dinse et al., Vermont Jury Instructions: Civil and Criminal § 7.28, at 7-79
(1993) (setting forth model jury instruction on comparative negligence
requiring charge on defendant's burden of proof).
¶ 17. Furthermore, because it is central to the ultimate issue of
liability and the jury's proper resolution of that issue, failure to give
the burden-of-proof instruction on comparative negligence has been held to
constitute prejudicial error requiring reversal of the judgment. See,
e.g., May v. Wash., Va. & Md. Coach Co., 197 A.2d 267, 268 (D.C. 1964)
(holding that court must instruct on defendant's burden of proof "in every
case where the question of contributory negligence is submitted to the
jury" and that "its omission constitutes prejudicial error"); Arnel v.
Roettgen, 530 S.W.2d 20, 23 (Mo. Ct. App. 1975) (concluding that erroneous
failure to instruct on defendant's burden of proof on contributory
negligence claim was "obviously prejudicial"), overruled on other grounds,
Beeny v. Shaper, 798 S.W.2d 162, 163 (Mo. Ct. App. 1990); Woods v. J.R.
Liquors, Inc., 446 N.Y.S.2d 64, 65 (N.Y. App. Div. 1982) (observing that
although multiple errors in the charge to the jury required a new trial,
"[t]he most serious was the failure in this comparative negligence case to
charge that defendants had the burden of proof of showing plaintiff's
contributory negligence"); Ross, 532 S.E.2d at 617 (holding that court's
failure to give requested instruction that defendant bore the burden to
prove plaintiff's comparative negligence constituted reversible error).
¶ 18. Obviously, in the absence of plaintiff's requested
instruction, the jury here was never specifically instructed that insofar
as plaintiff's alleged negligence could be relied upon to reduce or - if
greater than fifty percent - entirely bar his recovery, the burden of proof
was on defendant. The only direction given to the jury, and that
repeatedly, was that "the burden of proof is on the plaintiff, Mr. Barber,
to make out and establish every essential element of his case." (Emphasis
added). The jury may thus have been confused as to the nature of
defendant's burden, or affirmatively misled to believe that it was somehow
plaintiff's burden to disprove defendant's allegations, resulting in a
verdict in defendant's favor in the allocation of fault. As the court-in
the analogous context of contributory negligence-concluded in Arnel:
When the error is in the omission of instruction on defendant's
burden of proof on a contributory negligence defense, the jury
receives only a direction that the burden of proof is on the
plaintiff, and the jury can hardly escape the conclusion that it
is upon the plaintiff to prove his freedom from contributory
negligence.
530 S.W.2d at 23.
¶ 19. Nor did the instructions, taken as a whole, convey the proper
message concerning defendant's burden. The closest the court came to
implying that defendant might have any burden of proof was a statement
toward the beginning of the instructions, explaining the concept of
preponderance of the evidence in terms of a "scale,"and stating that "if
the defendant's evidence makes down weight on the scales, or the scales
stand even, then the defendant is entitled to your verdict." (FN3) While
the metaphor suggests that defendant may carry some burden or proof, it
does nothing to relate that burden to the elements and proof requirements
of comparative negligence, a subject which the court did not address until
much later in its instructions. Thus, we cannot conclude with any
confidence that the jury made a connection between the "scales" metaphor
and the comparative negligence doctrine, much less that they understood it
to mean that defendant had the burden to prove all the essential elements
of her comparative negligence claim. See Knapp, 168 Vt. at 592, 729 A.2d
at 722 (rejecting the State's claim that the trial court's brief, accurate
clarification of the law "negated the prejudice that resulted from the
court's total failure to instruct on the State's burden of proof").
Furthermore, while the court expressly instructed that it was plaintiff's
burden to prove not only that defendant was negligent, but also "to prove
by a preponderance of the evidence that the negligence was the proximate
cause of his injuries," the court gave no corresponding instruction on
defendant's burden. The court did not instruct that-for purposes of
establishing plaintiff's comparative negligence-it was defendant's burden
to prove that plaintiff's negligence was a proximate cause of the accident.
Where, as here, evidence was introduced that plaintiff had consumed
alcohol, and the jury was specifically instructed that they could consider
whether alcohol had impaired plaintiff's ability to operate his vehicle, an
instruction clearly delineating defendant's burden of proof on this issue
was essential.
¶ 20. We hold, therefore, that the trial court's failure to instruct
on defendant's burden of proof was prejudicial error, and requires reversal
of the judgment.
¶ 21. Plaintiff also contends the court erred in declining to direct
a verdict in his favor on defendant's liability for the violation of
several traffic statutes. (FN4) In fact, the jury expressly found that
defendant was negligent; thus, any possible error in this regard was
harmless. Furthermore, it is well settled the violation of a safety
statute is not negligence per se, but rather creates a prima facie case of
negligence which then shifts the burden of production to the party against
whom the presumption operates. Bazzano v. Killington Country Vill., Inc.,
2003 VT 46, ¶ 6, 175 Vt. 534, 830 A.2d 24. Defendant met that burden here
through her testimony that plaintiff's activated turn signal and slowing
rate of speed through the intersection induced her to make the turn, a
response which the jury could have found to be reasonable, as well as
through other evidence that plaintiff was intoxicated and therefore may not
have been aware of his turn signal or in full control of his vehicle.
Accordingly, we conclude that the court did not err in denying the motion
for judgment as a matter of law on defendant's liability.
II.
¶ 22. Plaintiff raises a number of additional claims which
we address briefly for the benefit of the court on remand. Plaintiff
argues the court erred in admitting evidence of his alleged intoxication
because it was irrelevant to the issue of proximate cause. Plaintiff's
argument rests on the testimony of his accident reconstruction expert, Dr.
Richard McLay, who concluded-based on the locations of plaintiff's and
defendant's vehicles just before the collision-that plaintiff had no time
to avoid the accident. Thus, plaintiff argues that any intoxication on his
part was irrelevant to the cause of the accident. Plaintiff's argument
overlooks several key points raised at trial. First, Dr. McLay conceded
that his analysis was based on the fact that plaintiff was following very
closely behind the driver immediately in front of him, and acknowledged
that plaintiff could have avoided the accident if he had been several car
lengths farther back. Plaintiff's alleged intoxication was thus relevant
to whether he was driving in an unsafe manner in this regard. In addition,
defendant argued, and the court found, that plaintiff's intoxication was
relevant to his overall awareness at the time of the accident, and, in
particular, his knowledge as to whether his turn signal was or was not
activated. Accordingly, we find no error in the court's admission of the
evidence of intoxication.
¶ 23. In a related vein, plaintiff argues that the court admitted
the intoxication evidence solely for the purpose of assessing his
competence, i.e., his ability to accurately recall the events surrounding
the accident, and that any probative value in this regard was substantially
outweighed by the danger of undue prejudice, under V.R.E. 403. The court
made it clear, however, that it considered the intoxication evidence to be
relevant on several fronts, including plaintiff's ability to recollect the
events surrounding the accident, his capacity to safely control the
vehicle, and his overall awareness of what was transpiring at the time of
the accident, including in particular whether his turn signal was
activated. (FN5) Consistent with its ruling, the court instructed the
jury that it could consider evidence of intoxication with respect to
whether it affected plaintiff's ability to recall events or impaired his
operation of his vehicle. We thus find no basis to conclude that the court
abused its discretion in rejecting plaintiff's assertion that the probative
value of the evidence was substantially outweighed by its prejudicial
effect. See Pirdair v. Med. Ctr. Hosp. of Vt., 173 Vt. 411, 418, 800 A.2d 438, 444 (2002) (court's discretionary ruling under V.R.E. 403 is "given
considerable latitude on appeal" and burden to show abuse of discretion "is
heavy") (internal citations omitted).
¶ 24. Plaintiff also claims there was insufficient evidence to
support the court's instruction on safety statutes relating to a driver's
duty not to follow another vehicle more closely "than is reasonable and
prudent," 23 V.S.A. § 1039, and a driver's duty not to drive "at a speed
greater than is reasonable," id. § 1081(a). As noted, however, there was
testimony that plaintiff was following very closely behind the vehicle
immediately in front of him, and that allowing a greater distance might
have allowed him to avoid the accident. Accordingly, the instruction on
this issue was proper. See Green Mountain Inv. Corp., 174 Vt. 495, 497,
807 A.2d 461, 463 (2002) (mem.) (requiring jury charge on all issues raised
by pleadings and supported by the evidence). Plaintiff's claim with
respect to the issue of excessive speed is more firmly grounded, as there
was no evidence that plaintiff exceeded the speed limit of thirty-five
miles per hour; indeed, defendant alleged that plaintiff had, in fact,
slowed as he entered the intersection as if to turn. Accordingly, we
conclude that the instruction on this point was error.
¶ 25. Finally, plaintiff contends the court erroneously admitted a
portion of the testimony of Dr. Peter Moses, a gastroenterologist called by
defendant. Plaintiff asserts that the expert was not qualified to give an
opinion as to whether the collision could have caused plaintiff's alleged
injuries because he "has no physics, engineering or surgical background."
The record discloses that Dr. Moses's testimony was based on his "fairly
extensive" experience in treating "multi-trauma patients," and consisted of
his observation that "it would be very unusual to have traumatic injury to
any organ system that isn't apparent in some way immediately," and that
given plaintiff's lack of symptoms after the accident it did not "make
sense to me that it would cause severe trauma to the internal organs." Dr.
Moses later added that there was no scientific data linking motor vehicle
accidents and recurrent hiatal hernias. Contrary to plaintiff's claim, the
court could reasonably have concluded that the testimony was within Dr.
Moses's area of expertise and experience. Accordingly, we find no basis to
conclude that the court erred in allowing its admission. See USGen New
England, Inc. v. Town of Rockingham, 2004 VT 90, ¶ 22, 177 Vt. 193, 862 A.2d 269 (we review court's decision to admit witness's testimony for abuse
of discretion).
Reversed and remanded for further proceedings consistent with the
views expressed herein.
FOR THE COURT:
_______________________________________
Chief Justice
------------------------------------------------------------------------------
Footnotes
FN1. Subsequent criminal and civil-suspension proceedings against plaintiff
were dismissed because of deficiencies in the administration of plaintiff's
blood alcohol tests. The trial court barred the admission of plaintiff's
test results in this proceeding, as well.
FN2. Although Timmins, the Ohio decision on which plaintiff principally
relies, suggests that the cases are not entirely uniform in allowing an
affirmative defense based on the plaintiff's proceeding straight after
signaling a turn, it is worth observing that Ohio was not at the time a
comparative negligence state, so that the defendant's successful showing of
contributory negligence by the plaintiff resulted in an absolute judgment
for the defendant, rather than an allocation of fault and comparable
reduction in the plaintiff's recovery. 236 N.E.2d at 666. Prosser has
noted that the harshness of this all-or-nothing rule led many courts in the
past to hold that the plaintiff's conduct was not negligent as a matter of
law. W. Keeton, Prosser and Keeton on Torts, § 67, at 469 (5th ed. 1984).
Whether or not this was the motivation in Timmins, we are not persuaded
that an absolute bar to recovery in these circumstances is the
better-reasoned rule, or consistent with the comparative fault approach
that we employ in Vermont.
FN3. The court's full statement was as follows:
Think of a set of legal scales, if you will. That of the
plaintiff on one side, and that of the defendant on the other. If
the plaintiff's evidence makes down weight on the scales, he is
entitled to your verdict. On the other hand, if the defendant's
evidence makes down weight on the scales, or if the scales stand
even, then the defendant is entitled to your verdict.
FN4. Plaintiff relied at trial on several traffic safety statutes
providing that a driver intending to turn left as an intersection, or
stopped at an intersection, must yield the right of way to any vehicle
approaching from another direction and which has entered the intersection,
and must not make the turn unless it can be made with reasonable safety.
23 V.S.A. §§ 1046, 1047, 1064.
FN5. As the court explained, "under the circumstances, the consumption of
alcohol and its effect on the mind and the ability to recollect what was
going on and the ability to maintain control is of crucial relevance here."
Later, the court ruled that it planned to instruct on intoxication "and how
a jury can consider that evidence in terms of a witness's competence, and
also on the issue of whether there had been any violations of any safety
statutes in this case, such as failure to maintain control, the signal
issue, and simply recollection of events." As the court explained: "I
think its probative on all of those things." Although at a later point
during the charge conference the court stated that the "critical nature of
the alcohol in this case" concerned plaintiff's ability to recall events,
it again explained that the evidence was also "relevant on the issue of
whether he failed to maintain control of his vehicle," and plaintiff's
credibility "as to whether the signal was on or not." The record thus
reveals that the evidence of intoxication was admitted for several reasons,
and the court instructed the jury accordingly.
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