Gilman v. Towmotor Corp.

GILMAN_V_TOWMOTOR_CORP.90-531; 160 Vt. 116; 621 A.2d 1260

[Opinion Filed 25-Sep-1993]

[Motion for Reargument Withdrawn 05-Mar-1993]

 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. 90-531


 Gary A. Gilman                               Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Towmotor Corporation                         May Term, 1992
 & Liberty Mutual Insurance Company


 Arthur J. O'Dea, J.

 Thomas W. Costello, Brattleboro, and Peter N. Munsing of Mayerson, Munsing,
   Corchin, Rosato & Ostroff, P.C., Spring City, Pennsylvania, for
   plaintiff/cross-appellant

 Robert D. Rachlin and Robert A. Miller, Jr., of Downs Rachlin & Martin,
   Burlington, for defendant-appellant Towmotor Corporation

 Robert P. Gerety, Jr., and William D. Gillis of Plante, Hanley & Gerety,
   P.C., for defendant-appellee Liberty Mutual Insurance Company



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



      MORSE, J.   Plaintiff sought recovery for injuries he sustained at his
 place of employment when a forklift holding a large vat of glue tipped over.
 The jury awarded plaintiff nearly $280,000 in damages on a strict
 liability claim against defendant Towmotor Corporation, the forklift
 manufacturer.  To that amount, the court added interest at the statutory
 rate of 12% per annum plus costs, for a total judgment of approximately
 $400,000.  The jury also returned a verdict in favor of defendant Liberty
 Mutual Insurance Company, the workers' compensation carrier, on plaintiff's
 claim of negligent safety inspection of the workplace.
      On appeal, Towmotor claims that the trial court erred by not
 instructing the jury on proximate cause and comparative fault, and by its
 calculation of prejudgment interest.  Plaintiff also appealed, claiming he
 is entitled to a new trial against Liberty Mutual because the trial court
 abused its discretion in admitting into evidence the workers' compensation
 policy and the fact that Liberty Mutual paid him workers' compensation
 benefits, and in limiting plaintiff's cross-examination of a company
 witness.  We affirm both judgments.
                            I.  Towmotor's Appeal
                             A.  Proximate Cause
      Towmotor's first claim of error is that the trial court failed to
 instruct the jury on the element of proximate cause in the strict-products-
 liability claim.  Proximate cause, or proof that a product's defect legally
 caused the injury, is a prerequisite for recovery in a claim of strict
 liability in tort.  American Law of Products Liability 3d { 4.3 (1987); see
 also Zaleskie v. Joyce, 133 Vt. 150, 155, 333 A.2d 110, 113-14 (1975)
 (doctrine  of strict product liability, as set forth in Restatement (Second)
 of Torts { 402A (1965), adopted as law).  Failure to instruct the jury on an
 element relevant to the decision may be reversible error if the error is
 prejudicial. See Mobbs v. Central Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566,
 571 (1990) (trial court is required to instruct jury fully and correctly on
 all points relevant to the decision, but degree of elaboration is within
 court's discretion); see also Silva v. Stevens, 156 Vt. 94, 107-08, 589 A.2d 852, 860 (1991) (party appealing a jury charge must establish both that it
 was erroneous and that prejudice resulted).
      The issue of causation was presented to the jury for deliberation on
 the strict liability claim against Towmotor.  The court instructed that
 "[o]ne who sells any product in a defective condition unreasonably dangerous
 to its user or consumer is subject to liability for physical harm thereby
 caused to the ultimate user . . . ."  (Emphasis added.)  Although the court
 did not specifically define "proximate cause," both plaintiff and Towmotor
 presented conflicting theories of direct causation.  The jury answered "yes"
 when asked in writing if the defective condition of the forklift was "a
 cause" of the accident.  Furthermore, while "proximate cause" was expressly
 defined only as it applied to the claim against Liberty Mutual, the court
 apprised the jury that the concept of intervening cause was applicable in
 both the claim against Towmotor and that against Liberty Mutual.  These
 instructions were stated in part as follows:
             As far as proximate cause is concerned, . . . [t]he
           key here is whether the Defendant's negligence led to
           the accident or the injury in a natural and uninter-
           rupted sequence of events, whether or not the
           Defendant's negligence was a substantial factor in
           bringing about the injuries, whether the accident or the
           injuries would not have happened if the Defendant had
           not been negligent.

             We have a legal definition in a legal dictionary that
           defines proximate cause as that which [occurs] in a
           natural and continuous sequence unbroken by any
           efficient intervening cause . . . .


       The term "proximate cause" has been considered misleading in that it
 is not necessarily predicated on nearness in time or distance.   Perkins v.
 Vermont Hydro-Electric Corp., 106 Vt. 367, 381, 177 A. 631, 637 (1935)
 ("efficient and producing cause" more accurate terminology as proximate
 cause often describes a cause without which the injury would not have
 occurred); see also Tufts v. Wyand, 148 Vt. 528, 530, 536 A.2d 541, 542
 (1987) (finding of proximate cause depends on showing that negligent act was
 cause in fact of injury).
      Both plaintiff and Towmotor offered expert testimony to support their
 theories of causation.  Plaintiff's expert argued that the forklift was
 defective because of excessive "drift" or movement in the mast of the lift
 when overloaded, thereby causing the accident.  He submitted that the
 forklift was unreasonably dangerous, and that Towmotor had not provided
 adequate warnings of the possible consequences of overload.  Towmotor, on
 the other hand, submitted testimony that the alleged movement was so small
 that, even if overloaded, the movement could not have caused the forklift to
 tip over.  Towmotor contended that the tip-over must have been caused by an
 external force, such as the operator dismounting the lift while a load was
 suspended, improper placement of the vat on the lift, or external contact
 with the overloaded lift's front end.  Towmotor argued that any one of these
 factors, coupled with the failure of plaintiff's employer to train and
 supervise operators properly, caused the accident.  The verdict reflected
 that the jury found the theories of plaintiff's expert credible.
 Incantation of proximate cause definitions would not have significantly
 helped the jury resolve the conflicting theories of causation in this case.
                         B.  Comparative Negligence
      Towmotor next asserts that the trial court's refusal to instruct the
 jury on comparative negligence as applied in strict-products-liability
 actions amounts to reversible error.  Comparative negligence requires the
 negligence of the plaintiff to be compared to the negligence of the
 defendant, and recovery is reduced according to the proportional amount of
 plaintiff's negligence.  12 V.S.A. { 1036.  This may be problematic in
 strict liability cases, as strict liability imposes liability based on
 causation, but without fault or negligence in the traditional sense.  See 2
 M. Madden, Products Liability { 13.13 (2d ed. 1988).  Instead, the trial
 court instructed the jury on the defense of assumption of risk as a complete
 bar to plaintiff's recovery.
      Whether or not the trial court erred by failing to charge on
 comparative negligence, the error, if any, was harmless.  In response to a
 specific written question, "Was the plaintiff Gary Gilman negligent?" the
 jury answered, "No."  There being no negligence on the part of plaintiff,
 there can be no fault to compare.
                         C.  Interest Calculation
      Last, Towmotor contends that the court erred in its instructions on
 damages and its calculation of prejudgment interest.  In response to an
 interrogatory, the jury found that of $279,166 in total compensation for
 damages, $199,000 represented the amount of "medical expenses, lost
 wages/income, pain, suffering, impairments and other losses" from the date
 of the accident until the date of verdict.  The court added to the $199,000
 figure 12% per annum interest from the date of the accident until the
 verdict.  Towmotor argues that the jury's failure to break down past damages
 according to type and date incurred gave plaintiff "windfall" interest.
      Prejudgment interest in this case was proper to make plaintiff whole,
 but must be calculated on liquidated or reasonably ascertainable damages
 only.  Towmotor is correct that interest is not to be added to "soft"
 damages such as pain and suffering.  Turcotte v. LaRose, 153 Vt. 196, 200
 n.2, 569 A.2d 1086, 1088 n.2 (1989).  No objection, however, was made to the
 instruction or interrogatories on the point now raised by Towmotor, and it
 was understood at trial that interest would be calculated on the past
 damages found by the jury.  Towmotor's point is therefore waived.  V.R.C.P.
 51(b); see Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 160, 569 A.2d 486, 490 (1989) (failure to object to portion of instruction on damages
 precludes review on appeal).
                           II.  Plaintiff's Appeal
                     A.  Worker's Compensation Policies
      Plaintiff submits that the court erred by admitting into evidence the
 workers' compensation policy that reserved to Liberty Mutual the right to
 inspect plaintiff's work site.  Trial courts have great latitude in
 decisions to admit or exclude evidence, and such decisions will not be
 reversed absent an abuse of discretion resulting in prejudice.  See Silva,
 156 Vt. at 111, 589 A.2d  at 862 (decision to admit evidence will be reversed
 only if probative value is significantly outweighed by danger of unfair
 prejudice).  The insurance policy admitted over plaintiff's objection
 states:
              A.   Inspection

              We have the right, but are not obliged to inspect
         your workplaces at any time. Our inspections are not
         safety inspections. They relate only to the insurability
         of the workplaces and the premiums to be charged. We may
         give you reports on the conditions we find. We may also
         recommend changes. While they may help reduce losses, we
         do not undertake to perform the duty of any person to
         provide for the health or safety of your employees or
         the public.

              We do not warrant that your workplaces are safe or
         healthful or that they comply with laws, regulations,
         codes or standards. . . .

      Plaintiff contended that his employer relied on Liberty Mutual to make
 safety inspections.  The policy, as the written express agreement between
 the employer and Liberty Mutual, is relevant to the reasonableness of that
 reliance.  Liberty Mutual did not contend that the policy itself defined its
 duty, or lack thereof, but that it was one factor in establishing the extent
 and nature of Liberty Mutual's "undertaking."  See, e.g., Derosia v. Liberty
 Mutual Ins. Co., 155 Vt. 178, 186, 583 A.2d 881, 885 (1990) (workers'
 compensation carrier found liable for negligent inspections despite an
 express liability disclaimer in the policy).
      The court instructed the jury that
           [t]here was a contract of insurance between the parties
           in effect at the time of the accident. . . . [T]hat is
           something that you look at and that you consider, not
           exclusively, and it's not the sole determination of the
           question. . . . I must point out to you that [the
           policy] together with other items in evidence is some-
           thing for you to consider in determining whether or not
           a duty existed, whether or not the plaintiff has proven
           by a preponderance of the evidence the existence of a
           duty.

 This appropriately informed the jury of the weight to be given the policy
 and diminished the chance of prejudice in admitting the liability
 disclaimer.

        Plaintiff also argues that the court should have allowed a prior
 workers' compensation policy to be admitted into evidence to show an
 inspection procedure employed during the time when the alleged negligent
 actions took place.  The trial court did not abuse its discretion by
 excluding the older policy.  The newer policy was similar in language to the
 old, and simply added the explicit disclaimer -- "[o]ur inspections are not
 safety inspections."  Given that the newer policy contained no substantial
 changes, there is no error.
      Plaintiff next asserts that the trial court improperly restricted his
 right to cross-examine a Liberty Mutual employee about the language in the
 Liberty Mutual policy.  The extent to which a party may cross-examine a
 witness is within the sound discretion of the court. V.R.E. 611(b);
 Contractor's Crane Serv., Inc. v. Vermont Whey Abatement Authority, 147 Vt.
 441, 450, 519 A.2d 1166, 1173 (1986).  The court sustained defendant's
 objection to plaintiff's inquiry as to whether the witness had discussed
 policy provisions with other Liberty Mutual employees.  The question asked
 for an irrelevant fact, and plaintiff was not precluded from questioning the
 witness about the policy and obligations of the company.  There was no
 error.
                    B.  Payment of Workers' Compensation
      Finally, plaintiff asserts that he was prejudiced by the trial court's
 admission of evidence that he had received workers' compensation benefits.
 The error was compounded, he claims, by the court's refusal to advise the
 jury of the amount of the payments or of Liberty Mutual's lien or setoff
 rights.  Plaintiff argues that the rule set forth in Slayton v. Ford Motor
 Co., 140 Vt. 27, 29, 435 A.2d 946, 947 (1981), stating that the fact and
 amount of a liquidated settlement between plaintiff and one of several
 defendants should not to be disclosed to the jury, is controlling.  However,
 this rule has, following the adoption of V.R.E. 408, been modified to allow
 the trial court to admit evidence of settlement where it would be unfair and
 prejudicial to exclude such evidence. Sampson v. Karpinski, 147 Vt. 315,
 320, 515 A.2d 1066, 1070 (1986) (where strict adherence to Slayton rule
 results in unfair result, "admission of sufficient evidence to alleviate
 that prejudice is within the sound discretion of the trial judge").
      The trial court concluded that because plaintiff's theory of liability
 against Liberty Mutual was not based on the insurance carrier's obligation
 to pay the plaintiff for injuries suffered on the job, and that this obli-
 gation had been met, the fact of payment could be disclosed to the jury.
 The jury undoubtedly knew Liberty Mutual was the workers' compensation
 carrier for plaintiff's employer.  Its presence in the lawsuit was predi-
 cated upon that relationship.  Payment of benefits, therefore, could be
 readily inferred.  "[T]he trial court is in the best position . . . to
 determine whether, on the circumstances before it, prejudice is more likely
 to occur by informing the jury of the fact of settlement or by excluding it
 from its consideration."  Id. at 321, 515 A.2d  at 1070.  If the jury may
 infer payment of workers' compensation or it is admitted as fact, the jury
 should be instructed to disregard payment in its damages determination.
 Id.  Here, the court instructed the jury:
           Your duty . . . is to completely disregard the workman's
           compensation aspects of this case.  What benefits were
           received, what they amounted to, who paid them, what
           their rights are as a result of having paid those
           benefits, all of that material is to stay out of your
           deliberations and out of your concerns and
           considerations.

 Such instruction was all that was required.  Consequently, there is no
 error.
      Affirmed.


                                         FOR THE COURT:



                                         __________________________
                                         Associate Justice