Ball v. Melsur Corp.

Annotate this Case
BALL_V_MELSUR_CORP.92-487; 161 Vt. 35; 633 A.2d 705

[Filed 24-Sep-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. 92-487

 Albert L. Ball & Jeanette Ball               Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Melsur Corporation                           May Term, 1993

 James L. Morse, J., specially assigned

 Frederic deG. Harlow and Martha Anne Wieler of Harlow Liccardi &
   Crawford, P.C., Rutland, for plaintiffs-appellees

 Sheila C. Files and Douglas Richards of Richards & Files, P.C.,
   Springfield, for defendant-appellant

 PRESENT:  Allen, C.J., Gibson and Johnson, JJ., and Peck, J. (Ret.),
           Specially Assigned

      ALLEN, C.J.   Defendant Melsur Corporation appeals an adverse judgment
 in a personal injury case and seeks a new trial.  Defendant claims that:
 (1) the administrative judge for the trial courts committed reversible error
 when he denied defendant's motion for recusal; (2) the trial court committed
 reversible error when it allowed plaintiffs to present evidence of certain
 OSHA/VOSHA standards and their alleged violation; (3) the jury verdict was
 a result of passion, caprice, prejudice, compromise, or some other
 consideration; and (4) the trial judge demonstrated prejudice in favor of
 plaintiffs when he engaged in a pattern of rulings in their favor throughout
 the trial.  We affirm.
      On February 12, 1987, plaintiff Albert Ball was injured while he was
 delivering fine sawdust, called wood flour, to defendant.  Plaintiff was


 employed by Allen-Rogers, Ltd., as a truck driver.  Allen-Rogers was one of
 several companies that delivered wood flour to defendant.
      On the date in question, plaintiff backed his truck up to defendant's
 loading dock, parked it, and went inside the plant.  A metal dockboard was
 placed between the loading dock and the rear of the truck by an employee of
 defendant, whose responsibility was to unload the sacks of wood flour with a
 forklift.  In the course of unloading the wood flour, the forklift became
 stuck on the dockboard.  Plaintiff was asked to help dislodge the forklift.
 In response, plaintiff picked up a piece of wood, and using it as a lever,
 placed it under the forklift and began prying the forklift upward.  The
 piece of wood slipped and plaintiff fell backward into a cement wall,
 thereby injuring his back.
      Plaintiffs claim that the forklift operator had not been adequately
 trained in forklift operation and that it was unsafe to ask plaintiff Albert
 Ball to attempt to pry or push the forklift when it was stuck.  They also
 alleged that the dockboard did not conform with specific OSHA/VOSHA
 regulations.  Defendant denied any negligence and filed a motion in limine
 seeking a pretrial determination that plaintiffs be precluded from
 introducing any evidence at trial of the alleged OSHA/VOSHA violations.
      When the case was originally scheduled to be tried, the presiding
 judge for the Windham Superior Court was not available.  Both parties
 requested the administrative judge for the trial courts to specially assign
 the case for trial in early August of 1992 if a judge was available.  James
 L. Morse, a justice on this Court and former superior court judge, had
 agreed to an assignment in the Windham Superior Court because of the
 unavailability of the presiding judge.  When the justice was assigned this
 case, he recalled that plaintiffs' attorney had filed an ethical complaint


 against him with the Judicial Conduct Board some six or eight years earlier,
 which was resolved when the Board dismissed the complaint.  The justice
 asked not to be assigned to the case, out of concern that plaintiffs'
 attorney might believe the assignment was done solely because of the prior
      Sometime prior to the scheduled trial date, counsel for plaintiffs
 contacted the administrative judge to inquire why Justice Morse had decided
 not to preside over this case.  Counsel understood from the clerk of the
 court and the administrative judge that the justice's decision was based on
 the prior ethical complaint.  The attorney then wrote to Justice Morse on
 July 28, 1992, stating that he felt such a decision was unwarranted since
 the Conduct Board had vindicated the justice.  Plaintiffs' counsel went on
 to say that he felt that the request for reassignment showed that the
 justice bore a grudge against him for filing the complaint.
      In response, Justice Morse drafted a letter to dispel the attorney's
 misapprehension and accepted assignment as trial judge of the case.  This
 letter was hand delivered at a pretrial conference three days later, on the
 first day of trial.  In addition to Justice Morse's letter, copies of all
 prior communications were also hand delivered to defense counsel at the
 pretrial conference.
      On the second day of trial, defendant filed a motion for recusal
 alleging that "past events which occurred between Justice Morse and attorney
 Harlow" required it.  This motion was denied.  The trial judge later vacated
 his ruling and referred the motion to the administrative judge pursuant to
 V.R.C.P. 40(e).(FN1) The administrative judge heard oral arguments on the


 motion for recusal at the end of the third day of trial and denied the
      Defendant argues that the administrative judge for the trial courts
 committed reversible error when he denied defendant's motion for recusal of
 the trial judge.  Before turning to the merits of defendant's claim,
 however, we must identify the appropriate standard of review to apply to the
 administrative judge's decision.  Canon 3C(1) of the Code of Judicial
 Conduct establishes the general rule for disqualification of judges,
 providing that "[a] judge shall disqualify himself in a proceeding in which
 his impartiality might reasonably be questioned."  A.O. 10, Canon 3C(1).
 This standard is met "whenever a doubt of impartiality would exist in the
 mind of a reasonable disinterested observer."  State v. Hunt, 150 Vt. 483,
 492, 555 A.2d 369, 375 (1988), cert. denied, 489 U.S. 1026 (1989) (quoting
 Richard v. Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985)).  Since
 reasonable minds may differ on an issue, a certain degree of discretion
 inheres in the determination of whether a judge's impartiality may be
 doubted in a given situation.  Moreover, the judge subject to the recusal
 motion is accorded a presumption "of 'honesty and integrity,' with the
 burden on the moving party to show otherwise in the circumstances of the
 case."  Klein v. Klein, 153 Vt. 551, 554, 572 A.2d 900, 903 (1990).
      We decline to hold that a per se lack of impartiality, mandating
 recusal, arises whenever a judge is the subject of a judicial conduct
 complaint by an attorney.  On its face, the "reasonable disinterested
 observer" standard of Canon 3C(1) forestalls such an inflexible per se rule,
 but instead enables the decisionmaker to take particular circumstances into
 account.  Policy considerations also counsel against a mandatory recusal


 rule.  Otherwise, an attorney would need only file a complaint, possibly
 groundless, to avoid a particular judge thereafter.  Conversely, the
 requirement could cause an attorney to withhold a legitimate complaint
 against a judge that would effectively bar later appearances before that
 judge.  Either scenario could undermine the integrity and goals of the
 judicial conduct review process.  Considering these problems, and the
 effectiveness of the current flexible standard, we see no reason to adopt a
 per se recusal rule.
      Defendant argues, citing Richard v. Richard, 146 Vt. 286, 288, 501 A.2d 1190, 1191 (1985), that disqualification is required if even the slightest
 question exists as to a judge's impartiality.  In Richard, however, we
 specified that this level of scrutiny was required "[a]bsent a procedure in
 Vermont for referral of close questions to another judge."  Id.  Since
 Richard was decided, Rule 40(e) was adopted and mandates the intervention of
 a disinterested judicial officer if the trial judge does not grant a motion
 to recuse.  According to Rule 40(e)(3), "[t]he judge whose disqualification
 is sought shall either disqualify himself or herself or, without ruling on
 the motion, refer the motion to the Administrative Judge for Trial Courts .
 . . ."  V.R.C.P. 40(e)(3).  As noted above, Canon 3C(1) provides a degree of
 discretion on the decision whether or not to recuse.  Therefore, if the
 trial judge does not grant the motion to recuse, the question of recusal
 hinges on the administrative judge's exercise of discretion.  On review this
 Court will disturb such a ruling only if there has been an abuse of
 discretion, that is, if the record reveals no reasonable basis for the
 decision.  State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982).
 Having determined the appropriate standard of review, we turn to the merits
 of defendant's claim.


      The administrative judge did not abuse his discretion by denying the
 motion to recuse the trial judge.  Defendant does not dispute that both
 sides had an adequate opportunity to present argument and evidence to the
 administrative judge.  The record shows that the administrative judge was
 fully informed as to the nature and content of all communications between
 plaintiffs' counsel and the trial judge prior to trial, and of defendant's
 efforts to secure a recusal in the first two days of trial.  The
 administrative judge found that any problem between the trial judge and
 plaintiffs' counsel had been resolved, a finding amply supported by the
 record.  The administrative judge also concluded that defendant had failed
 to demonstrate that whatever occurred between the trial judge and
 plaintiffs' counsel would have a negative impact on defense counsel or his
      Furthermore, defendant failed to make any affirmative demonstration of
 actual prejudice or bias by the trial judge.  A party seeking a trial
 judge's recusal must make a clear and affirmative showing of bias or
 prejudice.  State v. Carter, 154 Vt. 646, 647, 577 A.2d 280, 281 (1990)
 (mem. dec.); Klein, 153 Vt. at 554, 572 A.2d  at 902.  Defendant argued only
 that the potential existed for the trial judge to overcompensate in
 avoiding the appearance of bias against plaintiffs, with the result of
 prejudicing defendant.  Defendant believed that none of the trial judge's
 rulings had gone in its favor, but never specified how any ruling evidenced
 bias.  Absent an affirmative showing of bias, and in light of the
 resolution of the misunderstanding between the trial judge and plaintiffs'
 counsel well before trial, we find that the administrative judge had a
 reasonable basis to deny defendant's motion to recuse.  There was no abuse
 of discretion.


      We note, however, two procedural errors.  First, the trial judge erred
 by denying defendant's motion to recuse, though he did subsequently vacate
 the motion and refer the matter to the administrative judge.  In this case,
 Rule 40(e) clearly and unequivocally reserves to the administrative judge
 the power to deny a motion to recuse; a trial judge may only grant the
 motion.  V.R.C.P. 40(e)(3).  But the record shows that the administrative
 judge took this erroneous ruling into account in his deliberations on the
 motion to recuse, and factored it into his conclusion that defendant had not
 been prejudiced.  Therefore, the error was harmless.
      Second, the record also shows that the administrative judge
 acknowledged the potential waste of resources that would result were the
 five-day trial aborted by a recusal of the trial judge at the end of the
 third day.  Conservation of scarce judicial resources, though a constant
 concern, does not enter into the consideration of whether recusal is
 necessary.  Rule 40(e)(1) does require recusals to be resolved as soon as
 practicable, presumably to reduce the risk of waste inherent in mistrials.
 The rule clearly stipulates, however, that "[a] motion which is filed in
 violation of [Rule 40(e)(1)] shall not for this reason be denied"; attorney
 sanctions are the prescribed deterrent for delay.(FN2) Id.  This provision
 demonstrates an unwillingness to allow considerations of economy to override
 assurance of fairness in a matter as important as recusal of the trial
 judge.  Though it was improper for the administrative judge to consider the
 potential waste of three days of trial, his decision rested on a finding of
 no bias or prejudice against defendant, and is affirmed on that basis.


      Defendant argues that it was error to admit evidence regarding certain
 OSHA and VOSHA standards and defendant's violation of those standards.
      After commencement of the litigation, plaintiffs moved to amend their
 complaint "to plead OSHA and VOSHA regulations that were violated by the
 defendant."  The motion was granted and defendant filed a motion in limine
 asking that plaintiffs be precluded from introducing any evidence at trial
 of alleged OSHA/VOSHA violations.  Defendant argued that Albert Ball was not
 defendant's employee and was therefore not a member of the class of persons
 that OSHA/VOSHA is designed to protect.  This motion was denied.
      Plaintiffs first contend that defendant waived its right to appeal the
 introduction of OSHA/VOSHA standards into evidence when defendant failed to
 object to the court's OSHA/VOSHA jury charge.  Although it is true that an
 appellant may not challenge the correctness of instructions to which no
 exceptions were taken, V.R.C.P. 51(b), defendant does not challenge the jury
 instruction on appeal.  Rather, defendant argues that the court erroneously
 denied its motion in limine.  A party need not object to the jury
 instruction in order to preserve its objection to the introduction of
 evidence.  See Boyd v. United States, 142 U.S. 450, 457 (1892) (although
 defendants failed to object to jury charge, defendants objected to
 introduction of certain evidence, and that exception was not waived by
 failure to object to charge).  Accordingly, defendant's failure to object to
 the jury charge did not waive its objection to the introduction of
 OSHA/VOSHA standards into evidence.  We turn, then, to the question of
 whether those standards were properly admitted at trial.
      The trial court has broad discretion in the admission and exclusion of
 evidence, discretion limited only by constitutional concerns, statutory


 provisions, and the rules of evidence.  V.R.E. 402, 403.  Generally,
 evidence is admissible if relevant, V.R.E. 402, and relevant if it has any
 tendency to make the existence of any fact of consequence to the
 determination of the action more or less probable, V.R.E. 401.  At issue in
 this case is the duty, if any, that defendant owed plaintiff; thus, the
 VOSHA/OSHA rules are admissible if they bear on the existence of a duty.
      The nature of any duty owed to plaintiff depends on plaintiff's
 relationship to defendant.  A business invitee is "one invited or permitted
 to enter or remain on land in possession of another for a purpose directly
 or indirectly connected with business dealings between them." Johnstone v.
 Bushnell, 118 Vt. 162, 164, 102 A.2d 334, 336 (1954).  Plaintiff was making
 a delivery of wood flour for defendant's use in the manufacture of school
 furniture, which qualifies as a purpose related to business dealings.
 Therefore, plaintiff was on defendant's premises as a business invitee.
      In Vermont, a property owner must use reasonable care to keep its
 premises in a safe and suitable condition so that a business invitee "is not
 unnecessarily or unreasonably exposed to danger."  Morgan v. Renehan-Akers
 Co., 126 Vt. 494, 496, 236 A.2d 645, 647 (1967).  Plaintiffs bear the burden
 of establishing the parameters of defendant's duty in the context of
 receiving deliveries, which is why they offered the OSHA/VOSHA rules as
 evidence of that duty.  Defendant contends that VOSHA's definition of
 "employee" in conjunction with an employer's duty under VOSHA establishes
 that Albert Ball was not in the class to be protected, and therefore
 evidence of VOSHA rules was irrelevant and should not have been admitted.
 We have not addressed this question, but need not resolve it here in light
 of our resolution of the case.


      Even if the OSHA/VOSHA regulations alone do not establish a duty, they
 are properly admissible as evidence of a standard of care.  Rolick v.
 Collins Pine Co., 975 F.2d 1009, 1013 (3d Cir. 1992), cert. denied, 113 S. Ct. 1417 (1993).  OSHA/VOSHA rules governing dockboards and the training of
 forklift operators enumerate procedures to ensure safe and effective
 operation.  See 29 C.F.R. { 1910.30(a) (dockboards); VOSHA Safety and Health
 Standards for General Industry { 1910.30(a) (same); 29 C.F.R. { 1910.178
 (forklift operation); VOSHA Safety and Health Standards for General Industry
 { 1910.178 (same).  These general principles are not, per se, limited to the
 "employer-employee" relationship as defined in OSHA and VOSHA, though
 OSHA/VOSHA penalties for their violation would follow only where those
 statutes apply.  Thus, the OSHA/VOSHA rules may be borrowed "for use as
 evidence of the standard of care owed to the plaintiff."  Rolick, 975 F.2d 
 at 1014; see also Dunn v. Brimer, 537 S.W.2d 164, 166 (Ark. 1976) (quoting
 Prosser, The Law of Torts 202 (4th ed. 1971) ("'where the statute does set
 up standard precautions, although only for the protection of a different
 class of persons, or the prevention of a distinct risk, this may be a
 relevant fact, having proper bearing upon the conduct of a reasonable
 [person] under the circumstances'"); Kraus v. Alamo Nat'l Bank of San
 Antonio, 586 S.W.2d 202, 208 (Tex. Ct. Civ. App. 1979), aff'd, 616 S.W.2d 908 (Tex. 1981) (OSHA regulations are admissible in evidence as relevant to
 standards of conduct that should have been employed by owner of building
 whose wall collapsed on occupants of an automobile).  Accordingly, the
 OSHA/VOSHA regulations were properly admitted as relevant evidence of the
 standard of care.


      Defendant argues that the jury verdict for plaintiffs should be set
 aside because it was the result of passion, caprice, prejudice, compromise
 or some other consideration not in evidence.  Defendant argues that the
 jury's award is inconsistent because it does not include compensation for
 present or future pain and suffering, but does provide for future medical
      A verdict will not be upheld if "there is evidence that the jury
 'compromised its verdict.'"  Grazulis v. Curtis, 149 Vt. 371, 374, 543 A.2d 1324, 1326 (1988) (citation omitted).  In determining whether a jury verdict
 is a result of passion, caprice, prejudice, compromise or some other
 consideration not in evidence, "the threshold determination of whether a
 verdict has been compromised . . . is whether the jury could reasonably have
 calculated the damages awarded on the evidence presented." Fournier v.
 Estate of Loiselle, 132 Vt. 601, 602, 326 A.2d 155, 156 (1974).  Absent
 evidence of an abuse of discretion, we defer to the trial court to determine
 issues of compromise as it is in a better position to determine the
 question.  Rule v. Johnson, 104 Vt. 486, 491, 162 A. 383, 385-86 (1932).
      Here, the jury could have awarded future medical expenses for the
 purpose of increasing plaintiff's future earning capacity rather than
 alleviating pain or it could have concluded that the amount expended for
 medicines and treatment would eliminate the pain.  Inasmuch as the award
 granted by the jury does not manifest compromise, it should not be set
      Defendant's final claim is that the cumulative effect of certain
 evidentiary rulings demonstrate the trial judge's alleged prejudice in favor


 of plaintiffs, warranting a new trial.  Defendant does not contend that any
 one of the alleged errors in itself would require reversal and a new trial,
 but enumerates them only as evidence of a pattern of bias against
 defendant.  Therefore, we need not consider the merits of the three
 evidentiary rulings briefed by defendant, and assume for purposes of
 discussion that they were erroneous.
      As noted above, bias or prejudice must be clearly established by the
 record.  Carter, 154 Vt. at 647, 577 A.2d  at 281; Klein, 153 Vt. at 554, 572 A.2d  at 902.  We have ruled, and defendant concedes, that contrary rulings
 alone, no matter how numerous or erroneous, do not suffice to show prejudice
 or bias.  Pettengill v. New Hampshire Ins. Co., 129 Vt. 23, 33, 270 A.2d 883, 889 (1970); Leonard v. Willcox, 101 Vt. 195, 215, 142 A. 762, 771.
 There must be a showing that "conditions and circumstances are such that the
 perfectly honest and competent judge would in fact be unable to afford a
 litigant such an absolutely impartial trial as the law intends and
 requires."  Id. (citations omitted).  Defendant does not meet its burden by
 pointing out only a number of unfavorable evidentiary rulings.  Without
 other, affirmative evidence, we cannot say that the trial judge rendered his
 decisions with bias or prejudice toward defendant.

                                         FOR THE COURT:

                                         Chief Justice


FN1.    For the balance of this opinion, we refer to Justice Morse as the
 "trial judge."

FN2.    The motion in this case was timely filed because it was made as soon
 as practicable after grounds for the motion became known.  V.R.C.P.