Marzec-Gerrior v. D.C.P. Industries, Inc.

Annotate this Case

MARZEC-GERRIOR_V_DCP_INDUSTRIES.94-369; 164 Vt 569; 674 A.2d 1248

[Opinion Filed 15-Dec-1995]

[Motion for Reargument Denied 17-Jan-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. 94-369

Lawrence Marzec-Gerrior and Supreme Court
Mary Marzec-Gerrior
On Appeal from
v. Addison Superior Court

D.C.P. Industries, Inc. and June Term, 1995
David Peterson, d/b/a D.C.P.
Industries, Inc.

Joseph P. Carrara, Inc.

Edward J. Cashman, J.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for
plaintiffs-appellants Lisa Chalidze and Karen A. Kalter of Hull, Webber &
Reis, Rutland, for defendants-appellees/ cross-appellants

James C. Foley, Jr. of Deppman & Foley, P.C., Middlebury, for
third-party defendant-cross-appellee

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

ALLEN, C.J. Plaintiff Lawrence Marzec-Gerrior was injured when a
concrete slab dropped from a crane. He instituted this action for damages
against the defendant crane operator, which, in turn, brought a third-party
complaint against plaintiff's employer. Plaintiff Mary Marzec-Gerrior
joined to recover for the loss of consortium of her husband. Plaintiffs
appeal from the denial of their motion for judgment notwithstanding the
verdict following an adverse jury verdict. We affirm.

The employer hired defendant and his crane to lift prestressed
concrete slabs from a storage area in the employer's yard onto a flat-bed
trailer for transportation to a location in New Hampshire. The slabs were
connected to slings hung from the crane's hook by "rigging" -- two

bolts inserted into receptacles embedded in each end of the slab. The
bolts were inserted by employees of plaintiff's employer, and the accident
occurred because one of the bolts had been screwed down only one or two
turns rather than all the way into the insert. Plaintiff was injured while
guiding the slab onto the flat-bed trailer.

On appeal, plaintiffs assert that the trial court should have directed
a verdict for them, that the trial court erred in its charge to the jury,
and that the court erred in denying a motion to amend their complaint.

The motion for a directed verdict was based on a violation of a VOSHA
regulation, which states:

Moving the load (i) The employer shall assure that:
. . .

(b) The load is well secured and properly balanced in the sling or
lifting device before it is lifted more than a few inches.

29 C.F.R. § 1910.180(h)(3)(i)(b).

Plaintiffs contend that the fall of the slab is proof of the violation
of the VOSHA regulation and that the violation created a presumption of
negligence which was unrebutted, thereby warranting a directed verdict. As
we noted in Ball v. Melsur Corp., 161 Vt. 35, 633 A.2d 705 (1993), the
violation of an OSHA/VOSHA regulation is properly admissible as evidence of
a standard of care. Id. at 43, 633 A.2d at 712. Plaintiffs' experts
opined that the regulation required the crane operator to be certain that
the bolt was screwed in all the way, and if in doubt, to get out of his cab
and "go over and look." Defendant's evidence was that plaintiff's employer
was responsible "from the hook down" and produced expert testimony that
defendant's method for testing the reliability of the attachment of the
crane to the slab met applicable standards. In reviewing a grant or denial
of a motion for a directed verdict, this Court must view the evidence in
the light most favorable to the nonmoving party. Seewaldt v. Mount Snow,
Ltd., 150 Vt. 238, 239, 552 A.2d 1201, 1201 (1988). Any presumption
created by the evidence of the violation of the regulation was sharply
rebutted by defendant's evidence, and the trial court did not err in
denying plaintiff's motion.

Plaintiffs also argued that the court erred in its instructions to the
jury. We do not reach this issue as there was no objection made to the
charge after its delivery. Winey v. William E. Dailey, Inc., 161 Vt. 129,
138, 636 A.2d 744, 750 (1993) (post-charge objection must be made to
preserve issue for appeal).

Plaintiffs' third argument is that the trial court erred in refusing
to allow them to amend their complaint to reinstate the claim alleging
strict liability. Plaintiffs fail to demonstrate how they were prejudiced
by the denial, and in an absence of any such showing, any error will be
presumed to be harmless. Green Mountain Marble Co. v. State Highway Bd.,
130 Vt. 455, 468, 296 A.2d 198, 206 (1972). A reinstatement of the strict
liability claim would not have entitled them to a grant of their motion for
a directed verdict nor would it have cured the failure to object to the
jury instruction.

In view of our disposition, it is unnecessary to consider defendant's
request to reinstate the third-party claim.

Affirmed.

FOR THE COURT:

_______________________________________
Chief Justice

------------------------------------------------------------------------------
Concurring

No. 94-369

Lawrence Marzec-Gerrior and Supreme Court
Mary Marzec-Gerrior
On Appeal from
v. Addison Superior Court

D.C.P. Industries, Inc. and June Term, 1995
David Peterson, d/b/a D.C.P.
Industries, Inc.

Joseph P. Carrara, Inc.

Edward J. Cashman, J.

Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for plaintiffs-appellants

Lisa Chalidze and Karen A. Kalter of Hull, Webber & Reis, Rutland, for defendants-appellees/
cross-appellants

James C. Foley, Jr. of Deppman & Foley, P.C., Middlebury, for third-party defendant-cross-
appellee

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

DOOLEY, J., concurring. Our law on the effect of violation of safety
statutes and regulations on the duty owed in determining whether an actor
was negligent is in serious need of reevaluation. The traditional
analysis, defining violation of a safety statute as a rebuttable
presumption, is unworkable and internally inconsistent. A glimmer of
alternatives is perceptible in some of the cases. I write separately in
the hope that it may precipitate some movement to a usable policy in an
important area of the law.

We have historically rejected the notion that violation of a safety
statute is negligence per se. See Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 594 (1928). Instead, we have held that it creates a prima facie
case of negligence: "It gives rise to a rebuttable, rather than

conclusive presumption of negligence and proof of the attendant
circumstances may, in a civil case, counter-balance or overcome the effect
of the statute." Id. As we refined our understanding of a rebuttable
presumption to mean locating the burden of production, rather than
supplying evidence, see Tyrrell v. Prudential Ins. Co., 109 Vt. 6, 22-24,
192 A. 184, 191-92 (1937), we applied this jurisprudence to the effect of
safety statute violations. The effect was stated in 1971 as follows:

The rules of the road are safety statutes and proof of their
violation, on the part of one charged with negligence, makes out
a prima facie case of negligence against the offending operator.
But this presumption of negligence is, of course, open to rebuttal.
. . . . Being a disputable presumption, it shifts to the party against
whom it operates the burden of evidence . . . . And when that
party has produced evidence fairly and reasonably tending to show
that the real fact [i.e., negligent conduct] is not as presumed, the
office of the presumption is performed and disappears from the
arena.

Larmay v. VanEtten, 129 Vt. 368, 371, 278 A.2d 736, 738-39 (1971)
(citations omitted).

Since Larmay, we have codified the rules on rebuttable presumptions in
Rule 301 of the Vermont Rules of Evidence. We have held that Rule 301
governs the effect of a breach of a safety statute. See Favreau v. Miller,
156 Vt. 222, 233, 591 A.2d 68, 75 (1991).

The main problem with the rebuttable presumption analysis is that it
leaves no real role for the jury.(FN1) Presumptions shift the burden of
evidence production, not the burden of persuasion. V.R.E. 301(a). If the
evidence is conclusive on the existence of the basic fact -- here the
violation of a safety rule -- and the defendant fails to rebut the presence
of the presumed fact -- here that defendant was negligent -- the judge
finds the presumed fact as a matter of law. V.R.E. 301(c)(1). On the other
hand, if there is at least some evidence of the basic fact, and defendant
has offered evidence to rebut the presumed fact, "the question of the
existence of the "presumed fact [is submitted] to the jury on the evidence
as a whole without reference to the

presumption." V.R.E. 301(c)(3). In a safety rule case where there is at
least some evidence of the violation of the safety rule, the effect is that
the jury is not informed of the safety rule if the defendant puts on some
evidence that he or she was not negligent despite the rule violation.

The rule may direct the negligence question to the jury without
reference to the safety statute, but that result is inconsistent with law
and practice. Although we have cases like Larmay that envision that result
(the presumption "disappears from the arena"), we also have cases that have
reversed verdicts because the jury was not told about the safety statute.
See Campbell v. Beede, 124 Vt. 434, 438-39, 207 A.2d 236, 240-41 (1965).
We could, of course, insist on enforcement of the evidence rule but this
would give virtually no effect to a breach of a safety rule or statute. We
refer to our presumptions as "bursting bubbles" because almost any evidence
will rebut the presumption and burst the bubble. See, e.g., Woolen Mill
Assocs. v. City of Winooski, ___Vt.___, ___, 648 A.2d 860, 862 (1994). The
evidence rule means that juries will almost never be told of the safety
rules or statutes.

Trial judges are now left in an impossible situation. They must tell
the jury about the safety statute or regulation, but have no clear
direction on what to tell the jury about its effect. The result in most
cases, I suspect, is a charge like that given in this case. The judge told
the jury about the VOSHA regulation and what the words mean, but little
about what to do with it. The closest the charge comes to informing the
jury about the effect of the VOSHA regulation was in the following words:

Evidence of th[e] standard of care has come into the case
in the form test of expert and lay witnesses as to the expected
conduct of crane operators and in the form of a governmental
regulation, referred to in the trial as the VOSHA regulation. The
jury reviews all of the evidence presented on this issue to
determine the standard of care applicable to this situation.

Beyond the general direction that the jury could consider the
regulation and that it relates to the standard of care, the charge gives no
guidance on what the jury is to do if it find that defendant violated the
safety law.

The application of presumption rules has brought us far afield of the
rationale we

intended to implement. The rationale is set out in Landry:

There is, indeed, force to the conclusion that one who violates a
statute plainly enacted to compel the exercise of due care should
not be permitted to debate the question of his negligence in any
particular instance where he has seen fit to act contrary to the law
and has, when so doing, injured another whom the law was
designed to protect. Yet such a position disregards the well-known
standard of the prudent man in like circumstances on the
assumption that one could never substitute his own judgment as to
careful conduct in a definite and perhaps unusual situation for the
general judgment of the Legislature expressed in the law and be in
fact careful and prudent. Granted that the violation of such a
statute as this will usually place the wrongdoer outside the prudent
man classification, to rule that it always does so takes away from
the jury the right to apply the prudent man test at all, whenever
such a statute has been transgressed.

Landry, 101 Vt. at 112-13, 141 A. at 593-94. Rather than reserving the
opportunity for an exception where violation of the safety statute or rule
is not negligence, our rebuttable presumption analysis is taking the safety
statute or rule entirely out of the decision-making process.

Some alternatives are suggested in our cases. On a number of
occasions, we have noted: "Safety rules are not hard and fast, nor absolute
in application to all circumstances. They are guides to the main issue of
whether the actor's conduct meets the standard required of a prudent man
under the circumstances." Beaucage v. Russell, 127 Vt. 58, 62, 238 A.2d 631, 634 (1968). More recently, we stated, "[t]he violation of a safety
statute is evidence of negligence." Gilbert v. Churchill, 127 Vt. 457,
461, 252 A.2d 528, 530 (1969). Even more recently, as cited by the
majority, we have allowed evidence of violation of a safety regulation as
evidence of a standard of care, Ball v. Melsur Corp., 161 Vt. 35, 43-44,
633 A.2d 705, 712 (1993), the use made by the court in this case.

These excerpts are similar or identical to one of the main rules on
the effect of safety statutes and regulations used in other jurisdictions
-- that the violation of the safety statute or rule is evidence of
negligence. See W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 36, at 230 (5th ed. 1984). Because the language was adopted in at
least one of our cases, see Favreau, 156 Vt. at 233, 591 A.2d at 75, it is
apparently being used in jury charges in the trial

courts. In a weak form, it was used in this case.

The rule that treats violations of safety statutes and regulations as
evidence of negligence puts the safety statute or regulation before the
jury whenever it could find the statute or regulation has been violated and
the violation could be found to be a proximate cause of the harm. The
rule's weakness is that it does not direct the jury to follow the safety
statute in any case so that even egregious violations of clear and specific
safety directives become only one factor for the jury to consider. Nor
does it necessarily convey that the safety statute or regulation should be
treated as a "guide" to determining the proper standard of care. A charge
like that here, which says little more than that evidence of the safety
statute or regulation is relevant, can be seen to comply.

A stronger alternative is the negligence per se rule, which we have
rejected historically. Treating the violation of a safety statute as
negligence per se is in fact the approach followed in most states. The
"per se" approach is described in Prosser and Keeton:

Once the statute is determined to be applicable -- which is to say,
once it is interpreted as designed to protect the class of persons, in
which the plaintiff is included, against the risk of the type of harm which
has in fact occurred as a result of its violation -- and once its breach
has been established, probably a majority of the courts hold that the issue
of negligence is thereupon conclusively determined, in the absence of
sufficient excuse, and that the court must so direct the jury. The
standard of conduct is taken over by the court from that fixed by the
legislature, and "jurors have no dispensing power by which to relax it,"
except insofar as the court may recognize the possibility of a valid excuse
in a tort action for damages for disobedience of the criminal law. This
usually is expressed by saying that the unexcused violation is negligence
"per se," or in itself. The effect of such a rule is to stamp the
defendant's conduct as negligence, with all of the effects of common law
negligence, but with no greater effect. There will still remain open such
questions as the causal relation between the violation and the harm to the
plaintiff, and, in the ordinary case, the defenses of contributory
negligence, and assumption of the risk.

Keeton et al, supra § 36, at 229-30 (quoting Martin v. Herzog, 126 N.E. 814, 815 (N.Y. 1920) (Cardozo, J.)) (footnotes omitted).

This approach is also that of the Restatement (Second) of Torts
(1965). Negligence, in

the Restatement, is "conduct which falls below the standard established by
law for the protection of others against unreasonable risk of harm." §
282. The standard is generally that of a reasonable person under like
circumstances, id. § 283, which "may be (a) established by a legislative
enactment or administrative regulation which so provides, or (b) adopted by
the court from a legislative enactment or an administrative regulation
which does not so provide. . . ." Id. § 285; see also id. § 286
(establishing when standard of conduct defined by legislation or regulation
will be adopted). The unexcused violation of such legislation or
regulation is negligence in itself. Id. § 288B(1).

Although I favor adoption of a negligence per se approach, in many or
all cases, to fully implement the safety statute or rule, the most
important step is to abandon the current approach, whatever alternative is
adopted. The rebuttable presumption approach has generated scores of
appeals wherever it is used and yet has almost no real impact on the result
in any case. The real impact of safety statutes and rules is in what the
jury does with them, and yet our cases say almost nothing about that.
Virtually any alternative to the current approach is better.

I concur in the majority's analysis of the specific claims made by
plaintiffs. Plaintiffs have argued that they were entitled to a directed
verdict because defendant failed to rebut the presumption that violation of
the VOSHA rule was negligence. In view of defendant's expert evidence that
he did what was appropriate under the circumstances to assure the safety of
the lift, the presumption was clearly rebutted. I also concur that the
lack of timely objection to the charge prevents reversal on a charge error
and that there was no prejudicial error in the rejection of the motion to
amend.

_______________________________________
Associate Justice

-------------------------------------------------------------------------
Footnotes

FN1. There is a theoretical role for the jury if the violation of the
safety rule is disputed, but there is no dispute that if it was violated
defendant was negligent. See V.R.E. 301(c)(2). Although this situation is
possible, it is highly unlikely.

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