Cooper v. Burnor

Cooper v. Burnor (98-133); 170 Vt. 583; 750 A.2d 974

[Opinion Filed 23-Nov-1999]
[Motion for Reargument Denied 13-Jan-2000]


                                 ENTRY ORDER
					
                       SUPREME COURT DOCKET NO. 98-133

                              APRIL TERM, 1999

Germaine Cooper 	               }	APPEALED FROM:
	                               }
	                               }
     v.	                               }	Franklin Superior Court
	                               }	
David Burnor	                       }
                                       }
	                               }	DOCKET NO. S359-96Fc	

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


       Plaintiff Germaine Cooper filed suit in Franklin Superior Court
  against defendant David Burnor  for damages resulting from an automobile
  accident.  Plaintiff appeals the judgment, claiming that  the court erred
  by (1) excluding, as a discovery sanction, plaintiff's testimony regarding
  a  measurement that contradicted defendant's testimony; (2) failing to
  instruct the jury that a  violation of a motor vehicle safety statute
  constitutes a rebuttable presumption of negligence; and  (3) failing to
  instruct the jury on safety rules regarding stopping on the wrong side of
  the  highway.  We affirm. 

       The accident occurred at dusk in the fall of 1993.  Plaintiff was
  heading west on Route 36 in the  Town of Fairfield when defendant,
  traveling eastbound, crossed over to the opposite side of the  road in
  order to deliver a paper to a residential mailbox.  A third motorist, Ann
  Serro, who was  following defendant in the eastbound lane remained in her
  lane of travel.  As plaintiff drove  west, she approached a hill, at the
  top of which she saw defendant's vehicle facing her, stopped  alongside her
  lane of the road.  Plaintiff swerved to avoid defendant's vehicle and lost
  control,  entering the eastbound lane and colliding with Serro's vehicle. 
  Plaintiff sustained injuries.
	
       The jury found plaintiff slightly more negligent than defendant and
  consequently judgment was  entered for defendant.  See 12 V.S.A. § 1036
  (plaintiff cannot recover under comparative  negligence statute when
  plaintiff's negligence exceeds defendant's negligence).  This appeal 
  followed. 


                                     I.


       Plaintiff first contends that the court improperly excluded
  plaintiff's testimony as to her  measurement of the distance between the
  mailbox and the edge of the paved highway which  contradicted defendant's
  testimony.  The evidence differed on the factual issue of where 
  defendant's vehicle was located when plaintiff took evasive action.  The
  state trooper who   investigated the accident testified that there was
  sufficient room between the mailbox and the  edge of the road for a vehicle
  the size of defendant's to stop clear of the lane of travel.   Defendant
  testified that on the day of the accident, the mailbox was located eight
  feet from the  edge of the highway pavement and his vehicle was only five
  and one-half to six feet wide.   Defendant maintained that there was ample
  room for his vehicle to be completely removed from  the pavement or nearly
  so at the time of the accident.  

       During her testimony, plaintiff stated that she had measured the
  distance from the mailbox to the  edge of the pavement.  Defense counsel
  objected to plaintiff's testimony, noting that there was no  disclosure
  during discovery of a witness who had investigated the accident

 

  other than the state trooper.  Plaintiff proposed to testify that, based
  upon her measurement, the  mailbox was less than three feet from the edge
  of the highway pavement, directly contradicting  defendant's testimony of
  eight feet.  The court sustained the objection.

       Plaintiff asserts that the court abused its discretion and unfairly
  prejudiced plaintiff's case when it  excluded the testimony as a discovery
  sanction. We find no abuse of discretion.
	
       At trial, when defense counsel objected to plaintiff testifying about
  her measurement, plaintiff's  counsel offered to prove "that there's less
  than three feet between where a car would pull up and  the edge of the
  pavement," noting that plaintiff's testimony directly contradicted
  defendant's  testimony that the mailbox was six to eight feet from the edge
  of the road.  The court stated that  "You've got to disclose [during
  discovery] that there was some other measurements in the  investigation." 
  At oral argument, plaintiff's counsel disclosed that plaintiff measured the
  spot  after defendant testified at trial and thus plaintiff's testimony was
  offered in rebuttal.  The timing  of plaintiff's measurement, however, was
  not mentioned at the time of the ruling at trial.    

       It was within the trial court's discretion to exclude the testimony
  assuming, as it did, that the  evidence was acquired early on in the
  preparation for trial and not disclosed in discovery. Thus,  the court's
  ruling was not error.

                                     II.

    
       After instructing the jury on the legal standard of care, plaintiff's
  counsel objected, arguing that  the jury was not instructed that, if it
  found a violation of the safety statute by either party, it  created a
  rebuttable presumption of negligence. 

       Proof of the violation of a safety statute creates a prima facie case
  of negligence.  Bacon v.  Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907
  (1996).  A prima facie case of negligence raises  a rebuttable presumption
  of negligence and shifts the burden of production to the party against 
  whom the presumption operates.  See id.  When the party produces evidence
  that fairly and  reasonably tends to support a finding that the presumed
  fact does not exist, the presumption  disappears.  See id.

       Here, defendant's testimony was sufficient to show that there was
  adequate space for his vehicle  to be off the road and out of plaintiff's
  lane as she approached.  Defendant met his burden of  production and the
  court was correct in instructing the jury without making reference to the 
  presumption.  See V.R.E. 301(c)(3) (court must not instruct jury on
  presumption of negligence  when defendant has met his burden of
  production); Favreau v. Miller, 156 Vt. 222, 233, 591 A.2d 68, 75 (1991).


                                    III.

       Finally, plaintiff claims that the trial court failed to instruct the
  jury on the safety rules pertaining  to stopping on the wrong side of the
  highway when the jury raised the question during  deliberations.  The jury
  sent this written question to the court: "[W]hat law if any says about a 
  vehicle on the wrong side of the road facing traffic either partially in
  the road or on the  shoulder?"  In response, the court read several safety
  statutes to the jury for their consideration,  including: "[N]o person
  shall stop, park or leave standing any vehicle, whether attended or 
  unattended, upon the paved or main-traveled part of the highway," quoting
  from 23 V.S.A.  § 1101(a).  The court then stated that "[t]here is no
  safety rule or guide concerning the stopping 

 

  on the wrong side facing or stopping on the side of the road facing
  traffic, but you in your own  determination might determine what a
  reasonably prudent person would do under such  circumstances."  Plaintiff
  objected to the court's instruction that there was no safety rule 
  prohibiting someone from stopping on the wrong side of the road.


       Plaintiff's claim of error is without merit.  The court reiterated to
  the jury the relevant safety  statutes and correctly stated that there was
  no statute directly on point pertaining to a vehicle  stopped on the wrong
  side of the road.  We conclude that the charge, when read in its entirety, 
  accurately communicated the pertinent legal principles to the jury and was
  not misleading. 

       Affirmed. 

	
------------------------------------------------------------------------------
                                 Dissenting


       DOOLEY, J., dissenting.   I outlined my views on our treatment of
  safety statutes in  negligence cases in a concurrence in Marzec-Gerrior v.
  D.C.P. Indus., Inc., 164 Vt. 569, 572,  674 A.2d 1248, 1250 (1995), a case
  in which the appealing party did not object to the relevant  parts of the
  jury charge.  This case reinforces my view that "any alternative to the
  current  approach is better."  Id. at 576, 674 A.2d  at 1252.  The heart of
  plaintiff's theory of the case is  that defendant violated a statutory rule
  of the road, and this violation was negligence that caused  the accident
  and plaintiff's injury.  Plaintiff objected to the portion of the charge
  regarding the  effect of a violation of a safety statute, and sought a
  credible alternative.  I would hold that the  court should have charged
  plaintiff's alternative and dissent from the decision to affirm the 
  judgment entered on defendant's jury verdict.

       In relevant part, the court first instructed the jury as follows:

          The legal standard of care required of motorists on the public 
          highway is unvarying at all times; that of a reasonably prudent 
          person. That's the standard.  But experience has led the courts to 
          adopt and the legislature to enact certain safety rules of diligence 
          which are intended to standardize the rights and duties of users of 
          the highways.  But these rules and statutes are not absolute in all 
          circumstances, they are merely guides to the main issue of whether 
          or not a motor vehicle operator's conduct met the standard of a 
          reasonably prudent person.  But you can understand and apply 
          these safety rules as you consider they are appropriate under the 
          circumstances in your determination of whether or not the 
          person's conduct has met the standard of the reasonably prudent 
          person.


  After describing the applicable statutory rules of the road, the court then
  returned to their effect  and added:


          Now, I repeat: these safety rules are for your guidance.  You are 
          not bound to consider them.  They are not binding upon you.  You 
          may give them weight in considering whether or not an operator's 
          conduct met the standard of care of a reasonably prudent person.

 

  Not surprisingly, plaintiff's counsel, whose case depended upon persuading
  the jury that  defendant violated one of the safety statutes, found this
  use of the safety statutes to be  inadequate.  In objecting to the jury
  instructions, he said:

		
          The safety statute was given a little bit different than what was 
          expected.  My understanding of the law is, it creates a rebuttable 
          presumption, but it is binding on the jury if you violate a safety 
          statute.  I think that your charge said that they are not binding.


  The court refused to change its language, but the jury did not find the
  court's explanation  sufficient.  After deliberating for a period, the jury
  returned with questions:


          One.  What law if any says about a vehicle on the wrong side of 
          the road facing traffic either partially in the road or on the 
          shoulder?  Two.  What law if any says about cautionary lights, 
          e.g., flashers or rotating lights such as on a plow?


  Plaintiff's counsel again asked the court to respond that violation of a
  safety statute creates a  rebuttable presumption of negligence.  The court
  refused and reread the earlier instructions  adding only that no safety
  statute covered either of the situations outlined in the questions.

       As plaintiff points out, the most serious deficiency in the charge is
  that the jury is  instructed that it may simply ignore the safety statute -
  "you are not bound to consider them" -  for the wrong reason or no reason
  at all.  See id. at 575, 674 A.2d  at 1252.  It is one thing to  ignore
  evidence which the jury may find is not significant; it is quite another to
  ignore a statute  that defines how drivers and others must conduct
  themselves on our public highways.

       I expressed my view in Marzec-Gerrior that administering a bursting
  bubble presumption  so that the jury is told nothing about the safety
  statute makes the safety statute meaningless in  civil cases and is
  inconsistent with our precedents.  I do not believe that creating a
  bursting  bubble presumption is consistent with the proper effect of the
  violation of a safety statute in a  civil negligence action as explained in
  Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 594  (1928). Indeed, I
  question whether it makes sense to apply presumption jurisprudence to a 
  determination of negligence, because the presumed "fact" is actually a
  conclusion of law or a  mixed conclusion of fact and law.  See 21 C. Wright
  & K. Graham, Federal Practice and  Procedure: Evidence § 5134, at 657
  (1977).  

       In any event, I note that virtually every commentator and most
  jurisdictions agree that  some instruction to the jury on a presumption is
  necessary.  See id. § 5127, at 615; 2  McCormick on Evidence § 344, at 467
  (4th ed. 1992).  Our precedents require that the jury be  told of the
  presence of an applicable safety statute.  See Campbell v. Beede, 124 Vt.
  434, 438-39, 207 A.2d 236, 240-41 (1965).  The issue is what the jury
  should be told.

       Every alternative instruction to the jury has strengths and
  weaknesses.  See 2 McCormick  on Evidence § 344, at 467-69.  Although I
  favor a negligence per se rule as adopted by the  Restatement (Second) of
  Torts, see Marzec-Gerrior, 164 Vt. at 575-76, 674 A.2d  at 1252, the 
  alternative sought by plaintiff in this case is far better than what was
  charged, or what we have  typically affirmed.  A number of states have
  adopted plaintiff's alternative.  See Thornton v.  Pender, 377 N.E.2d 613,
  621 (Ind. 1978); Zeni v. Anderson, 243 N.W.2d 270, 276-79 (Mich.  1976);
  Waugh v. Traxler, 412 S.E.2d 756, 759-60 (W. Va. 1991).  It is exactly the
  alternative  required by Landry v. Hubert, 101 Vt. at 113, 141 A.  at 594.

 

       Whether or not we adopt a rule that explains the safety statute to the
  jury as a rebuttable  presumption, we should not affirm the charge given in
  this case.  Plaintiff had two objections to  the charge - it didn't explain
  the rebuttable presumption, and it allowed the jury to ignore the  rules of
  the road for any reason.  The latter objection was clearly correct. 
  Especially given the  nature of the state policy interests in uniform rules
  of the road, we cannot support an instruction  that allows the jury to
  ignore automotive safety statutes for no reason at all.  Such an
  instruction  allows the jury to determine the applicable law, or to ignore
  the actual law and apply its own  view of what the law should be.  In
  either case, the jury is acting outside its proper role as the 
  fact-finder, applying the facts to the law given to it by the judge.  We
  should at least insist that  the charge state that violation of a safety
  statute is evidence of negligence, as required by Gilbert  v. Churchill,
  127 Vt. 457, 461, 252 A.2d 528, 530 (1969).

       This case represents an important opportunity to pull our law on
  safety statutes in  negligence cases from the chaos that now surrounds it. 
  I dissent from the continuing  endorsement of that chaos.


       JOHNSON, J., dissenting.  I dissent for the reason that we should not
  affirm the jury  charge in this case.  Plaintiff's objections were
  well-taken in that the charge did not explain that  proof of the violation
  of a safety statute creates a prima facie case of negligence, which in turn 
  creates a rebuttable presumption of negligence and shifts the burden of
  production to the party  against whom the presumption operates.  See Bacon
  v. Lacelles, 165 Vt. 213, 222, 678 A.2d 902, 907 (1996).  Moreover, as
  Justice Dooley's dissent demonstrates, the court invited the jury  to
  ignore the safety statutes.  Either basis provides grounds for reversing
  the verdict.


		
Dissenting:				BY THE COURT:


___________________________________     __________________________________     
John A. Dooley, Associate Justice	Jeffrey L. Amestoy, Chief Justice


____________________________________    __________________________________
Denise R. Johnson, Associate Justice	James L. Morse, Associate Justice

					
                                        __________________________________         
					Marilyn S. Skoglund, Associate Justice