Brown v. Roadway Express, Inc.

Annotate this Case
Brown v. Roadway Express, Inc. (98-280); 169 Vt. 633; 740 A.2d 352

[Filed 24-Aug-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-280

                               MAY TERM, 1999

William Brown and	               }	APPEALED FROM:
Ramona Brown	                       }
     v.	                               }	Chittenden Superior Court
Roadway Express, Inc. and	       }
Michael D. Heyman	               }	DOCKET NO. S1143-96 CnC

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

       This is a negligence action arising from an accident in which a
  motorcycle driven by  William Brown collided with a tractor-trailer truck
  owned by Roadway Express and driven by  Michael D. Heyman. Defendants
  Roadway Express, Inc. and Michael D. Heyman appeal from a  judgment entered
  in the Chittenden Superior Court on a jury verdict awarding plaintiffs
  William  and Ramona Brown $1,078,334.15 in compensatory damages.  The
  issues on appeal involve the  court's determination that Heyman was
  negligent as a matter of law, the court's instructions to  the jury
  concerning punitive damages and certain comments made by plaintiffs'
  counsel during  closing argument.  We affirm the judgment.

       The relevant facts are largely undisputed.  On July 13, 1995, a
  tractor-trailer truck driven  by Heyman and owned by Roadway Express was
  proceeding northbound on Route 12 en route  from Northfield to Barre. 
  Heyman was an employee of Roadway Express, acting within the  scope of his
  employment.  The accident occurred in Berlin, just north of the point where
  Route  12 crosses beneath a railway overpass.  A sign in the northbound
  lane of Route 12 warns  motorists that the overpass is 13 feet, 2 inches
  above the ground.  The truck required a clearance  of 13 feet, 6 inches. 
  Heyman, aware that his truck could clear the overpass by traveling in the 
  southbound lane but not the northbound one, drove the truck across the
  double-yellow line of the  highway and into the southbound lane, passed
  under the overpass and struck head-on the  motorcycle driven by William
  Brown.  The motorcycle driver sustained injuries, and his brother,  a
  passenger, was killed in the accident.

       In their complaint, plaintiffs sought both compensatory and punitive
  damages from  defendants.  At the conclusion of the three-day trial that
  ultimately ensued, the court instructed  the jury that both Heyman and
  Roadway Express were negligent - the former because he failed  to use due
  care in the operation of his vehicle and the latter because Heyman was an
  employee  acting in the course of his employment.  Explicitly left for the
  jury to decide was whether  defendants' negligence proximately caused any
  damages to plaintiffs, whether contributory  negligence was involved, and
  whether plaintiffs were entitled to recover any punitive damages.  


  The jury found no contributory negligence but awarded plaintiffs
  compensatory damages only.   Of the $1,078,334.15 awarded by the jury on
  its special verdict form, $5,000 was attributed to  damage to the
  motorcycle, $15,274.15 to past medical expenses, $8,060 to lost earnings, 
  $50,000 to Ramona Brown's loss of consortium, and $1,000,000 to all other
  past and future  damages.

       Defendants first contend that the court erred when it instructed the
  jury that defendants  were negligent as a matter of law, leaving jurors to
  decide only the questions of causation,  damages and punitive damages.  We
  discern no error.

       Negligence is failure to exercise the care that the circumstances
  reasonably require or  justly demand.  See Weaver v. Brush, 166 Vt. 98,
  102, 689 A.2d 439, 442 (1996).  Proof of a  defendant's violation of a
  safety statute creates at least a rebuttable presumption of negligence, 
  which "shifts the burden of production to the party against whom the
  presumption operates."   Bacon v. Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907 (1996); see also Marzec-Gerrior v.  D.C.P. Indus., Inc., 164 Vt.
  569, 574-76, 674 A.2d 1248, 1252-52 (1996) (Dooley, J.,  concurring)
  (discussing flaws in rebuttable presumption rule and proposing negligence
  per se as  more logical approach to safety statute violations).  The
  presumption disappears when the party  with the burden of production meets
  it.  Id. at 222-23, 678 A.2d  at 907.  If that party fails to  offer
  evidence to show that the violation of the statute was justified or that
  the party exercised  due care despite the violation of the statute, the
  court must direct the jury to find the existence of  the presumed fact,
  that is, the negligence of the defendant.  See V.R.E. 301(c)(1); Duncan v. 
  Wescott, 142 Vt. 471, 474, 457 A.2d 277, 278 (1983) (where defendant fails
  to rebut  presumption of negligence, plaintiff proved negligence as matter
  of law).

       Heyman violated 23 V.S.A. ยง 1031(a), which provides that "[u]pon all
  roadways of  sufficient width a vehicle shall be driven upon the right half
  of the roadway."  Section 1031(a)(2)  contains exceptions, one of which
  applies "[w]hen an obstruction exists making it necessary to  drive to the
  left of the center of the highway."  Id. at (a)(2) (requiring such a driver
  to "yield the  right of way to all vehicles traveling in the proper
  direction upon the unobstructed portion of the  highway within such
  distance as to constitute an immediate hazard").  Defendants agree that the 
  truck was not upon the right half of the roadway at the time of the
  accident, but contend that the  exception applies, because an obstruction
  existed making it necessary to drive to the left of the  center of the

       In construing a statute, we look "to the reason and spirit of the law
  and its consequences  and effects to reach a fair and rational result."  In
  re Margaret Susan P., 10 Vt. L.W. 130, 133  (1999).  We enforce the plain,
  ordinary meaning of language used by the Legislature.  See  Brennan v. Town
  of Colchester, 10 Vt. L.W. 83, 83 (1999).  "Obstruction" in this context
  refers  to a temporary condition that makes part of a roadway impassable to
  all vehicles, as distinct from  a fixed condition that makes certain
  vehicles (such as eighteen-wheel tractor-trailers) unable to  use the
  proper lane.  A bridge does not become an "obstruction" simply because the
  operator is  driving a truck too large to fit under it.  Therefore, the
  exception does not apply in this case, and  defendant's violation of the
  statute raises a rebuttable presumption 


  of negligence.

       The evidence defendants proffered to rebut the presumption related to
  the reasonableness  of Heyman's actions once he decided to proceed under
  the railroad overpass.  Even if a  reasonable jury could conclude that
  Heyman acted with the highest degree of care in  implementing his decision,
  what remains unrebutted is the negligence of his decision to travel the 
  route and to cross into plaintiff's lane of travel to proceed under the
  overpass.  Because the  defendants failed to rebut the presumption of
  negligence arising from the violation of the statute,  the trial court
  properly determined that Heyman was negligent as a matter of law.  There
  was no  error in reaching that decision independently, without a motion
  from plaintiffs.  The court was  required to apply the safety statute and
  V.R.E. 301(c), and charge the jury on the applicable law.

       Roadway Express claims that the trial court erred by instructing the
  jury that it could  award  punitive damages.  The jury awarded only
  compensatory damages, but Roadway Express  maintains that the error was not
  harmless because the ruling allowed the jury to hear evidence  concerning
  its substantial net worth - evidence that was not relevant to the question
  of  compensatory damages - and also opened the door to a closing argument
  on plaintiff's behalf  that contrasted him, a native Vermonter of modest
  means, with Roadway Express, a large, out-of-state corporation.

       Two well-established principles are determinative.  The first is that
  "a judgment will not  be reversed for an error that, by the verdict, is
  rendered immaterial."  Parizo v. Wilson, 101 Vt.  514, 518, 144 A. 856, 858
  (1929) (so holding when court "permitted counsel for plaintiff to  argue
  the subject of exemplary damages to jury," which awarded only compensatory
  damages).   The second is that "'[t]here can be no assumption under our
  system of jurisprudence that the jury  will disregard the instructions of
  the trial court.'"  State v. Shaw, 149 Vt. 275, 279, 542 A.2d 1106, 1108
  (1987) (quoting Lewis v. Gagne, 123 Vt. 217, 219, 185 A.2d 468, 470
  (1962)).   Particularly in an instance such as this one, where the jury
  returned a special verdict form that  suggests a careful assessment of the
  various damages claims, we have no basis for concluding  that these jurors
  ignored the court's instructions on compensatory damages and considered 
  evidence or argument offered to support plaintiffs' claim for punitive
  damages.  In so holding,  we express no view as to the propriety of the
  challenged instruction.  The error, if any, was  harmless.

       Finally, Roadway Express contends that certain statements made by
  plaintiffs' counsel in  opening statement and closing argument merit
  reversal regardless of whether the jury was  properly instructed.  What
  Roadway Express finds objectionable are the references to plaintiff  and
  his family as blue-collar Vermonters of modest means, as compared to
  Roadway Express as  an out-of-state company with a net worth of
  approximately $240 million.  Roadway Express  points out, in particular,
  that in urging the jury to award a "civil fine" of two million dollars, 
  plaintiffs' counsel compared imposing a ten thousand dollar penalty against
  the company to  paying a twenty dollar traffic ticket.   


       Roadway Express relies on Pappas v. Middle Earth Condominium
  Association, 963 F.2d 534 (2d Cir. 1992).  Pappas was a premises liability
  case involving a ski condominium; the  Second Circuit Court of Appeals
  vacated the judgment entered in favor of the Vermont  defendants because
  their counsel had appealed in closing argument to perceived in-state
  hostility  toward out-of-state plaintiffs who had come to Vermont to ski. 
  See id. at 539 (noting that  "appeals to the regional bias of a jury are
  completely out of place in a federal courtroom"); but  see Greenway v.
  Buffalo Hilton Hotel, 143 F.3d 47, 51 (2d Cir. 1998) (noting that claims of 
  improper appeals to juror bias by counsel must be evaluated in "context of
  the entire trial" and  standard jury instruction that arguments of counsel
  are not evidence).

       We agree that appeals to regional bias are inconsistent with notions
  of impartial justice, but  we have also been hesitant in the past to
  overturn a jury verdict based on the arguments of  counsel.  See, e.g.,
  Debus v. Grand Union Stores of Vt., 159 Vt. 537, 544, 621 A.2d 1288,  1293
  (1993) (refusing to vacate judgment where defendant made no showing of
  prejudicial effect  to opposing counsel's suggestion that defendant merited
  different treatment because it was  corporation).  Moreover, of particular
  importance in Pappas was the absence of a curative  instruction to the
  jury.  See Pappas, 963 F.2d  at 540 (condemning trial court's "express 
  approval" of improper argument).  Here, in contrast, the trial court
  offered to give a curative  instruction that the case was "not a matter of
  us Vermonters against some out-of-state  corporation," but counsel for
  Roadway Express rejected it as likely to "do more harm than  good." 
  Putting aside the question of whether Roadway Express waived the issue by
  taking such  a position, we conclude that the trial court did not abuse its
  discretion in refusing to give a more  strongly-worded admonition to the
  jury.  See Debus, 159 Vt. at 545, 621 A.2d  at 1293 (noting  that trial
  court has discretion in deciding whether curative instructions are

                                       BY THE COURT:

	                               Jeffrey L. Amestoy, Chief Justice

	                               John A. Dooley, Associate Justice

	                               James L. Morse, Associate Justice

	                               Denise R. Johnson, Associate Justice

	                               Marilyn S. Skoglund, Associate Justice