Mears v. Colvin

Mears v. Colvin (99-331); 171 Vt. 655; 768 A.2d 1264 

[Filed 15-Dec-2000]
[Motion for Reargument Denied 10-Jan-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 1999-331

                            SEPTEMBER TERM, 2000



Shirley Mears, as Administratrix	}	APPEALED FROM:
of the Estate of Charles G. Mears	}
     	                                }	Bennington Superior Court
v.	                                }	
                                        }
William B. Colvin and Edwin Andrew 	}	DOCKET NO. 316-10-97 BnCV
Colvin, as Co-Trustees of the Edwin 	}
A. Colvin Trust, and Edwin Adolf        }       Trial Judge: John P. 
Colvin, individually                    }                    Morrissey (Ret.) 
  							     Specially Assigned 


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


       Plaintiff Shirley Mears, on behalf of the estate of Charles Mears,
  appeals from a judgment  based on a jury verdict in favor of defendants,
  the owners of an apartment building in which   decedent perished in a fire.
  Among other claims, plaintiff contends the trial court erred in admitting 
  unfairly prejudicial evidence concerning plaintiff's alleged lesbian
  affair, and the out-of-wedlock  teen-age pregnancies of decedent's
  daughters.  We agree and reverse.

       This case arose out of an early-morning fire in a three-unit apartment
  building in Shaftsbury.   Decedent lived in a second-floor unit of the
  building.  Although it appeared from the evidence that   decedent was awake
  and alerted to the fire, his badly burned body was found near a second
  floor  window, clothed in a T-shirt, sweat shirt, and sweat pants.  Medical
  evidence established that he had  died of smoke inhalation and carbon
  monoxide poisoning.  All of the other tenants managed to  escape.

       Plaintiff's negligence action was premised on two theories.  First,
  plaintiff argued that the  absence of a smoke alarm had critically reduced
  the time available to decedent to flee before being  engulfed in smoke and
  flames. There was evidence that no alarm had sounded, and plaintiff alleged 
  that this was caused by defendants' failure to install hard-wired smoke
  detectors, in violation of a fire  code provision.  Plaintiff also argued
  at trial that defendants had failed to provide adequate exits  from
  decedent's apartment, contributing to his inability to escape.
  
       Defendants countered with evidence that decedent's apartment had
  several adequate avenues of  escape, and that notwithstanding any possible
  code violation, decedent had been alerted to the fire,  indeed he was heard
  by a witness who later fled the building. Defendants theorized that
  decedent had  squandered his opportunity to get to safety by stopping to
  dress or to save possessions, and that he 

 

  may have been lethargic or exercised poor judgment because of a number of
  prescribed medications. 
 
       Defendants introduced extensive evidence, over objection, to rebut
  plaintiff's claim that   decedent's loss had deprived his next of kin --
  including his wife (plaintiff),  four adult daughters and  one minor child
  -- of a close and loving relationship with decedent.  That evidence
  included  testimony that plaintiff had separated from decedent and was
  involved in a lesbian relationship.   Plaintiff had filed a pre-trial
  motion in limine to exclude reference to the alleged affair, as well as 
  other evidence relating to decedent's alleged suicide attempts and
  prescribed medications.  The court  excluded reference to these matters
  during opening argument, warned counsel about their potential  prejudicial
  effect, but reserved ruling on their admissibility.

       In her testimony, plaintiff acknowledged that she had separated from
  decedent at the time of  his death, but denied that they planned to
  divorce. On cross-examination, she denied that she was  seeing anyone else
  during the separation. Defense counsel then asked for an chambers
  conference, in  which he announced his intention to inquire into
  plaintiff's alleged lesbian affair, arguing its  relevance to the quality
  of her relationship with decedent. The court sustained plaintiff's
  objection to  the proposed line of inquiry.
  	
       Later, however, during cross examination of Marie Boisvert, another 
  tenant in decedent's  building, defense counsel elicited testimony that
  decedent had confided in Boisvert that plaintiff was  divorcing him.
  Counsel then asked if decedent had told her why. An objection was
  interposed and,  contrary to the court's initial sustaining of the
  objection, overruled.  The witness then responded that  it was "because 
  [plaintiff] wanted to be with another woman." Counsel pursued the subject,
  asking,  "In fact she was having an affair with another woman; isn't that
  right?"  The witness responded,  "Right." Under further cross-examination,
  the witness also testified that decedent had told her about  the affair on
  more than one occasion,  that plaintiff was in fact living with the other
  woman, that the  other woman worked with decedent, and that the affair had 
  caused decedent to be hospitalized for a  major depression.
 
       Defense counsel returned to the subject on re-cross examination of the
  same witness, stating  that decedent had "discussed the fact that
  [plaintiff] was seeing another woman, as a matter of fact;  isn't that
  right?"  The witness responded that it was. Counsel then inquired: "He
  didn't say, 'I'm  suspicious about this,' or 'I'm blundering,' or anything
  like that, did he?" Plaintiff's counsel  interjected: "Your honor, I think
  this is really just too much."  The court thereupon admonished  counsel not
  to be argumentative, and counsel withdrew the question.  Plaintiff later
  returned to the  stand to deny that she was a homosexual, or that she had
  ever been involved in a homosexual  relationship.
    
       Decedent's four adult daughters, who ranged in age from twenty-six to
  thirty years old at the  time of trial, also testified that his death had
  deprived them of a loving, supportive father.  Defendants, in response,
  attempted to show on cross-examination that decedent had provided little 
  emotional or financial support to his children. Over objection, counsel
  adduced evidence that  decedent's daughter Wendy had dropped out of high
  school and been on welfare, his daughter 

 

  Brandy had separated from her husband, dropped out of high school, and had
  an out-of-wedlock  child when she was fifteen, his daughter Pammy had
  several children when she was a teen by several  different fathers, and his
  daughter Tammy had dropped out of high school and had an out-of-wedlock 
  child when she was eighteen.   	      

       Through additional testimony defendants adduced evidence that decedent
  had attempted  suicide on several occasions during the year before his
  death, and was taking a number of  medications, including anti-depressants.
  Defendants also confirmed through the testimony of  decedent's psychiatrist
  and treating physician that he was angry with his wife, and depressed 
  because  he believed she was involved in an extramarital affair.  

       The jury returned a special verdict, finding defendants forty percent
  negligent and decedent   sixty percent negligent. Accordingly, the court
  ordered that plaintiff take nothing, and entered  judgment for defendants.
  Plaintiff later moved for judgment as a matter of law or a new trial, 
  arguing, among other claims, that defendants' "repeated character
  assassination," including evidence  of plaintiff's alleged lesbian affair
  and the daughters' out-of-wedlock teen pregnancies,  had unfairly 
  prejudiced the jury. The court denied the motion, finding that the evidence
  was relevant and not  unduly prejudicial. This appeal followed.      

       Under the Wrongful Death Act, the spouse and next of kin of a person
  whose death is caused  by the wrongful act, neglect or default of another
  may recover "such damages as are just, with  reference to the pecuniary
  injuries resulting from such death."  14 V.S.A. § 1492(b).  This and other  
  courts have held that such injuries are not limited "to purely economic
  losses,"  Mobbs v. Central Vt.  Ry., 150 Vt. 311, 316, 553 A.2d 1092, 1095
  (1988), and may include recovery for  the loss of  companionship of a
  spouse or child, see Clymer v. Webster, 156 Vt. 614, 629-30, 596 A.2d 905,
  914  (1991), as well "compensation for lost intellectual, moral and
  physical training, or the loss of care,  nurture and protection."  Mobbs,
  150 Vt. at 316, 553 A.2d  at 1095.  In determining damages, the  factfinder
  may "consider the physical, emotional, and psychological relationship" of
  the parties, as  well as their "living arrangements . . . , the harmony of
  family relations, and the commonality of  interests and activities."
  Clymer, 156 Vt. at 630, 596 A.2d  at 914.

       The breadth of matters relevant to the issue of damages in a wrongful
  death action suggests  that evidence of an extramarital affair may be
  admissible to rebut or discredit a claim that the  decedent's death
  deprived the surviving spouse of a faithful, loving companion.  Indeed, a
  number of  courts have so held.  See, e.g., Morales v. Superior Court, 160 Cal. Rptr. 194, 197 (Cal. Ct. App.  1979); Countryman v. County of
  Winnebago, 481 N.E.2d 1255, 1259-60 (Ill. App. Ct. 1985);  Strelecki v.
  Firemans Ins. Co., 276 N.W.2d 794, 801 (Wis. 1979).  Evidence of the
  decedent's  relationship with his children - or lack thereof - is also, of
  course, highly relevant to a claim for loss  of companionship and society.
  See Mobbs, 150 Vt. at 316, 553 A.2d  at 1095; Cooper v. Chicago  Transit
  Auth., 505 N.E.2d 1239, 1246 (Ill. App. Ct. 1987).

       That some aspects of a decedent's family relations may be relevant and
  admissible in a  wrongful death action does not, however, mean that all
  aspects of family relations are relevant and 

 

  admissible. There is a line to be drawn when the potentially inflammatory
  nature of the information  exceeds its probative value.  See V.R.E. 403;
  Hayes v. Golub Corp., 166 Vt. 228, 236, 692 A.2d 377,  382 (1997).  A trial
  court's duty is to balance these factors, to ensure that the primary
  purpose or  effect of disputed evidence is to advance an issue in the case
  rather than "to appeal to a jury's  sympathies, 'arous[e] its sense of
  horror, provok[e] its instinct to punish, or trigge[r] other  mainsprings
  of human action [that] may cause a jury to base its decision on something
  other than the  established propositions in the case.'" State v. Bruyette,
  158 Vt. 21, 31, 604 A.2d 1270, 1274 (1992)  (quoting 1 J. Weinstein & M.
  Berger, Weinstein's Evidence § 403[03], at 403-33-39 (1991)).  

       The trial court is accorded wide latitude in making such evidentiary
  rulings, and we will not  disturb its decision absent a showing of abuse of
  discretion. See State v. Webster, 165 Vt. 54, 56,  675 A.2d 1330, 1332
  (1996).  

       To rebut plaintiff's claim for loss of companionship and society, the
  defense here adduced  substantial credible evidence through decedent's
  psychiatrist and treating physician that decedent  believed plaintiff had
  been involved in an extramarital affair.  As noted, such evidence has been 
  widely held to be relevant to claims for loss of companionship or loss of
  consortium.  The additional  evidence adduced by defendants concerning the
  homosexual nature of the extramarital affair was  another matter.  Such
  evidence added virtually nothing of probative value to the case. The only 
  effect, if not indeed the purpose, of defense counsel's repeated probing of
  the witness Boisvert  concerning the homosexual aspect of the alleged
  relationship was to appeal to homophobic  prejudices. See Everett v. Town
  of Bristol, 164 Vt. 638, 640, 674 A.2d 1275, 1277 (1996) (mem.)  (reversing
  judgment on ground that psychiatrist's disclosure of plaintiff's alleged
  lesbian relationship  created unfair prejudice). The trial court, moreover,
  overruled repeated efforts to exclude this aspect  of the alleged affair
  without any explanation or analysis of the relevant factors under V.R.E.
  403.   We conclude, accordingly, that the admission of such evidence was an
  abuse of discretion.

       As noted, the defense also adduced evidence that decedent had provided
  his four adult  daughters with minimal financial or emotional support. It
  was established through cross-examination, for example,  that decedent was
  not involved to any extent in their schooling or other  aspects of their
  lives, and the daughters for their part acknowledged that they had not
  visited  decedent when he was hospitalized for suicide and depression. 
  Such evidence was plainly relevant  to the quality of the father-daughter
  relationship and the claim for loss of companionship and society.  See
  Mobbs, 150 Vt. at 316, 553 A.2d  at 1095.

       The defense also focused intense scrutiny upon the daughters'
  difficult  teenage years, noting  their multiple pregnancies by different
  fathers, failure to complete high school, and marital problems.  Defendants
  claimed that the evidence was relevant to demonstrate decedent's failure to
  offer firm  guidance and "moral training" to his children. See id. 
  Whatever its relevance, however, the primary  effect of such evidence was
  to malign the moral standing of decedent's daughters.  It placed their 
  character, rather than their relationship with decedent, on trial.  As
  such, any probative value that  inhered in the evidence was substantially
  outweighed by its powerful tendency to create unfair  prejudice against
  plaintiff. See Gamble v. Hill, 156 S.E.2d 888, 894 (Va. 1967) (evidence in 

 

  wrongful death action that sixteen-year-old decedent was single mother and
  was pregnant when  killed was inadmissible to demonstrate rift between
  decedent and plaintiff-parents); Strelecki, 276 N.W.2d  at 801 (unwed
  daughter's pregnancy inadmissible in wrongful death action to demonstrate 
  decedent's poor relationship with family).  As the Virginia Supreme Court
  observed in Gamble, such  evidence has a strong tendency "to induce the
  jury to equate a just award to [plaintiffs] with the  [daughter's] moral
  delinquencies."  156 S.E.2d  at 894.  Accordingly, we hold that the trial
  court  abused its discretion in admitting such evidence.   

       The question remains whether the court's errors warrant reversal of
  the judgment and a new  trial.  We conclude that they do.  Although the
  erroneously admitted evidence went to damages, not  liability, the verdict
  in this regard was close, with forty percent of the fault attributed to
  defendants.  In these circumstances, we cannot be certain that the
  inadmissible evidence played no role in the  jury's decision.  See John A.
  Russell Corp. v. Bohlig, __ Vt. __, __, 739 A.2d 1212, 1221 (1999) 
  (reversal of judgment required where erroneous admission of character
  evidence "had substantial  potential for influencing the jury"). 
  Accordingly, we cannot conclude that the errors were harmless.   The
  judgment must, therefore, be reversed, and the case remanded for a new
  trial.    

       Reversed and remanded for a new trial.    	
    

                                       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