Bazzano v. Killington Country Village, Inc.

Bazzano v. Killington Country Village, Inc. (2002-234); 175 Vt. 534; 830 A.2d 24

2003 VT 46

[Filed 14-May-2003]

                                 ENTRY ORDER

                                 2003 VT 46

                      SUPREME COURT DOCKET NO. 2002-234

                              MARCH TERM, 2003

  Jill Bazzano	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windsor Superior Court
                                       }	
  Killington Country Village, Inc.     }
                                       }	DOCKET NO. 91-2-98 Wrcv

                                                Trial Judge: Alan W. Cook

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


       ¶  1.  Plaintiff in this personal injury action appeals from a
  judgment based on a jury verdict in favor of defendant.  Plaintiff contends
  the court erred in: 1) allowing testimony concerning the absence of prior
  accidents; 2) admitting a physician's report into evidence; 3) instructing
  the jury on plaintiff's burden of proof and comparative negligence; and 4)
  instructing on the effect of a safety statute violation.  We affirm.

       ¶  2.  In February 1996, plaintiff Jill Bazzano and a friend went to
  the Back Behind Saloon Restaurant in the town of Bridgewater after a day of
  skiing in Killington.  Plaintiff and her friend were seated in the back of
  the restaurant, in the "caboose" section.  Plaintiff testified that she
  lost her footing as she descended the caboose's stairway on the way to the
  restroom.  Because there was no handrail, she claimed that she reached up
  for the support pole overhead and wrenched her right shoulder, causing
  immediate and severe pain.  After returning to her table and completing her
  meal, plaintiff left the restaurant and returned home to Connecticut.  The
  next day, plaintiff went to a hospital emergency room and was diagnosed
  with a torn rotator cuff.  She subsequently underwent two surgeries on her
  shoulder, followed by two intense courses of physical therapy.  Plaintiff
  filed a negligence action against defendant Killington Country Village,
  Inc. d/b/a The Back Behind Saloon Restaurant.  After a four day trial, the
  jury returned a special verdict in favor of defendant.  The jury found
  plaintiff fifty-one percent negligent and defendant forty-nine percent
  negligent, resulting in no award of damages to plaintiff.  12 V.S.A. §
  1036.  This appeal followed.
   
       ¶  3.  Plaintiff first contends the court erred in allowing
  defendant to present testimony that no prior accidents had occurred on the
  stairs in order to prove the absence of a defect under Mobbs v. Central
  Vermont Railway, Inc., 155 Vt. 210, 583 A.2d 566 (1990).  In Mobbs, we held
  that "[g]enerally, when the party seeking admission of the evidence can
  show substantial similarity of conditions, evidence of no prior accidents
  is admissible to show '(1) absence of the defect or condition alleged, (2)
  the lack of a causal relationship between the injury and the defect or
  condition charged, (3) the nonexistence of an unduly dangerous situation,
  or (4) want of knowledge (or of grounds to realize) the danger.' " Id. at
  226-27, 583 A.2d  at 575.

       ¶  4.  Here, the restaurant's prior owner of  twenty-five years and
  two long?time employees all testified that they had no knowledge of anyone
  falling on the stairs prior to the plaintiff's accident. Plaintiff argues
  that the testimony was unreliable to establish the absence of prior
  accidents, and that Mobbs requires a documented safety record for such
  evidence to be admissible.  Although Mobbs involved railroad safety
  records, nothing in the opinion requires documented records to the
  exclusion of the testimony of an owner or employee based upon his or her
  recollection.  Indeed, Mobbs relied upon Erickson v. Walgreen Drug Co., 232 P.2d 210 (Utah 1951), in which the Utah Supreme Court concluded that the
  trial court erred in excluding "testimony that approximately 4,000 to 5,000
  persons entered the appellant's store every day but that during the fifteen
  year period prior to the respondent's fall, the management had never
  received a single complaint or report about anyone slipping."  Id. at 214;
  see also Evans v. State, 18 P.3d 227, 233 (Idaho Ct. App. 2001) (relying on
  Mobbs to uphold admissibility of a swimming facility manager's testimony
  that he could not recall more than four prior accidents resulting from the
  10-meter diving platform).

       ¶  5.  The reliability and relevance of the testimony was for trial
  the court's determination in the first instance.  "Trial courts have broad
  discretion in ruling on the relevance and admissibility of evidence,
  reversible only for abuse of that discretion."  Southface Condo. Owners
  Ass'n, Inc. v. Southface Condo. Ass'n,  Inc., 169 Vt. 243, 249, 733 A.2d 55, 60 (1999).  We cannot conclude that the trial court abused its
  discretion in admitting the evidence.  There was testimony that the stairs
  remained in the same condition since 1975.   The former owner estimated
  that he had walked up and down the stairs thousands of times and had never
  fallen or heard of any prior accidents.  The former employees' testimony
  was to the same effect.  Accordingly, we discern no abuse of discretion in
  admitting the testimony.
        
       ¶  6.  Plaintiff also contends the testimony should have been
  excluded because it was irrelevant, confusing, and prejudicial.  The trial
  court correctly ruled, however, that the absence of prior accidents was
  relevant and admissible to show an "absence of the defect or condition
  alleged."  Mobbs, 155 Vt. at 226-7, 583 A.2d  at 575.  Plaintiff argues that
  the evidence was unduly confusing because it suggested that the defendant's
  liability was negated by the lack of notice of a dangerous condition.  This
  argument rests on plaintiff's contention that the absence of a railing
  violated a safety code provision, which established negligence per se. The
  premise of the argument is flawed, however, as we have held that a
  violation of a safety statute does not demonstrate negligence per se. 
  "Even if we could agree that plaintiffs showed that defendants violated the
  statutes, we cannot agree that this violation is negligence per se." 
  Dalmer v. State, ___ Vt. ___, ___, 811 A.2d 1214, 1221 (2002).  Rather,
  "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).  Finally, plaintiff argues that the testimony was unduly
  prejudicial, warranting reversal. "The court has broad discretion in
  determining whether the probative value of relevant evidence outweighs any
  prejudicial effect."  Ulm v. Ford Motor Co., 170 Vt. 281, 290, 750 A.2d 981, 989 (2000).  Plaintiff has not carried the heavy burden of showing
  such an abuse of discretion.  

       ¶  7.  Plaintiff also contends the court erred in admitting a
  medical report by Dr. Beebe, an orthopedic surgeon who examined plaintiff
  sixteen days prior to the accident.  The report indicated that plaintiff
  had been referred to him by her physician for knee pain, and stated that
  plaintiff had complained of knee pain and difficulty climbing and
  descending stairs.  The court initially admitted the evidence as a prior
  inconsistent statement.  Plaintiff contends the report was inadmissible
  hearsay and ultimately was not limited to its admission as an inconsistent
  statement.  "The trial court is accorded wide latitude in making such
  evidentiary rulings, and we will not disturb its discretion  absent a
  showing of abuse of discretion."  Mears v. Colvin, 171 Vt. 655, 658, 768 A.2d 1264, 1268 (2000) (mem.).  Plaintiff has not demonstrated that the
  court abused its discretion in admitting Dr. Beebe's report, which was
  admissible not only for the limited purpose determined by the court, but
  also for its truth as a hearsay exception under V.R.E. 803(4) (statements
  for purposes of medical diagnosis or treatment).  Therefore, we discern no
  error.

       ¶  8.  Plaintiff next contends the court erroneously and improperly
  overemphasized plaintiff's burden of proof in its instructions to the jury
  by referring to the burden on at least seven different occasions, and in
  detail.  "A party appealing a jury charge has the burden of establishing
  that the charge was both clearly erroneous and prejudicial."  Knapp v.
  State, 168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.).  Here, plaintiff
  has not demonstrated how the court, in referring to plaintiff's burden of
  proof on multiple occasions, was "both clearly erroneous and prejudicial."
  Id.  No claim is made that the court misstated the burden, and a review of
  the charge as a whole reveals that its statement of the law was balanced,
  fair, and accurate. See id. (propriety of instructions must be determined
  by considering charge as a whole).  Accordingly, we discern no basis to
  disturb the judgment.

       ¶  9.  Plaintiff next contends that the court erred when it
  neglected to re-read the comparative negligence charge in response to a
  jury question and instead improperly engaged in a colloquy with the jury. 
  We review the court's response to the jury as a whole.  "The propriety of
  an instruction must be determined by considering the charge as a whole with
  an eye to its general content, and not piecemeal in isolated segments." 
  Id.   If a charge  "'as a whole breathes the true spirit and doctrine of
  the law and there is no fair ground to say that the jury has been misled,'"
  it ought to stand.  In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713, 718
  (1930) (quoting Fassett v. Town of Roxbury, 55 Vt. 552, 556 (1883)).  Here,
  the record discloses that during its deliberations the jury sent a question
  to the court, inquiring whether it could "award '0' damages if we find for
  partial negligence on both parties." Plaintiff cites one line from the
  court's lengthy response, asserting that it somehow implied the court's
  personal belief that defendant was not negligent.  Viewed in its entirety,
  however, the court's response to the jury clearly communicated the correct
  comparative negligence principles, and did not suggest any improper bias or
  preconceptions.  There was no error.  
        
       ¶  10.  Finally, plaintiff contends the court should have granted her
  motion for a directed verdict based on a finding of negligence per se, or
  instructed the jury that a violation of a safety statute was negligence per
  se.  As we noted earlier, plaintiff was not entitled to a finding of
  negligence per se, see Dalmer, ___ Vt. at ___, 811 A.2d  at 1221, and
  plaintiff failed to object to the court's instruction on violation of a
  safety statute before the verdict.  At the conclusion of its instructions,
  the court simply indicated that all prior objections would be preserved. 
  As we explained in Winey v. William E. Dailey, Inc., 161 Vt. 129, 138, 636 A.2d 744, 750 (1993), however, "we do not believe that a blanket reference
  made after the charge to arguments made before the charge, even if allowed
  by the trial court, complies with Civil Rule 51(b)."  See V.R.C.P. 51(b)
  ("No party may assign as error the giving or the failure to give an
  instruction unless that party objects thereto before the jury retires to
  consider its verdict."). Therefore, the claim was not preserved for review
  on appeal.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned