Simpson v. Rood

Simpson v. Rood (2004-053); 178 Vt. 474; 872 A.2d 306

2005 VT 21

[Filed 02-Feb-2005]

                                 ENTRY ORDER

                                 2005 VT 21

                      SUPREME COURT DOCKET NO. 2004-053

                             OCTOBER TERM, 2004

  Steven & Mary Ann Simpson	       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Orange Superior Court
                                       }	
  Rodney Rood, Sr.	               }
                                       }	DOCKET NO. 145-7-00 Oecv

                                                Trial Judge: Brian L. Burgess

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

       ¶  1.  Plaintiffs appeal from a defense verdict in this negligence
  action arising out of a head-on collision in January 2000.  This is
  plaintiffs' second appeal in the same matter.  See Simpson v. Rood, 2003 VT
  39, 175 Vt. 546, 830 A.2d 4.  In this appeal, plaintiffs challenge the trial
  court's instructions to the jury.  Plaintiffs invite the Court to adopt the
  negligence-per-se standard in cases involving a violation of motor vehicle
  safety laws.  We decline the invitation because plaintiffs have not
  demonstrated that a different instruction would have affected the result. 
  Therefore, we affirm.

       ¶  2.  The facts are essentially undisputed.  On the morning  of
  January 29, 2000, Steven Simpson was driving his car east on Route 25 when
  the car in front of him swerved suddenly to the left.  The sudden swerve
  revealed that a pick up truck was approaching Simpson in his lane.  To
  avoid a collision, Simpson quickly applied his brakes.  Nevertheless,
  Simpson's car hit the pick up truck head on.  

       ¶  3.  Simpson and his wife sued defendant Rodney Rood, Sr., the
  driver of the pick up truck, for Stevens's injuries, loss of consortium,
  and other damages caused by the accident.  Defendant claimed that he was
  not negligent nor responsible for plaintiffs' damages because he had a
  sudden and unforeseeable episode of cough syncope that caused him to
  blackout while driving.  Whether defendant suffered from cough syncope or
  simply fell asleep while driving was the dispositive factual question for
  the jury.
   
       ¶  4.  The jury returned a verdict for defendant.  On appeal from
  that verdict, plaintiffs argue that the court's jury instructions were
  wrong.  They assert that the court should have told the jury that if it
  finds defendant violated certain rules of the road, it must find him
  negligent, unless the jury also finds that defendant's violation was
  excused.  Defendant argues that plaintiffs failed to preserve this issue
  and the Court need not reach it.  We decline to address the preservation
  question because we conclude that plaintiffs have not shown prejudice
  flowing from the court's instructions.

       ¶  5.  Reversing a jury verdict based on allegedly faulty jury
  instructions is warranted where the party claiming error establishes that
  the instructions were erroneous and prejudicial.  Mobbs v. Central Vt. Ry.,
  155 Vt. 210, 218, 583 A.2d 566, 571 (1990).  Here, plaintiffs claim the
  court should have given their instruction on negligence per se.  Negligence
  per se requires a jury to find a defendant negligent if the plaintiff
  proves that the defendant violated a relevant safety statute.  Restatement
  (Second) of Torts § 288B cmt. a. (1965).  In this case, the safety statutes
  at issue required defendant to drive his vehicle in the right half of the
  roadway, 23 V.S.A. § 1031, and to exercise ordinary care while doing so,
  id. § 1091(a).  There was no dispute in this case that defendant crossed
  the center line of the road and therefore violated § 1031 by not staying to
  the right.  The contested issue at trial was the cause for the violations,
  and, ultimately the collision.  

       ¶  6.  The court instructed the jury that the motor vehicle laws it
  cited were relevant to the issue of defendant's duty and whether he
  breached that duty.  The court told the jury that if it finds that
  plaintiffs have "failed to prove negligence on the part of the defendant,
  then [its] deliberations are concluded."  The entire jury charge reflected
  current Vermont law on negligence cases involving safety statutes.  See,
  e.g., Brown v. Roadway Express, Inc., 169 Vt. 633, 633-34, 740 A.2d 352,
  354 (1999) (mem.) (explaining that rebuttable presumption created by proof
  that defendant violated a safety statute disappears if defendant produces
  evidence that violation was justified or excused or that defendant
  exercised due care under the circumstances).  

       ¶  7.  The jury heard conflicting evidence on the cause for
  defendant's unconsciousness. To support his theory of the case, defendant
  presented expert testimony from his cardiologist, Dr. Nathaniel Niles.  Dr.
  Niles testified that cough syncope is a brief loss of consciousness after a
  sudden and prolonged bout of coughing.  Cough syncope results from a
  combination of three factors: low blood pressure, decreased heart rate, and
  low blood flow to the brain.  Although defendant suffers from angina, a
  condition for which he still receives treatment from Dr. Niles, Dr. Niles
  testified that there was no medical reason for defendant to have known that
  he was at risk of experiencing cough syncope.  

       ¶  8.  Plaintiffs also presented expert testimony from a physician. 
  Plaintiffs' expert opined that it was likely that defendant fell asleep at
  the wheel.   The expert noted that cough syncope is so rare that he has
  never seen a case of it in the forty-one years he has practiced medicine. 
  The expert testified that cough syncope cannot be diagnosed with medical
  certainty, and that defendant did not describe the kind of severe coughing
  fit that leads to syncope.  
        
       ¶  9.     Plaintiffs do not explain how the jury could have
  reached a different conclusion, in light of the conflicting medical
  evidence, had the trial court issued plaintiffs' proffered instruction on
  negligence per se.  By rendering a defense verdict, the jury apparently
  rejected plaintiffs' theory that defendant fell asleep and believed
  defendant's explanation for what happened.  Under plaintiffs' proposed
  instruction, even if a motorist violates a safety statute, the motorist may
  be excused from liability if the law recognizes the motorist's excuse. 
  Restatement (Second) of Torts § 288A.  A sudden and unforeseen medical
  event that causes a loss of consciousness is considered such an excuse. 
  See, e.g., Roman v. Estate of Gobbo, 2003 Ohio 3655, ¶¶ 16, 21, 791 N.E.2d 422 (affirming sudden medical emergency excuse in negligence per se
  cases); Hoppe v. Hughes, 577 S.W.2d 773, 776, 778 (Tex. Civ. App. 1979)
  (reversing jury verdict in negligence per se case where defendant did not
  present sufficient evidence that he suffered a heart attack before crossing
  center line and colliding with another vehicle).  Thus, the jury's verdict
  here may be viewed as a finding that defendant was negligent, but that his
  negligence was excused because of his medical emergency.  To the extent
  that the court erred by not giving plaintiffs' proposed instruction, the
  error was not prejudicial because, given the evidence, it would not have
  affected the verdict. 

       Affirmed.




                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

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