Voelker v. Frederick Business Properties
Annotate this Case
September 1995 Term
___________
No. 22865
___________
PAMELA J. VOELKER, ADMINISTRATRIX OF
THE ESTATE OF BLAKE ANDREW WEISENBURG,
Plaintiff Below, Appellant
v.
THE FREDERICK BUSINESS PROPERTIES
COMPANY AND VINCENT JOSEPH ROOT, SR.,
Defendants Below, Appellees
___________________________________________________
Appeal from the Circuit Court of Berkeley County
Honorable David H. Sanders, Judge
Civil Action No. 93-C-365
AFFIRMED
____________________________________________________
Submitted: September 13, 1995
Filed: November 17, 1995
D. Michael Burke
Burke & Schultz
Martinsburg, West Virginia
Attorney for the Appellant
Robert B. Keddie
Keddie & Keddie
Bridgeville, Pennsylvania
Attorney for the Appellee
Vincent Joseph Root, Sr.
Donna M. Robinson
Nashville, Tennessee
Attorney for the Appellee
Frederick Business Properties Company
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE ALBRIGHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "'"'Rulings on the admissibility of evidence are largely within a trial court's
sound discretion and should not be disturbed unless there has been an abuse of discretion.'
State v. Louk, 171 W. Va. 639, 301 S.E.2d 596, 599 (1983)." Syllabus Point 2, State v.
Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983).' Syllabus Point 7, State v. Miller, 175 W.
Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin &
Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990).
2. Evidence of a beneficiary's relationship with the decedent may be admitted
into evidence for purposes of determining damages in a wrongful death action pursuant to
W. Va. Code, 55-7-6(c)(1) [1989] which provides for the recovery of damages for "[s]orrow,
mental anguish, and solace which may include society, companionship, comfort, guidance,
kindly offices and advice of the decedent[.]" Whether evidence is relevant pursuant to W.
Va. R. Evid. 401 and 402 when determining damages in a wrongful death action and whether
the probative value of such evidence is substantially outweighed by the danger of unfair
prejudice pursuant to W. Va. R. Evid. 403 must be determined on a case-by-case basis.
Moreover, on appeal this Court will not disturb a trial court's ruling on the admissibility of
such evidence unless there has been an abuse of discretion.
3. "'In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken.' Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103 [, 181 S.E.2d 334] (1971)." Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978).
4. "To trigger application of the 'plain error' doctrine, there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, ___
W. Va. ___, 459 S.E.2d 114 (1995).
5. "'Where objections were not shown to have been made in the trial court, and
the matters concerned were not jurisdictional in character, such objections will not be
considered on appeal.' Syllabus Point 1, State Road Commission v. Ferguson, 148 W. Va.
742, 137 S.E.2d 206 (1964)." Syl. pt. 3, O'Neal v. Peake Operating Co., 185 W. Va. 28, 404 S.E.2d 420 (1991).
6. "The formulation of jury instructions is within the broad discretion of a
circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of
discretion standard. A verdict should not be disturbed based on the formulation of the
language of the jury instructions so long as the instructions given as a whole are accurate and
fair to both parties." Syl. pt. 6, Tennant v. Marion Health Care Foundation, Inc., ___ W. Va.
___, 459 S.E.2d 374 (1995).
7. "'"'"Instructions must be read as a whole, and if, when so read, it is apparent
they could not have misled the jury, the verdict will not be disturbed, through [sic] one of
said instructions which is not a binding instruction may have been susceptible of a doubtful
construction while standing alone." Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W. Va. 397, 184 S.E.2d 118 (1971).' Syllabus Point 2, Roberts v. Stevens
Clinic Hospital, Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)." Syllabus Point 3, Lenox v.
McCauley, 188 W. Va. 203, 423 S.E.2d 606 (1992).' Syllabus Point 6, Michael v. Sabado,
192 W. Va. 585, 453 S.E.2d 419 (1994)." Syl. pt. 7, Tennant v. Marion Health Care
Foundation, Inc., ___ W. Va. ___, 459 S.E.2d 374 (1995).
McHugh, Chief Justice:
The appellant, Pamela J. Voelker, appeals the August 24, 1994 order of the
Circuit Court of Berkeley County which denied her motion for a new trial. The appellant,
as an administratrix, sought to recover damages for the wrongful death of her son who was
almost six years old at the time of his death. The jury returned a verdict for the appellees,
Frederick Business Properties Co. and Vincent Joseph Root, Sr. For reasons explained
below, we affirm the circuit court's order.
I
On May 3, 1991, the appellant's son was standing at a school bus stop located
near an apartment complex with an adult, Glenda Smith, and another child.See footnote 1 As the
appellee, Vincent Root, approached the school bus stop, the appellant's son started to run out into the street in front of Mr. Root's vehicle. Mr. Root brought his vehicle to a complete stop
without hitting the appellant's son.
Mr. Root then motioned for Ms. Smith and the two children to cross the street.
Ms. Smith declined to cross the street. Mr. Root testified that he understood Ms. Smith to
be responding on behalf of herself and the two children.
Thereafter, Mr. Root started to move his truck when he felt a bump. Upon
stopping his truck and exiting the vehicle, Mr. Root saw that his left front tire had run over
the appellant's son causing fatal injuries to his abdomen and thoracic regions.
II
The primary issue in this case concerns the admission of evidence of a
beneficiary's relationship with a decedent in an action brought for the wrongful death of the
decedent.See footnote 2 More specifically, in the case before us, the appellant challenges the admission
of evidence regarding a mother's character, parental expertise, and private personal
relationships in an action brought for the wrongful death of her child.
The appellant maintains that the admission of such evidence is not relevant
pursuant to W. Va. R. Evid. 401 and 402 when determining whether a wrongful death occurred, and even if it would be relevant, such evidence should be excluded pursuant to W.
Va. R. Evid. 403 because its probative value is substantially outweighed by the danger of
unfair prejudice. Conversely, the appellees contend that such evidence in the case before us
is relevant when determining whether damages for "[s]orrow, mental anguish, and solace
. . ." should be awarded in a wrongful death action. See W. Va. Code, 55-7-6 [1989].See footnote 3 Furthermore, the appellees assert that the probative value of such evidence is not
substantially outweighed by the danger of unfair prejudice.
At common law there was no action for damages arising out of a wrongful
death. See Dunsmore v. Hartman, 140 W. Va. 357, 359, 84 S.E.2d 137, 138 (1954). The
wrongful death action was first created by an English statute known as Lord Campbell's Act
which this State essentially adopted in 1863. Id. Today the right to bring a wrongful death
action is codified at W. Va. Code, 55-7-5 [1931] which states, in relevant part:
Whenever the death of a person shall be caused by
wrongful act, neglect, or default, and the act, neglect or default
is such as would (if death had not ensued) have entitled the
party injured to maintain an action to recover damages in respect
thereof, then, and in every such case, the person, who, or the
corporation which, would have been liable if death had not
ensued, shall be liable to an action for damages, notwithstanding
the death of the person injured[.]
W. Va. Code, 55-7-6 [1989] provides, inter alia, who may bring an action for wrongful
death, the damages which may be collected, and how the damages are to be distributed.
More specifically, W. Va. Code, 55-7-6(c)(1) [1989] states:
(c)(1) The verdict of the jury shall include, but may not
be limited to, damages for the following: (A) Sorrow, mental
anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
(B) compensation for reasonably expected loss of (i) income of
the decedent, and (ii) services, protection, care and assistance
provided by the decedent; (C) expenses for the care, treatment
and hospitalization of the decedent incident to the injury
resulting in death; and (D) reasonable funeral expenses.
(emphasis added). The question, in the case before us, is whether evidence regarding the
relationship between a beneficiary and the decedent is relevant in determining whether
damages should be awarded for "[s]orrow, mental anguish, and solace which may include
society, companionship, comfort, guidance, kindly offices and advice of the decedent[.]" Id.
In essence, the appellant argues that any evidence regarding the bad character
of the plaintiff beneficiary or her poor relationship with the decedent is irrelevant in a
wrongful death action. The appellant asserts such evidence is prejudicial in that the jury may
choose to not award damages solely because of the bad character of the plaintiff beneficiary
or the poor relationship with the decedent and ignore the evidence which clearly shows that
the defendant's wrongful act, neglect, or default caused the decedent's death. We disagree
with the appellant's conclusion.
Our discussion begins with W. Va. R. Evid. 401, 402, and 403. We emphasize
that these three rules are to be read together and are not to be applied in isolation. See 1
Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers, § 4-1[E](4) (3d
ed. 1994). W. Va. R. Evid. 402 states: "All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the Constitution of the State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of Appeals.
Evidence which is not relevant is not admissible." The term "relevant evidence" is defined
in W. Va. R. Evid. 401: "'Relevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Finally, W. Va. R. Evid.
403 provides: "Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."
Clearly, evidence regarding a beneficiary's relationship or lack thereof with the
decedent would be relevant in determining whether the beneficiary is entitled to damages for
"[s]orrow, mental anguish, and solace which may include society, companionship, comfort,
guidance, kindly offices and advice of the decedent[.]" W. Va. Code, 55-7-6 [1989]. See
22A Am. Jur.2d Death § 312 (1988) ("[T]he extent of any affection on the part of the
decedent for the beneficiaries . . . may . . . have a bearing upon the determination of the
actual loss suffered by the beneficiaries.") and 1 Stuart M. Speiser et al., Recovery for
Wrongful Death and Injury § 3:37 (3d ed. 1992) ("Obviously the relationship between the
decedent and the beneficiary or beneficiaries is a significant element in determining and
fixing wrongful death damages[.]"). See also Adkins v. Seaboard Coast Line R. Co., 351 So. 2d 1088, 1092 (Fla. Dist. Ct. App. 1977) (The evidence that the decedent was going to
divorce his wife is admissible in a wrongful death action brought by the decedent's wife because the evidence is probative of the decedent's intent and, therefore, "warrant[s]
consideration by the jury in assessing the survivors' damages [for their sentimental losses].");
Countryman v. County of Winnebago, 481 N.E.2d 1255 (Ill. App. Ct. 1985) (In a wrongful
death action brought by a wife, evidence that the wife found the decedent in bed with another
woman was improperly excluded because it was relevant to whether the wife suffered loss
of consortium and was more probative than prejudicial); Strelecki v. Firemans Insurance Co.
of Newark, 276 N.W.2d 794, 801-802 (Wis. 1979) (In a wrongful death action brought by
decedent's wife the Supreme Court of Wisconsin held that the decedent's "personal conduct
dealing with his periodic hospitalization for alcoholism[;] his fighting and assaulting his
wife, mother and son[;] his extramarital activities[;] his attempts to molest his daughter[;] his
suicidal tendencies and lack of marital sex with [the wife was] relevant to the determination
of [the wife's] claim for loss of society and companionship[;]" however, the admission of
evidence relating to his unwed daughter's pregnancy was not relevant).
When determining whether there is a right to recover damages for loss of
society the elements of proof might include:
(1) Relationship of husband and wife, or of parent and
child (or similar relationship between collateral relatives);
(2) Continuous living together of parties at and prior to
time of wrongful death;
(3) Lack of absence of deceased or beneficiary for
extended periods of time;
(4) Harmonious marital or family relations;
(5) Common interest in hobbies, scholarship, art,
religion, or social activities;
(6) Participation of deceased in family activities;
(7) Disposition and habit of deceased to tender aid,
solace and comfort when required;
(8) Ability and habit of deceased to render advice and
assistance in financial matters, business activities, and the like.
Speiser, supra at § 3:51 at 241. However, the above list is obviously not exhaustive. As the
Supreme Court of Iowa stated:
Quite obviously it is impossible to generalize on the extent to
which persons--including parents and children--enjoy each
other's companionship and society. This is a highly personal
relationship which must of necessity be decided on a case-by-
case basis. When it relates to a parent and child, it depends on
all the circumstances important in the lives of a particular parent
and a particular child. It takes into consideration not only the
character, age, intelligence, interests and personality of the child
but also those same factors as they are possessed, or not
possessed, by the parent. After all, it is the parents' loss which
is being appraised, and the extent to which he has been deprived
of the company of his minor child depends on the ability of the
child to offer companionship and society and the ability of the
parent to enjoy it.
Pagitt v. City of Keokuk, 206 N.W.2d 700, 703 (Iowa 1973) (emphasis provided).
Indeed, the admission of any evidence at trial depends upon the facts of each
particular case. It is for this reason that the responsibility of determining the admissibility
of evidence lies with the trial judge, who is best able to evaluate the totality of circumstances
surrounding the admission of evidence: "'"'Rulings on the admissibility of evidence are
largely within a trial court's sound discretion and should not be disturbed unless there has
been an abuse of discretion.' State v. Louk, 171 W. Va. 639, 301 S.E.2d 596, 599 (1983)."
Syllabus Point 2, State v. Peyatt, 173 W. Va. 317, 315 S.E.2d 574 (1983).' Syllabus Point
7, State v. Miller, 175 W. Va. 616, 336 S.E.2d 910 (1985)." Syl. pt. 10, Board of Education v. Zando, Martin & Milstead, Inc., 182 W. Va. 597, 390 S.E.2d 796 (1990). See also syl.
pt. 9, TXO Production v. Alliance Resources, 187 W. Va. 457, 419 S.E.2d 870 (1992).
Accordingly, we hold that evidence of a beneficiary's relationship with the
decedent may be admitted into evidence for purposes of determining damages in a wrongful
death action pursuant to W. Va. Code, 55-7-6(c)(1) [1989] which provides for the recovery
of damages for "[s]orrow, mental anguish, and solace which may include society,
companionship, comfort, guidance, kindly offices and advice of the decedent[.]" Whether
evidence is relevant pursuant to W. Va. R. Evid. 401 and 402 when determining damages in
a wrongful death action and whether the probative value of such evidence is substantially
outweighed by the danger of unfair prejudice pursuant to W. Va. R. Evid. 403 must be
determined on a case-by-case basis. Moreover, on appeal this Court will not disturb a trial
court's ruling on the admissibility of such evidence unless there has been an abuse of
discretion.
With these principles controlling, the facts leading up to appellant's specific
complaints in the case before us must be examined. Prior to trial the appellant made two
motions in limine. The first motion in limine was made on June 8, 1994, in which the
appellant moved the trial court to instruct the appellees not to mention or refer to the volatile
and acrimonious marital relationship between the appellant and her ex-husband (the
decedent's father), William Weisenberg. The second motion in limine was made on June 16,
1994, in which the appellant moved to suppress, pursuant to W. Va. R. Evid. 403, all
evidence relating to appellant's character, parental expertise, and private personal relationships. However, neither the parties nor the designated portions of the record which
we have before us indicate how or whether the trial judge ruled on the appellant's motions
in limine. Thus, we decline to address any error asserted by the appellant regarding her
motions in limine: "'In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from which
the appeal has been taken.' Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103 [, 181 S.E.2d 334] (1971)." Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d 327 (1978).
At trial, the issue of whether evidence regarding the relationship between the
appellant and the decedent should be admitted is raised on four occasions. On one occasion,
the issue may be resolved by applying the framework we provided for analyzing when
evidence involving the relationship between the decedent and beneficiary is admissible. On
the other three occasions, the issue may be resolved as not being adequately preserved for
appellate review.
First, the issue arises during Richard Todd Myers' testimony. Mr. Myers was
dating the appellant when her son died. The appellant objected to the appellees asking Mr.
Myers whether the decedent and his brother had to be disciplined. After a lengthy discussion
the trial judge ruled that evidence of whether the appellant or Mr. Myers disciplined the
children was relevant: "I think that it is a necessary component of a mother's relationship
with a child who would have other adults she has living in the home and what their conduct
may be towards her children. I think that is a component of the mother's relationship with
a child. I am going to permit it and note your objection."
The appellant's counsel stated that he did not want the evidence to show that
just because the appellant is a "bad person" "she is not entitled to recover for the death." The
trial court agreed that the appellees' questioning might lead to impermissible evidence and
warned the appellees to be careful: "I am not exactly clear when the line of questioning
going too far would be. . . . It does appear there is probativeness and prejudice in a blend
here. So just be sensitive of that. I think to the [appellees] I think you're at your peril before
a jury but go ahead."See footnote 4
Clearly, the trial judge analyzed the issue from the framework we provided
above. The trial judge evaluated whether the evidence was relevant, and upon finding it to
be relevant to the determination of whether the appellant sustained damages, evaluated
whether its probative value was substantially outweighed by the danger of unfair prejudice.
The trial judge determined that the probative value of the testimony regarding the
disciplining of the children was not substantially outweighed by the danger of unfair prejudice. We do not find that the trial judge abused his discretion when admitting the
evidence regarding the disciplining of appellant's children.
Second, the appellant asserts that it was error for the trial court to admit Mr.
Myers' testimony that he permitted the decedent to walk to the bus stop unsupervised. We
could not find in the record before us where the appellant's counsel objected to the admission
of such testimony nor did the appellant's counsel note when the objection was made. As we
have stated previously, "ordinarily a party may not claim evidentiary error on appeal where
no objection is made at the trial level. This is designed to prevent a party from obtaining an
unfair advantage by failing to give the trial court an opportunity to rule on the objection and
thereby correct potential error." Wimer v. Hinkle, 180 W. Va. 660, 663, 379 S.E.2d 383,
386 (1989) (footnote omitted). After all, "[i]t is not the role of the trial judge to present
evidence; nor is it his or her responsibility to exclude or limit evidence, as provided by
evidence law . . . . To be clear, the party complaining on appeal of the admission of evidence
bears sole responsibility for adequately preserving the record on meaningful appellate
review." Tennant v. Marion Health Care Foundation, Inc., ___ W. Va. ___, ___, 459 S.E.2d 374, 391 (1995). Thus, the appellant has failed to preserve this error for appeal: "'Where
objections were not shown to have been made in the trial court, and the matters concerned
were not jurisdictional in character, such objections will not be considered on appeal.'
Syllabus Point 1, State Road Commission v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964)." Syl. pt. 3, O'Neal v. Peake Operating Co., 185 W. Va. 28, 404 S.E.2d 420 (1991).
See also W. Va. R. Evid. 103(1).See footnote 5
However, we recognize that pursuant to W. Va. R. Evid. 103(2)(d) we may
address "plain errors affecting substantial rights although they were not brought to the
attention of the court." We have noted in the past that the plain error "doctrine is to be used
sparingly and only in those circumstances where substantial rights are affected, or the truth-
finding process is substantially impaired, or a miscarriage of justice would otherwise result."
Syl. pt. 4, in relevant part, State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988). More
recently, we held that in order "[t]o trigger application of the 'plain error' doctrine, there must
be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects
the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v.
Miller, ___ W. Va. ___, 459 S.E.2d 114 (1995). We further explained in Miller, supra, that
when determining whether the error is plain we look to see if the error is clear or obvious.
Id. at ___, 459 S.E.2d at 129. If the error is clear or obvious, then it must affect substantial
rights. In other words, it must be prejudicial, affecting the outcome of the case. Id. Lastly,
we point out, in the case before us, that it is the defendants and not the plaintiff who have
the burden of persuasion with respect to prejudice.
In the case before us, we find that even if it was error to admit Mr. Myers'
testimony that he permitted the decedent to walk to the bus stop unsupervised, such error
does not rise to the level of being plain error. Our review of the record indicates that there
was sufficient evidence to support the jury's verdict. As we previously stated, the appellee,
Mr. Root, testified that when the decedent began to walk out into the street in front of his
truck he brought his truck to a complete stop as he approached the area where the bus stop
was located. Mr. Root then motioned for the woman and two children, one of whom was
the decedent, to cross the street. According to Mr. Root the woman declined to cross the
street. Mr. Root maintains that he did not move his truck again until he was certain his path
was clear. Under these facts the jury could reasonably find that the appellees used due care
and were not negligent in spite of the appellant's contention that certain evidence which
suggests that she did not properly supervise her children or was otherwise a bad parent was
erroneously admitted. Thus, even if the admission of Mr. Myers' testimony was error, it did
not affect the outcome of the case thereby implicating the plain error doctrine.
Third, the appellant asserts that it was error for the trial judge to admit her
testimony that she allowed the decedent to walk alone to the bus stop. The appellant states
that she objected to such testimony being adduced. Our review of the record indicates
otherwise. The appellant's counsel did not object when she was asked whether the decedent
walked to the bus stop unsupervised. In fact, the appellant's counsel did not make any
objection until after the appellant testified that the decedent was learning to go to the bus stop on his own, and after she had responded to several more questions regarding this issue.See footnote 6
Although the record is unclear, it appears that when the appellant's counsel
finally objected, he specifically objected to the admission of the rules and regulations the
appellant signed when she moved into the apartment complex where the decedent caught
the bus, rather than to the admission of her testimony that she allowed the decedent to walk
alone to the bus stop. Although the record is not explicit, we can only assume from the
discussion between the attorneys that the rules and regulations at issue must have involved
the supervision of children at the apartment complex. The trial judge, after a lengthy
discussion with counsel, concluded that the rules and regulations of the apartment complex
signed by the appellant were not admissible:
I am anxious to do nothing to muddy this trial in terms of
whatever it may be on appeal. And if the [appellee] is not
urging this, and admits that this is not relevant in the area of
liability because it would appear that, and also that it appears
that the [appellant] has admitted and acknowledged that she and her fiancé sent the child repeatedly as habit to the bus stop
unsupervised, and so that has been demonstrated through her
own testimony, that this really seems to be marginal.
It seems perhaps it does run a risk -- I am going to rethink
this, perhaps it does run a risk of -- it isn't relevant immediately
to any particular point. I see relevance to damage[s] so
tangential and so marginal since you have in essence developed
the fact in any event that showing a contract was violated, I
really don't see how that either enhances or decreases the
recoverable damages if the jury feels inclined to even move to
that segment of the trial. So I think I am going to have to
reconsider this, and I am going to exclude it.
(emphasis added).
As we have previously stated, W. Va. R. Evid. 103(1) requires an attorney to
make a timely objection stating the specific ground therefor, unless the specific ground is
apparent from the context. See n. 5 supra. We recognize that there are situations in which
it is impossible to object to an improper question before the witness responds. However,
when this situation occurs the trial attorney must object as soon as possible and move to
strike the witness's response to the improper question. If the trial attorney fails to move to
strike, then the ruling of the trial judge is not preserved for appellate review. See 1 Franklin
D. Cleckley, supra § 1-7(D) at 89 ("After the question is answered, an objection alone is
insufficient unless accompanied by a motion to strike the answer."). The rationale behind
W. Va. R. Evid. 103(1)'s requirement of a timely and specific objection is that a party "will
not be allowed to wait in silence, hoping that the answer will be helpful, then object when
the answer is damaging." Id. at 90.
In the case before us, our review of the record indicates that the appellant's
counsel did not timely object to the admission of the appellant's testimony that she allowed
the decedent to walk to the bus stop unsupervised. Moreover, once the appellant's counsel
made an objection, he failed to move to strike the testimony which the appellant now
complains of on appeal. Thus, the appellant has failed to preserve this issue for appellate
review. See syl. pt. 3, O'Neil, supra and W. Va. R. Evid. 103(1), supra. Moreover, like the
admission of such testimony from Mr. Myers which we discussed above, we do not find that
the admission of appellant's testimony implicates the plain error doctrine. See syl. pt. 7,
Miller, supra.
Fourth, the appellant asserts that the trial judge erred when admitting William
Weisenburg's testimony regarding the appellant's use of marihuana, cocaine and other drugs
in the presence of their children. William Weisenburg is the appellant's ex-husband.
Prior to Mr. Weisenberg taking the witness stand, the appellees' counsel
informed the trial court that Mr. Weisenburg would be testifying about appellant's use of
drugs in front of their children. After being asked by the trial judge for a response to the
anticipated testimony, the appellant's counsel stated that he was surprised to learn that Mr.
Weisenberg would be testifying about appellant's drug use. The appellant's attorney
requested a short break in order to confer with the appellant which the trial judge granted.
However, we could not find in the record nor did the appellant's counsel note in the record
where he objected to the admission of Mr. Weisenberg's testimony regarding appellant's drug
use. Thus, once again the error, if error, was not preserved for appellate review nor for reasons which we have previously expressed does it implicate the plain error doctrine. See
syl. pt. 3, O'Neil, supra, W. Va. R. Evid. 103(2)(d), supra and syl. pt. 7, Miller, supra.
We emphasize that it is necessary for attorneys to make timely objections and
to make clear their grounds for their objections when the grounds are not apparent from the
context in order to preserve their error for appeal. Furthermore, simply raising the issue
before the trial judge is insufficient. Attorneys have an obligation to protect the record in
relation to rulings by trial judges on specific issues. In the case before us, the appellant's
counsel's lack of precision makes clear the importance of adequately developing the record.
As we previously stated, "the party complaining on appeal of the admission of evidence
bears sole responsibility for adequately preserving the record on meaningful appellate
review." Tennant, ___ W. Va. at ___, 459 S.E.2d at 391.
III
The appellant also asserts that the trial judge erred when modifying appellant's
jury instruction number 6. We are mindful that we have held the following in syllabus points
6 and 7 of Tennant, supra:
6. The formulation of jury instructions is within the
broad discretion of a circuit court, and a circuit court's giving of
an instruction is reviewed under an abuse of discretion standard.
A verdict should not be disturbed based on the formulation of
the language of the jury instructions so long as the instructions
given as a whole are accurate and fair to both parties.
7. '"'"Instructions must be read as a whole, and if, when
so read, it is apparent they could not have misled the jury, the
verdict will not be disturbed, through [sic] one of said
instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone."
Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company,
155 W. Va. 397, 184 S.E.2d 118 (1971).' Syllabus Point 2,
Roberts v. Stevens Clinic Hospital, Inc., 176 W. Va. 492, 345 S.E.2d 791 (1986)." Syllabus Point 3, Lenox v. McCauley, 188
W. Va. 203, 423 S.E.2d 606 (1992).' Syllabus Point 6, Michael
v. Sabado, 192 W. Va. 585, 453 S.E.2d 419 (1994).
The appellant raises two errors with regard to the appellant's jury instruction
number 6 which was read to the jury. The first error concerns the language from the
following paragraph found in the instruction:
[B]ecause children are impelled by instincts of
immaturity and are often heedless of danger, the law imposes a
higher degree of care around children. It is the legal duty of an
automobile driver when encountering school children in the
vicinity of a school or where there are groups of children to
exercise a high degree of caution, vigilance and alertness in
keeping a proper lookout, sounding warnings of his approach,
and driving in such a conscientious and intelligent manner as to
avoid inflicting injury. More than ordinary care is required of
a driver around children. A driver must increase his exertions
and attention in order to avoid danger to children whom he may
see or, by the exercise of reasonable care, should see on or near
a roadway.
(emphasis added). The appellant asserts that the trial judge erred by substituting the phrase
"a school bus stop" with the words "where there are groups of children." We fail to see how
this modification would mislead a jury. In fact, this modification is more beneficial to the
appellant in that the trial judge instructed the jury that a high degree of care must be used
when groups of children are present regardless of whether or not the children are present at
a bus stop. Accordingly, we hold that the trial judge did not abuse his discretion.
Second, the appellant argues that the trial judge erred by deleting the following
words from instruction number six: "Ascertaining the whereabouts of [the decedent] after
waving for him to cross and before starting his vehicle after having been stopped." However,
our review of the instruction which was read to the jury reveals that similar language was
read by the trial judge in a later portion of the same instruction. Specifically, the trial judge
informed the jury in the instruction that if they found that Mr. Root
breached the high degree of care imposed upon him when he hit
[the decedent], by failing to keep a proper lookout, or failing to
sound a warning of his approach, or by regulating the speed of
the truck he was driving in order to avoid striking [the
decedent], or by starting to move the truck he was driving before
ascertaining the whereabouts of [the decedent], then you may
find Mr. Root negligent.
(emphasis added). Clearly, the trial judge instructed the jury as the appellant sought. Thus,
we conclude that the trial judge did not abuse his discretion in regard to rulings on jury
instructions.
IV
Based upon our discussion above, we find no reversible error. Accordingly,
we affirm the August 24, 1994 order of the Circuit Court of Berkeley County.
Affirmed.
Footnote: 1
There is some dispute as to what occurred on the day the appellant's son
died; however, it is unnecessary to the resolution of the issues raised on appeal for this
Court to address the factual disputes. Thus, we will address the facts "fairly arising from
the evidence in favor of the party for whom the verdict was returned[:]"
'"In determining whether the verdict of a jury is
supported by the evidence, every reasonable and legitimate
inference, fairly arising from the evidence in favor of the
party for whom the verdict was returned, must be considered,
and those facts, which the jury might properly find under the
evidence, must be assumed as true." Syllabus point 3, Walker
v. Monongahela Power Company, 147 W. Va. 825, 131 S.E.2d 736 (1963).' Syl. pt. 3, McNeely v. Frich, 187 W. Va.
26, 415 S.E.2d 267 (1992).
Syl. pt. 7, Johnson v. General Motors Corporation, 190 W. Va. 236, 438 S.E.2d 28
(1993).Footnote: 2
The appellant frames the issue much more narrowly: "The Circuit Court
ERRED when it permitted William Weisenberg to testify that he and the Plaintiff,
Pamela Voelker[,] used marijuana, cocaine and other drugs at their home while their
children were present, prior to January, 1989[.]" However, in the discussion which
followed the issue in the appellant's brief, the appellant complains about the admission of
other evidence such as evidence that plaintiff's fiancé physically disciplined the decedent.
Thus, we find it more appropriate to reframe the issue in order to address all of the
appellant's contentions.Footnote: 3
W. Va. Code, 55-7-6 was amended in 1992; however, the amendment does
not affect the discussion of the issue before us. We note that the 1989 version of W. Va.
Code, 55-7-6 applies in the case before us because the child died in 1991. Cf. syllabus
point 5, Arnold v. Turek, 185 W. Va. 400, 407 S.E.2d 706 (1991) ("Statutory changes in
the manner and method of distributing the proceeds of a judgment or settlement for
wrongful death will not be given retroactive effect, and the statute in effect on the date of
the decedent's death will control.")
We point out that syllabus points 1 and 2 of Arnold, supra, regarding how
the wrongful death award should be allocated among the beneficiaries pursuant to W. Va.
Code, 55-7-6 [1989] was changed with the 1992 amendments to W. Va. Code, 55-7-6.
Arnold held in syllabus point 2 that
[w]ith regard to the distribution of a wrongful death
settlement, W.Va. Code, 55-7-7 (1989) [which refers to W.
Va. Code, 55-7-6], directs a judge to distribute the settlement
in accordance with the decedent's will or, if there be no will,
in accordance with the laws of descent and distribution.
Thus, the legislature has taken away the discretion of the
court to allocate a greater share of wrongful death proceeds
based on an individual's degree of dependency, relationship,
or loss, which existed prior to the 1989 amendments to the
Wrongful Death Act.
W. Va. Code, 55-7-6(b), after being amended in 1992, reads, in relevant part:
In every such action for wrongful death the jury, or in
a case tried without a jury, the court, may award such
damages as to it may seem fair and just, and, may direct in
what proportions the damages shall be distributed to the
surviving spouse and children . . . . If there are no such
survivors, then the damages shall be distributed in accordance
with the decedent's will or, if there is no will, in accordance
with the laws of descent and distribution[.]
Footnote: 4
During this exchange the appellant's counsel expressed concern over the
admission of testimony by the appellant's ex-husband regarding the relationship between
him and the appellant. The trial judge, as indicated above, ruled on the admission of
testimony regarding the disciplining of appellant's children; however, the trial judge
stated that the probative value of other evidence of this nature may be substantially
outweighed by the danger of unfair prejudice. The trial judge simply deferred ruling on
the admission of such evidence until it could be determined exactly what the evidence
would be. When the ex-husband testified, however, the appellant's counsel only made an
objection to the admission of hearsay testimony. He did not object to any testimony
regarding the relationship between the ex-husband and the appellant which he complains
of on appeal. Footnote: 5
W. Va. R. Evid. 103(1) states: "Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. -- In case the ruling is one admitting evidence, a timely objection or
motion to strike appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context[.]"Footnote: 6
Below is a portion of the testimony which is at issue:
Q. [by the appellees' attorney] When was the last time
that you or [Mr. Myers] walked the boy [the decedent] to the
bus stop?
A. [by the appellant] Well, he didn't catch the bus at
the apartments so I can't really say when the last time was. I
can't recall a specific date. When we first moved and [Mr.
Myers] was baby-sitting for me more regularly, then he
walked him down every day. But then as we lived there
awhile, and he learned the way, and he got older, and we
prepared for first grade and things, he was learning to go on
his own.
Q. On cross examination earlier I believe I established
through Mr. Todd Myers testimony that no one had walked
the boy down to the bus stop since the end of March 1991; do
you recall that testimony?
A. Yes, sir.
Q. Do you agree with that?
A. I can't say, sir. I told you I am not certain of a date.
Q. Can you give us any information here today to
indicate that that particular statement by Mr. Myers was false
or inaccurate?
A. Well, as I said, sir, [the boy] didn't catch the bus at
the tree. Sometimes Todd would have taken him home with
him the night before and driven him to the bus stop, or if I
didn't have someone that could watch him, gone to work with
me that day, and I walked him to school, or he would go with
Mr. Whiteley [the parties do not identify who Mr. Whiteley
is] and Mr. Whiteley would drive him to school.
Q. On those instances where [the boy] left from his
home in Roberts Gardens after the end of March of 1991 did
he walk alone? Do you have any information to contradict
that he walked alone?
A. I cannot say. I am not sure of a date.
[Appellant's attorney]: I would like to approach the bench on this matter. [At this point the attorneys discuss the admission of rules and regulations signed by the appellant when she moved into the apartment complex.]
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