Pcolar v. Casella Waste Systems, Inc., 2012 VT 58.
Today’s lesson in modified-comparative negligence comes to us courtesy of a Chittenden County jury verdict and my first-year torts class.
Back in the Unnamed Partner’s heyday, tort law was a strict area of the law when it came to fault. If someone brought an action to recover from, say, a horseless-carriage accident, and it was shown that she had contributed even a small bit to the accident then plaintiff was barred from recovering anything.
As time passed, this all-or-nothing standard was found to be too harsh, and so, comparative negligence was born. Strict comparative negligence reduces a plaintiff’s recovery by whatever degree of fault is attributed to her. So if a plaintiff was 90% responsible for an accident, she could still recover the 10% that defendant contributed. This, of course, in its own way, is also unfair.
Most jurisdictions—like Vermont—have adopted a modified-comparative-negligence. Under such systems, a plaintiff can recover only if she was 50% or less at fault; if the plaintiff was more than 50% at fault, she recovers nothing. Some states have 49% and 51% rules and other variations, but that’s all I can remember from my first-year torts class. If you have a close case, you should probably look it up. Getting your legal education from this blog is like using Reader’s Digest for your literature degree. Condensation is really something only water should do.
The facts and percentages here are straightforward. Plaintiff was helping a friend clean out the friend’s garage. Plaintiff was cutting cardboard boxes into flat sheets. In the early afternoon, a garbage truck, owned by Casella, stopped by the building to pick up trash. The truck had a single gripper arm designed for grabbing trash containers and dumping them into the truck.
Plaintiff asked the driver to take the cardboard and the driver agreed. The driver told Plaintiff to stack the cardboard horizontally on top of the gripper arm, after which the driver would use the arm to dump the cardboard into the truck. In the process, some pieces of cardboard fell. Plaintiff moved in close to the truck to gather those pieces, and though the parties dispute the precise sequence of events, Plaintiff was hit in the arm by the gripper arm.
Plaintiff filed a pro ser suit. He claimed that the blow from the gripper arm injured his head, arm, neck, shoulder, and back. He claimed that the driver was negligent. After a two-day jury trial, the jury was given a comparative negligence instruction. The jury found Plaintiff 70% at fault, and so, Plaintiff was barred from recovering anything.
Plaintiff appeals on several grounds. First, he argues that the jury’s verdict was not supported by the evidence. The SCOV dismisses this argument with little fanfare, reasoning that the jury heard only from driver and Plaintiff, who told conflicting stories, and that it is the jury’s function to resolve conflicting testimony. Accordingly, the jury’s attribution of 70% of fault to Plaintiff was reasonable.
Plaintiff next argues that because he submitted his 178-page deposition transcript, and the jury was only out for an hour and a half, they couldn’t have considered all the evidence. The SCOV reasons that there is no requirement that the jury read a transcript verbatim, and that the jury’s deliberation time was reasonable given the nature of the case. Plaintiff also gave live testimony and was given an adequate opportunity to tell his side of the story, which he in fact did.
Plaintiff next argues that the trial court committed reversible error when it denied his motion to show the jury a garbage truck in the parking lot of the courthouse. On this point, the SCOV finds no error. Plaintiff elicited testimony about the arm’s operation from the driver and presented a video of the gripper arm’s operation. When the judge nixed the parking-lot field trip, it was within the court’s discretion to exclude cumulative evidence under Vt. Rule of Evidence 403.
Plaintiff had moved to compel depositions of eight witnesses, but the court only let him depose three. This is his next argument on appeal: that the trial court should have let him depose all the requested witnesses.
First, Plaintiff wanted to depose the CEO of the company to show that the CEO offered to pay medical expenses. As many readers know, Vt. Rule of Evidence 409 prohibits introduction of settlement negotiations to show fault. Accordingly, because Plaintiff wanted to depose the CEO to preserve inadmissible testimony, there was no error in denying Plaintiff’s motion to compel deposition of the CEO.
Plaintiff’s issues with the denial of his motion to depose Defendants’ counsel is a bit more interesting as Plaintiff filed a timely motion to depose without the attorney’s name. When he filed an amended motion (with the attorney’s name), it was a day late. The motion was denied as untimely. The SCOV reasons, however, that whether the motion was timely or not, the motion was properly denied. Plaintiff simply (in his timely 19-page motion) claimed that the attorney had information that he “need[ed] to review prior to other depositions.” Because the apparent probative value was minimal, the SCOV reasons that there was a good reason under Vt. Rule of Evidence 403 for denying the motion, and moves on to the remaining three witnesses.
The trial court denied the motion to compel depositions of the three remaining witnesses either because the request sought work product or because the trial court could not understand what relevance their testimony would have. The SCOV notes the low standard Plaintiff had to meet to show relevance, and agrees with the trial court that, for example, deposing folks who had access to the accident reports, would seem to have little probative value.
Plaintiff’s next argument is also discovery-related. The trial court denied Plaintiff’s “motion to compel disclosure of the recorded interview of the truck driver conducted by the insurance adjuster for Casella’s insurance carrier” as moot when Casella produced a summary of the interview for Plaintiff. Though the SCOV finds error here—a summary is not the same as a recording—the error is harmless. This is because the recording was work-product privileged. It was recorded 20 days after the incident, and Plaintiff contacted the CEO the day after. Accordingly, the recorded interview would have been prepared in anticipation of litigation and likely within the attorney work-product privilege. This part of the opinion is worth reading carefully because the SCOV does note the non-absolute nature of the work-product privilege in determining that Plaintiff has not met the “substantial need” standard for production.
Plaintiff had moved to continue the jury draw (one day before it was scheduled) and to delay the trial (a week before the trial). The first motion was denied because Plaintiff had been “long aware” of the jury draw date. Plaintiff’s motion to continue the trial was based in part on his alleged hiring of an attorney. The judge denied the motion because the case had been pending for over two-and-a-half years and the attorney had not filed a notice of appearance. The SCOV finds both rulings within the trial court’s discretion.
Plaintiff’s next claim is that the trial court erred in admitting evidence and testimony relevant to his previous real estate business and his prior and pending litigation. SCOV: No objection below, no clear error, and no disturbing the trial court’s evidentiary rulings or lack thereof.
Plaintiff then argues that the Defendants’ opening statement was improper, but he doesn’t get more specific than “false statements” made during [opposing counsel’s] “lengthy remarks.” Accordingly, the SCOV finds no error.
Plaintiff also sought to limit his own expert’s testimony—specifically, his neuropsychologist’s apparent opinion that Plaintiff was malingering to affect the outcome of his tests. Who wants that? Anyway, long story short, the SCOV finds no error. Plaintiff could have countered the testimony if needed.
Though Plaintiff’s final arguments sound interesting, we just get the executive summary (jury never should have had a comparative instruction; instructions were not clear and concise). Because Plaintiff had the burden of objecting to the instructions at trial, and failed to do so (see V.R.C.P. 51(b) for you law-review types), the SCOV won’t go there.
And that’s that. Or at least, that’s why you should really have a lawyer for these kind of things.