[S]low Rider

By Andrew Delaney

Fagnant v. Foss, 2013 VT 16

This case is about a slow bump-and-grind . . . and some serious whiplash injuries . . .

—With automobiles, that is . . . in a low-impact, rear-end collision.

In more-legal terms, this case is about how foreseeability relates to proximate cause when duty and breach have been established. 

The short answer is that it generally doesn’t. 

Defendant ran into Plaintiff’s car at low speed while Plaintiff was stopped at a red light.  Plaintiff claimed injuries and filed suit.  At trial Plaintiff testified to a whiplash-style injury (head thrown forward and back) with chronic pain resulting.  Plaintiff claimed limited enjoyment of life due to the pain.  Plaintiff’s medical expert testified that the collision caused the injuries and also that the treatment had been reasonable.  Plaintiff’s treating physicians agreed that the accident caused the injuries.

Defendant conceded negligence before the end of trial, deciding to focus, instead on the damages and injuries claimed.  Defendant’s medical expert testified—more or less—that Plaintiff was exaggerating her injuries, that she was malingering, and that she previously had similar symptoms to her current complaints.

With Defendant’s concessions, duty and breach were effectively established.  And so the trial court granted Plaintiff’s motion for judgment as a matter of law on negligence and liability at the close of evidence.  This basically left only proximate cause and the amount of damages for the jury to decide. 

To make a long story short, the trial court’s proximate-cause instruction suggested that the Plaintiff’s injuries must be reasonably foreseeable.  That is Plaintiff must establish that the nature of her injuries were the type that an average person would expect to come from such an accident.  More on this in a minute.

The jury found no proximate cause, and thus, no damages. 

A couple post-judgment motions to reconsider were filed.  Both were denied, and eventually Plaintiff appealed. 

As the SCOV takes things up on appeal, it starts with the Defendant who argued that Plaintiff’s appeal should be ruled untimely.  The takeaway from this argument is that the time for filing an appeal can be tolled more than once by the filing of motions to reconsider (which are essentially Rule 59 motions to alter or amend, not otherwise recognized under the rules). 

I’ll spare you the gory procedural details.  Needless to say, Plaintiff’s post-judgment motions pushed out the time for an appeal.  So despite the fact that Plaintiff appealed well after the 30 days following trial, the SCOV deems it timely.  

This leads us to Plaintiff’s first argument.  She argued that foreseeability has no place in a proximate cause instruction when duty and breach have been established.   The SCOV notes: “Ordinarily, an instruction regarding liability for negligence that includes consideration of the foreseeability of an adverse consequence would be unremarkable.”  But foreseeability is a concept that shapes the scope of duty. 

The issue of duty in this case had been conceded.  So foreseeability had no place in the jury instructions and its inclusion and link to proximate cause is error.  Foreseeability is not a proximate-cause factor.  The defendant is responsible for all injuries resulting once duty and breach are established unless some other cause intervenes or the cause is too remote for the law to allow the cause to proceed (think of the case where the victim’s ambulance is hit by another car on the way to the hospital to treat her primary injuries).

Though Defendant made a valiant it-was-just-a-passing-reference-and-it-was-not-the-most-well-crafted-but-still-a-valid-instruction, the SCOV does not agree that the error was harmless.  Accordingly, the SCOV reverses and remands for a new trial.

Oh, but we’re not done yet.  Plaintiff made a number of other claims of error and the SCOV, “in the interest of judicial economy,” addresses those claims because they may come up again at the new trial.

First, Plaintiff took issue with the trial court’s denial of her motion to exclude evidence relating to the damage—or lack of damage—to the vehicles involved.  Basically, Plaintiff’s argument is that the lack of damage is prejudicial to the case and not supported by science.  Put another way, the typical common sense reaction—little damage to vehicle means little damage to occupant—is at odds with the scientific data—little damage to vehicle can still result in substantial damage to occupant and the occupant’s soft tissue. 

Though the SCOV finds Plaintiff’s arguments persuasive, and notes that the result may be different in the future, it concludes that the evidence relating to the vehicular damage does have some relevance and that Plaintiff’s arguments are directed more to the weight of the evidence than its lack of probative value.  As such, the SCOV concludes that the trial court did not abuse its discretion in denying Plaintiff’s motion.   

In the same manner and to the same point, the SCOV reasons that the trial court did not abuse its discretion in denying Plaintiff’s request for a curative instruction regarding the lack of damage to the vehicles.

Plaintiff also took issue with the trial court’s admission of evidence of her past history and treatment for anxiety and depression.  Again, the trial court had denied Plaintiff’s motion to exclude such evidence, reasoning that Plaintiff had made a claim for loss of enjoyment of life.  The SCOV reasons that there was no abuse of discretion—the Plaintiff placed her before-and-after condition in issue and the evidence was relevant.  Though clinical depression can carry with it a stigma, the SCOV concludes that the evidence wasn’t unduly prejudicial.

As the SCOV puts it, they “reject the balance of plaintiff’s claims in short order.”

Plaintiff took issue with Defendant’s testimony regarding Defendant’s prior work, marriage, and family relationships.  Plaintiff argues “that the sole purpose of the testimony was to elicit improper sympathy for defendant.”  The SCOV reasons that this is proper background information and finds no abuse of discretion. 

Plaintiff’s argument that defense counsel’s statement in closing argument that Plaintiff had to show a “long-standing and permanent injury” was improper is rejected.  Because Plaintiff did not object at trial, we’re in clear error territory.   Though the statement was inaccurate, the SCOV is not willing to find clear error.  And, hey, Plaintiff already got a reversal, right?  The chance that Plaintiff will forget to object at retrial is slim.  At least that’s my thinking . . . .

Finally, Plaintiff argues that the two-page proximate-cause instruction was too long.  Though the SCOV finds “no error in the instruction as given” (other than the foreseeability part we already discussed), the SCOV does “endorse the proposition that where courts can provide clear guidance with concise, ‘plain-English’ instructions that convey the proper legal standards, they should do so.” 

So Plaintiff doesn’t win all her arguments, but she wins an important one and gets another day in court. 

It may not be pretty, but that is what they call a win.