Barber v. LaFromboise

2006 VT 77, 908 A.2d 436, 180 Vt. 150, 2006 Vt. LEXIS 164
CourtSupreme Court of Vermont
DecidedAugust 4, 2006
DocketNo. 05-006
StatusPublished
Cited by10 cases

This text of 2006 VT 77 (Barber v. LaFromboise) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. LaFromboise, 2006 VT 77, 908 A.2d 436, 180 Vt. 150, 2006 Vt. LEXIS 164 (Vt. 2006).

Opinion

Reiber, C J.

¶ 1. Plaintiff in this personal injury case appeals from a judgment, based on a jury verdict, in favor of defendant. Plaintiff asserts, among other claims, that the trial court committed prejudicial error in refusing to instruct that defendant had the burden to prove the essential elements of her affirmative defense of comparative negligence. We agree, and therefore reverse the judgment and remand for further proceedings.

¶ 2. The record evidence may be summarized as follows. In the early evening hours of November 5, 1999, plaintiff Edward J. Barber was proceeding south on Route 105 in the Town of Derby when he struck a vehicle driven by defendant Lucy LaFromboise which was attempting to turn left onto Route 105 from Route 5. Plaintiff testified that he approached the intersection at a speed of about thirty to thirty-five miles per hour (the speed limit was thirty-five miles per hour), but slowed to about fifteen miles per hour because the vehicle immediately in front of him was also slowing and signaling to turn right. Plaintiff recalled that he closed to within ten feet of the vehicle as it turned right, and then proceeded straight ahead when he saw defendant’s vehicle turning left directly across his path. Plaintiff braked but could not avoid colliding with defendant. Plaintiff testified that he had no intention of turning right, and denied having his right-turn signal activated.

¶ 3. Defendant testified that she was traveling east on Route 5 when she came to a stop at a stop sign where the road intersects with Route 105. She recalled activating her left-turn signal while she observed the traffic traveling south on Route 105. Defendant stated that she saw several cars, including plaintiff’s, with their right-turn signals on, assumed that plaintiff intended to turn right, and therefore proceeded into the intersection to turn left, where she was immediately struck by plaintiff’s vehicle.

¶ 4. Defendant further recalled that, after the accident, plaintiff approached her vehicle in an agitated state and began to swear at her. Defendant stated that she smelled alcohol on plaintiff’s breath and decided to stay in her car. .A police officer responding to the scene recalled speaking with both drivers. The officer’s accident report indicated that defendant claimed to have seen plaintiff signaling a right turn, while plaintiff denied that his signal was on. While conversing with plaintiff, the officer smelled alcohol and noted that plaintiff’s eyes were bloodshot, his stance was unsteady, he avoided the officer, and he refused to answer questions about the times of his first and last drinks. [154]*154Plaintiff acknowledged having had two drinks earlier in the day, which he described as scotch and sodas. The officer arrested plaintiff and processed him for driving under the influence.1

¶ 5. Although the officer’s report contained no indication of any injuries to the parties, plaintiff later claimed that the impact from the collision had exacerbated a gastrointestinal condition and hiatal hernia that had been surgically repaired two years earlier. Plaintiff filed a personal injury action against defendant in September 2002. Defendant raised the affirmative defense of comparative negligence. At the conclusion of a three-day trial in October 2004, the trial court denied plaintiff’s motion for judgment as a matter of law on the issue of defendant’s negligence and plaintiff’s comparative negligence. The jury then returned a special verdict, finding that both parties had been negligent, but attributed seventy-two percent of the fault to plaintiff and twenty-eight percent to defendant, so that plaintiff recovered nothing. The court denied plaintiff’s motion for judgment notwithstanding the verdict or new trial. This appeal followed.

I.

¶ 6. On appeal, plaintiff asserts that the trial court erred in refusing to direct a verdict in his favor on comparative negligence, and in failing to instruct on the essential principles of that doctrine. As explained more fully below, we conclude that the court did not err in submitting the issue of plaintiff’s negligence to the jury, but did err in refusing to instruct as to defendant’s burden of proof.

¶ 7. Under our comparative negligence statute, a plaintiff in a negligence action may recover damages if his or her own causal negligence is not greater than that of the defendant. 12 V.S.A. § 1036. Allocation of the respective percentages of causal negligence attributable to the plaintiff and defendant is generally a fact question for the jury, and plaintiff’s recovery is automatically reduced according to the proportional amount of his or her causal negligence. Id.; Gilman v. Towmotor Corp., 160 Vt. 116, 121, 621 A.2d 1260, 1262-63 (1992); Shea v. Peter Glenn Shops, Inc., 132 Vt. 317, 319, 318 A.2d 177, 178 (1974). In determining whether to grant a motion for judgment as a matter of law [155]*155or, alternatively, to submit an issue such as comparative negligence to the jury, the court must view the evidence in the light most favorable to the nonmoving party, excluding the effects of any modifying evidence. Schaad v. Bell Atl. Nynex Mobile, Inc., 173 Vt. 629, 631, 800 A.2d 455, 458 (2002) (mem.).

¶ 8. As noted, defendant’s comparative negligence claim rested principally on evidence that plaintiff exhibited some signs consistent with having been driving while under the influence of alcohol, and testimony that plaintiff’s right-turn signal was activated and that he slowed as he entered the intersection. Defendant asserted that these actions reasonably conveyed plaintiff’s intention to turn right, and that by proceeding through the intersection instead he negligently contributed to the accident. Plaintiff contends, however, that because he generally had the right of way under the applicable rules of the road, defendant was barred as a matter of law from asserting that his actions contributed to the accident.

¶ 9. The trial court properly rejected the contention. Substantial case law supports the principle that a motorist may be found negligent or contributorily negligent for “proceeding straight after signaling a turn” notwithstanding a general right-of-way to proceed. Jackson v. Warrum, 535 N.E.2d 1207, 1211 (Ind. Ct. App. 1989) (rejecting plaintiff’s claim that defendant was barred as a matter of law from asserting plaintiff’s contributory negligence for accident resulting, in part, from plaintiff’s proceeding straight after signaling a turn); accord Pelayo v. Bell, 477 P.2d 537, 539 (Ariz. Ct. App. 1970) (rejecting plaintiff’s claim that trial court erred in failing to direct a verdict in his favor on defendant’s contributory negligence claim where defendant claimed that plaintiff’s right-turn blinker mistakenly led defendant to believe it was safe to turn); Summers v. Weyer, 226 N.E.2d 904, 906 (Ind. Ct. App. 1967) (observing “there can be little doubt that proceeding straight ahead after signaling a turn might constitute actionable negligence”); Dotson v. Cantrell, 458 S.W.2d 10, 12 (Ky. Ct. App.

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Bluebook (online)
2006 VT 77, 908 A.2d 436, 180 Vt. 150, 2006 Vt. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-lafromboise-vt-2006.