Cooper v. Burnor

750 A.2d 974, 170 Vt. 583, 1999 Vt. LEXIS 409

• Court: Supreme Court of Vermont
• Decided: November 23, 1999
• Docket: 98-133
• Status: Published

Opinions

Plaintiff Germaine Cooper filed suit in Franklin Superior Court against defendant David Burnor for damages resulting from an automobile accident. Plaintiff appeals the judgment, claiming that the court erred by (1) excluding, as a discovery sanction, plaintiff’s testimony regarding a measurement that contradicted defendant’s testimony; (2) failing to instruct the jury that a violation of a motor vehicle safety statute constitutes a rebuttable presumption of negligence; and (3) failing to instruct the jury on safety rules regarding stopping on the wrong side of the highway. We affirm.

The accident occurred at dusk in the Fall of 1993. Plaintiff was heading west on Route 36 in the Town of Fairfield when defendant, traveling eastbound, crossed over to the opposite side of the road in order to deliver a paper to a residential mailbox. A third motorist, Ann Serró, who was following defendant in the eastbound lane remained in her lane of travel. As plaintiff drove west, she approached a hill, at the top of which she saw defendant’s vehicle facing her, stopped alongside her lane of the road. Plaintiff swerved to avoid defendant’s vehicle and lost control, entering the eastbound lane and colliding with Serro’s vehicle. Plaintiff sustained injuries.

The jury found plaintiff slightly more negligent than defendant, and consequently judgment was entered for defendant. See 12 VS.A. § 1036 (plaintiff cannot recover under comparative negligence statute when plaintiff’s negligence exceeds defendant’s negligence). This appeal followed.

I.

Plaintiff first contends that the court improperly excluded plaintiff’s testimony as to her measurement of the distance between the mailbox and the edge of the paved highway which contradicted defendant’s testimony. The evidence differed on the factual issue of where defendant’s vehicle was located when plaintiff took evasive action. The state trooper who investigated the accident testified that there was sufficient room between the mailbox and the edge of the road for a vehicle the size of defendant’s to stop clear of the lane of travel. Defendant testified that on the day of the accident the mailbox was located eight feet from the edge of the highway pavement and his vehicle was only five and one-half to six feet wide. Defendant maintained that there was ample room for his vehicle to be completely removed from the pavement or nearly so at the time of the accident.

During her testimony, plaintiff stated that she had measured the distance from the mailbox to the edge of the pavement. Defense counsel objected to plaintiff’s testimony, noting that there was no disclosure during discovery of a witness who had investigated the accident other than the state trooper. Plaintiff proposed to testify that, based upon her measurement, the mailbox was less than three feet from the edge of the highway pavement, directly contradicting defendant’s testimony of eight feet. The court sustained the objection.

Plaintiff asserts that the court abused its discretion and unfairly prejudiced plaintiff’s case when it excluded the testimony as a discovery sanction. We find no abuse of discretion.

At trial, when defense counsel objected to plaintiff testifying about her measurement, plaintiff’s counsel offered to prove “that there’s less than three feet between where a car would pull up and the edge of the pavement,” noting that plaintiff’s testimony directly contradicted defendant’s testimony that the mailbox was six to eight feet from the edge of the road. The court stated that “You’ve got to disclose [during discovery] that there was some other measurements in the investigation.” At oral argument, plaintiff’s counsel disclosed that plaintiff measured the spot after defendant testified at trial and thus plaintiff’s testimony was offered in rebuttal. The timing of plaintiff’s measurement, however, was not mentioned at the time of the ruling at trial.

It was within the trial court’s discretion to exclude the testimony assuming, as it did, that the evidence was acquired early on in the preparation for trial and not disclosed in discovery. Thus, the court’s ruling was not error.

II.

After the jury instructions on the legal standard of care, plaintiff’s counsel objected, arguing that the jury was not instructed that, if it found a violation of the safety statute by either party, it created a rebuttable presumption of negligence.

Proof of the violation of a safety statute creates a prima facie case of negligence. Bacon v. Lascelles, 165 Vt. 214, 222, 678 A.2d 902, 907 (1996). A prima facie case of negligence raises a rebuttable presumption of negligence and shifts the burden of production to the party against whom the presumption operates. See id. When the party produces evidence that fairly and reasonably tends to support a finding that the presumed fact does not exist, the presumption disappears. See id.

Here, defendant’s testimony was sufficient to show that there was adequate space for his vehicle to be off the road and out of plaintiff’s lane as she approached. Defendant met his burden of production, and the court was correct in instructing the jury without making reference to the presumption. See V.R.E. 301(c)(3) (court must not instruct jury on presumption of negligence when defendant has met his burden of production); Favreau v. Miller, 156 Vt. 222, 233, 591 A.2d 68, 75 (1991).

III.

Finally, plaintiff claims that the trial court failed to instruct the jury on the safety rules pertaining to stopping on the wrong side of the highway when the jury raised the question during deliberations. The jury sent this written question to the court: “[Wjhat law if any says about a vehicle on the wrong side of the road facing traffic either partially in the road or on the shoulder?” In response, the court read several safety statutes to the jury for their consideration, including: “[N]o person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway,” quoting from 23 VS.A. § 1101(a). The court then stated that “[tjhere is no safety rule or guide concerning the stopping on the wrong side facing or stopping on the side of the road facing traffic, but you in your own determination might determine what a reasonably prudent person would do under such circumstances.” Plaintiff objected to the court’s instruction that there was no safety rule prohibiting someone from stopping on the wrong side of the road.

Plaintiff’s claim of error is without merit. The court reiterated to the jury the relevant safety statutes and correctly stated that there was no statute directly on point pertaining to a vehicle stopped on the wrong side of the road. We conclude that the charge, when read in its entirety, accurately communicated the pertinent legal principles to the jury and was not misleading.

Affirmed.