Schaad v. Bell Atlantic, NYNEX, Mobile, Inc.
Annotate this Case
Schaad v. Bell Atlantic NYNEX Mobile, Inc. (2001-004); 173 Vt. 629;
800 A.2d 455
[Filed 15-Apr-2002]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2001-004
JANUARY TERM, 2002
Peter Schaad } APPEALED FROM:
}
}
v. } Bennington Superior Court
}
Bell Atlantic NYNEX, Mobile, Inc. }
New England Telephone and Telegraph } DOCKET NO. 58-2-99 Bncv
d/b/a Bell Atlantic-Vermont }
Central Vermont Public Service Corp } Trial Judge: Richard W. Norton
In the above-entitled cause, the Clerk will enter:
Plaintiff Peter Schaad, while riding on his all terrain vehicle (ATV),
struck a utility line and brought an action for negligence against
defendants Central Vermont Public Service (CVPS) and Bell Atlantic NYNEX
Mobile, Inc. (Bell Atlantic). Following a jury verdict in favor of
defendant CVPS and judgment as a matter of law in favor of defendant Bell
Atlantic, plaintiff appeals claiming the Bennington Superior Court failed
to properly instruct the jury, erroneously dismissed the case against Bell
Atlantic, committed reversible error in prohibiting plaintiff's
cross-examination of a CVPS employee regarding statements of CVPS's
attorney, and erred in refusing to admit certain of plaintiff's medical
records. We affirm.
On the night of February 21, 1997, a storm brought down the top of a
tree in Bennington, Vermont, falling across utility lines owned by CVPS
and Bell Atlantic. The downed lines caused a power outage at a home in
Bennington; CVPS was notified, and two CVPS employees were sent to find
the cause of the outage and restore power. When they arrived, the CVPS
employees discovered that a tree top had pinned down both the CVPS and
Bell Atlantic lines. The CVPS employees removed the tree top from the
utility lines, releasing both lines. They then rehung the CVPS line, but
left the Bell Atlantic line sagging.
Approximately one month later, on March 21, plaintiff Peter Schaad
road his ATV down an access road adjoining the property on which he was a
caretaker. Plaintiff rode to his mailbox and after retrieving his mail
cut through a neighboring cornfield. As he rode to a gap between telephone
poles to get back to the access road, plaintiff struck the sagging Bell
Atlantic line, injuring his neck. Plaintiff brought an action for
negligence against CVPS and Bell Atlantic, and the case was tried by a
jury on August 18, 2000. During trial, Bell Atlantic moved for judgment as
a matter of law. The trial court granted Bell Atlantic's motion,
dismissing the case against it. The jury returned the verdict in favor of
CVPS.
Plaintiff brings this appeal claiming the trial court erred in: (1)
failing to instruct the jury on Restatement (Second) of Torts § 324A; (2)
granting Bell Atlantic's motion for judgment as a matter of law,
dismissing Bell Atlantic as a party and later denying plaintiff's motion
for a new trial on the same issue; (3) forbidding plaintiff from
cross-examining a CVPS employee regarding a statement by CVPS's attorney;
and (4) refusing to admit certain medical evidence.
Plaintiff's first claim of error is that the trial court failed to
instruct the jury using the Restatement of Torts (Second) § 324A (1965).
Section 324A provides
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to
liability of the third person for physical harm resulting from
his failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care increases the
risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or
the third person upon the undertaking.
Plaintiff contends that when CVPS employees removed the fallen tree top,
releasing the downed lines, they provided a service to Bell Atlantic and
that because they failed to use reasonable care, this service created an
increased risk of harm to third persons. Plaintiff argues that CVPS
employees came upon a dangerous situation and made it worse by releasing
the Bell Atlantic phone lines just enough to leave them sagging several
feet off the ground. We reject plaintiff's arguments first, because
plaintiff waived this objection, and second, because even if the objection
had been properly made, there is no evidence to suggest that CVPS's
actions were in any way a gratuitous service to Bell Atlantic, or that
CVPS's actions increased the risk of harm to third parties.
A party may appeal the trial court's decision not to give an
instruction to the jury only where, before the jury retired to consider
the verdict, that party objected to the failure to charge, stating with
particularity the matter of objection and its grounds. V.R.C.P. 51(b).
The purpose of this rule is to allow the trial judge a final opportunity
to correct the charge, before the jury retires with the case. Winey v.
William E. Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 750 (1993).
Plaintiff's objection to the court's failure to charge § 324A lacked
particularity. Plaintiff raised his objection before the jury retired
with the instructions. Plaintiff stated merely, "we'd except for the lack
of charge under restatement 324A," and when the Court began to discuss the
reasoning of its earlier ruling on that objection, plaintiff's counsel
quickly cut off that discussion stating that the objection was "[j]ust for
the record." This objection offered no grounds for the court to consider
in making its ruling. Further, where, as in this case, the court chooses
not to adopt an instruction proffered by a party, the party must not
merely object to the lack of its proffered charge but must point out to
the court its particular objection to the charge as it stands without the
proffered
instruction. See Trombley v. Southwestern Vt. Med. Ctr., 169 Vt. 386, 395,
738 A.2d 103, 110 (1999) (objection is not preserved for appeal where
party objected to failure to give his suggested charge but not to charge
as given to jury); Charter v. Cent. Vt. Hosp., 155 Vt. 230, 236, 583 A.2d 889, 892 (1990) (court's "failure to adopt text proffered by a party . . .
does not constitute reversible error as long as the instruction actually
delivered was without error"). Plaintiff failed to give grounds for his
objection and failed to state with particularity the error of the court's
negligence instruction as given and thus, has failed to preserve the issue
for appeal. See V.R.C.P. 51(b) (party must state distinctly its objection
and the grounds for it).
In any event, the court's decision not to include § 324A was not
error. Plaintiff failed to provide sufficient evidence to suggest: (1)
that CVPS's efforts rendered service to Bell Atlantic; (2) that CVPS
recognized its actions as protecting third persons; (3) that CVPS had a
duty to either Bell Atlantic or the plaintiff; or (4) that CVPS's actions
in any way increased the risk of harm to plaintiff. On the contrary, the
evidence suggests that CVPS performed nothing more than a service necessary
to restore power to its own customers, and that the Bell Atlantic lines
were in no more of a dangerous position when CVPS employees left the scene
than when they arrived. The court's failure to include § 324A in the
instructions was not error where there was no evidence to suggest that the
instruction was applicable to the case at hand.
Plaintiff asserts that the trial court erred in granting defendant
Bell Atlantic's motion for judgment as a matter of law, and subsequently
denying plaintiff's motion for a new trial on the same issue. We review a
judgment as a matter of law de novo using the same standard as the trial
court - "the evidence is viewed in the light most favorable to the
nonmoving party, and we exclude the effects of any modifying evidence."
Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment
as a matter of law is appropriate where a party's claims hold "no legally
sufficient evidentiary basis for a reasonable jury to find for the [the
nonmoving] party." Id. (quoting V.R.C.P. 50(a)(1)).
Here, the trial court granted Bell Atlantic's motion for judgment as a
matter of law premised on plaintiff's failure to establish that Bell
Atlantic had notice of the downed wires. A long standing principle of
Vermont law is that a claim under the ordinary theory of negligence must
establish that the defendant had either knowledge or foresight, or
reasonably could be chargeable with knowledge. LaFaso v. LaFaso, 126 Vt.
90, 93, 223 A.2d 814, 817 (1966). A utility is charged with a general
duty to safeguard the public from dangerous conditions to the extent that
it must exercise reasonable care to correct or remove causes of danger,
Ives v. Cent. Vt. Pub. Ser. Corp., 134 Vt. 67, 69, 349 A.2d 878, __
(1975), but this duty does not extend to a broad knowledge at all times of
the conditions of each of its lines. Hence, plaintiff's claims of
negligence against Bell Atlantic hinged on the phone company's actual
knowledge, at any point before plaintiff's injuries, that the wires in
question were downed.
The plaintiff's lack of evidence on this point is best illustrated by
reference to plaintiff's opening statement at trial in which plaintiff
inferred that CVPS was negligent by asserting that CVPS had not informed
Bell Atlantic that its wires were down. A change in strategy during the
course of trial led plaintiff to suggest that CVPS employees might have
initiated a contact with Bell Atlantic,
but there was insufficient evidence to support a claim that Bell Atlantic
knew, or could have reasonably been charged with knowing, the wires that
injured plaintiff were down. Where there is no basis by which a
reasonable jury could find for the nonmoving party, it is the duty of the
court to grant a motion for judgment as a matter of law. V.R.C.P.
50(a)(1). The trial court did not err in granting Bell Atlantic's motion
for judgment as a matter of law, nor in denying plaintiff's motion for a
new trial on the same issue, and accordingly dismissing Bell Atlantic as a
party to the case.
Plaintiff contends that the trial court erred in prohibiting him from
cross examining a CVPS employee regarding a written trial memorandum
authored by CVPS's attorney that discusses whether CVPS, as a normal
practice, contacted utility companies regarding downed lines. The trial
court's determination of whether evidence is relevant will not be overruled
absent an abuse of discretion, nor is an erroneous evidentiary ruling
grounds for reversal unless it affects a substantial right of the party
seeking to appeal the judgment. Greene v. Bell, 171 Vt. 280, 284, 762 A.2d 865, 869 (2000).
Plaintiff sought to admit this written trial memorandum as an
admission of a party opponent. Under V.R.E. 801(d)(2)(D), a statement
which would normally be inadmissable as hearsay is admissible where the
statement is made by the party or their agent, in the scope of the agency,
and is offered against them. The CVPS employee against whom plaintiff
sought to introduce the evidence had testified that CVPS would typically
only call Bell Atlantic regarding a downed lined if "they present a
specific hazard." The trial memorandum plaintiff sought to introduce did
not necessarily contradict this discussion and was written in the context
of a hypothetical. The memo stated:
If CVPS did undertake, gratuitously, to notify Bell Atlantic of
the downed phone line in question the next issues are whether
this created a duty . . . and, if so, whether it exercised this
duty with reasonable care. . . . CVPS did not undertake a duty
of Bell Atlantic: it did not undertake to fix Bell Atlantic's
line . . . . All CVPS did was place a phone call and even if
this created a duty, CVPS exercised reasonable care in doing so.
A phone call in this type of situation is industry practice, and
is by any measurement a quick and reliable way of informing Bell
Atlantic of the situation.
(P.C. Appendix, Exhibit 22). The trial court denied the admission of this
evidence because the trial memorandum was written to address a
hypothetical, had little probative value, and tended to confuse the jury.
The trial court was well within its discretion to limit the scope of cross
examination, and where the evidence is marginally probative and tends to
introduce "remote, collateral considerations that could confuse the jury,"
it is appropriately excluded. Contractor's Crane Serv. Inc. v. Vt. Whey
Abatement Auth., 147 Vt. 441, 450, 519 A.2d 1166, 1173 (1986).
Finally, plaintiff appeals the trial court's denial of his motion for
a new trial based on his claim that the court erred in refusing to admit
medical records concerning treatment from medical providers who would not
be testifying at the trial. The medical evidence plaintiff sought to
introduce went directly to damages. The jury found that CVPS did not act
with negligence and therefore never
proceeded to determine damages. Even assuming the trial court's failure to
admit the evidence was error, there is no basis for granting a new trial.
V.R.C.P. 61 ("No error in . . . the exclusion of evidence . . . is ground
for granting a new trial . . . unless refusal to take such action appears
to the court inconsistent with substantial justice").
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Theresa S. DiMauro, District Judge
Specially Assigned
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