Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
Brown v. State, 2018 VT 1
Has it really been more than two years since SCOV issued this opinion? Yes. Yes, it has.
In a negligence case, one has to establish liability and damages. Occasionally, there will be a strange sort of verdict where the jury finds liability but no damages. This is one of those cases.
The basic facts are that State Police trooper in a truck rolled into Cheryl Brown’s car and—according to him—bumped her car at about two miles per hour. The trooper said he’d turned around to roll down the window to give his dog some air. Eventually, Brown and the trooper made their way to a parking lot and exchanged insurance information.
Brown filed suit against the State of Vermont (not the trooper) alleging negligence, constitutional claims, and other claims based on what she felt was favorable treatment for the trooper that allowed him to escape prosecution. Before trial, the trial court granted partial summary judgment and dismissed the constitutional claims.
During trial, Brown took issue with many of the court’s rulings. She wasn’t allowed to call the crash a “hit-and-run” or refer to a “conspiracy” on the State’s behalf to give the trooper favorable treatment. She argues the restrictions resulted in a tainted jury, deprived her of due process, and denied her a fair trial.
She also argues that the trial court got several evidentiary rulings wrong. The dog’s presence in the car, she claims, wasn’t disclosed until opening statements and that lack of disclosure was enough to constitute reversible structural error. She also claims the trial court allowed the trooper to introduce photos without proper foundation, and erred when it allowed him to testify about a parking-lot experiment he performed to come up with his two-miles-an-hour estimate.
At trial, Brown testified that the wreck injured her neck, shoulder, and shoulder blade. Here’s where the past comes in. Even though Brown’s treating physician testified that the injuries were related to the wreck, there was a rear-ender five years before with similar injuries. Brown’s doctor testified that he didn’t know about the history. Of course, the defense medical expert testified that there couldn’t have been injury because of the low speed. The defense expert also testified to a lack of any objective medical findings indicating a traumatic injury to Brown from the new wreck. As a lawyer who focuses on personal injury, it’s hard not to rail against the defense doctor here and question why the doc was even allowed to testify as to the likelihood of injury given the alleged not-a-lot-of-property-damage impact, but we’ll save my Monday-morning quarterbacking for another day.
The parties agreed that no aggravation-of-a-pre-existing-condition charge would be given. The jurors sent a question back during deliberations about whether they should be considering aggravation, and again, the parties agreed to stick to new injuries, not any aggravation. The jury finally came back with a “yes” on liability and a “no” on damages. Brown now argues that the trial court improperly considered that aggravation of a pre-existing condition was an issue in the case and the jury erroneously disregarded the evidence that she got new injuries in the wreck in this case.
Thus, Brown argues that the trial court’s bad evidentiary rulings prejudiced her, deprived her of a fair trial, and the trial court abused its discretion when it denied her motion for a new trial.
SCOV starts with Brown’s argument that the trial court messed up when it granted summary judgment to the State and dismissed her constitutional claims. You know the standard by now. Summary judgment flies when the moving party establishes there’s no genuine issue of material fact and that the party is entitled to judgment as a matter of law.
Procedurally, if Brown wanted to make a constitutional claim, it would fall under a federal statute (42 U.S.C. § 1983) in what we lawyers call a “1983 claim.” The State has immunity from these claims and a 1983 claim has to be directed at a particular individual state actor—like the trooper in this instance. Brown, however, sued the State and not the trooper himself. The State is not a “person” under 1983. Accordingly, the federal constitutional claims fail.
Similarly, Brown’s claims under the common-benefit clause of the Vermont Constitution fail. Here, SCOV reasons that even if there was—as Brown alleged—some double standard when it came to prosecuting the trooper for allegedly leaving the scene, there’s no “common benefit” of which she was deprived. She has no interest or stake in the trooper’s prosecution and no standing to pursue this claim. And so, SCOV affirms the trial court’s grant of summary judgment and dismissal on the constitutional claims.
SCOV next turns to the pretrial evidentiary rulings. Here, SCOV reasons, because the trial court had properly granted summary judgment on the constitutional claims, it made sense for the trial court to restrict Brown from throwing around “hit and run,” police “conspiracy,” and invidious “double standard.” Evidentiary rulings are discretionary. Despite Brown’s arguments that the evidentiary rulings resulted in an unfair trial, SCOV concludes there’s no abuse of discretion here.
SCOV reasons that the issues for the jury determination were liability, causation, and damages. The trooper’s conduct after the wreck or a subsequent prosecution (or lack thereof) don’t play into those issues — none of the post-incident conduct had a bearing on the trooper’s negligence or whether that negligence caused Brown’s damages. And so, SCOV concludes that the trial court’s evidentiary rulings were just fine.
The same goes for the restrictions on voir dire and opening statement. Here, SCOV reasons: “The trial court appropriately excluded the evidence[;] discussion of it with potential jurors served no purpose in exposing any potential juror bias, and the trial court properly refused to allow any inquiry into those areas during voir dire.”
SCOV next turns to the late dog disclosure, and Brown’s argument that this was mistrial worthy. SCOV opines: “This claim suffers from a number of shortcomings.” One, Brown didn’t move for a mistrial at the time. SCOV reasons that the wait-and-see approach precludes this claim of error. Two, Brown can’t show prejudice. Brown chose not to depose the trooper. SCOV notes: “The dog could not testify and thus is different from an undisclosed witness.” SCOV also reasons that the introduction of the dog’s presence was an apparent attempt to show that the trooper wasn’t negligent — to give him some excuse. Because the jury found the State liable, SCOV reasons that this shows a distinct lack of prejudice to Brown.
A few other evidentiary rulings get a nod. First, there were three photographs the trooper took on his cellphone. He didn’t have the cellphone anymore. Brown argues that they were hearsay; they weren’t properly authenticated; and they weren’t originals. None of these arguments get very far. First, the hearsay objection was waived. Second, the trooper’s testimony was enough authentication. Third, there was no best-evidence objection because the photos simply illustrated the witness’s testimony.
Second, the court admitted the trooper’s testimony about “his speed experiment, conducted sometime after the accident, during which he attempted to replicate the accident to determine his vehicle’s estimated speed. To do so, [Trooper Matthew] Denis took his foot off the brake of his truck in a parking lot and gauged the truck’s moving speed once it had traveled what he estimated to be the distance between the two cars on that day.” Here, SCOV reasons that this was lay-witness-opinion testimony and admissible.
Finally, Brown argues that the trial court’s exclusion of her 911 call was an error. SCOV reasons that the call was never offered into evidence and that’s the end of it for SCOV.
Finally, SCOV spends a few paragraphs on the trial court’s denial of her motion for a new trial. Essentially, the motion was mostly based on the evidentiary rulings already discussed. Those arguments get no traction. The jury instructions get a little more attention. Here, SCOV reasons that the trial court’s deletion of the aggravation instruction was fine given Brown’s testimony and the attorneys’ agreement to the same. Despite Brown’s argument that the trial court injected aggravation into the case improperly, SCOV reasons that’s not really the case. In fact, SCOV opines that “the record reveals the trial court was assiduous in carrying out its responsibility to ensure both parties were afforded a fair trial in the first instance.”
