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Mary Fagnant v. Kim Foss

March 15, 2013

MARY FAGNANT
v.
KIM FOSS



On Appeal from Superior Court, Lamoille Unit, Civil Division Dennis R. Pearson, J.

The opinion of the court was delivered by: Robinson, J.

Fagnant v. Foss

(2012-030)

2013 VT 16

Supreme Court

September Term, 2012

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. ROBINSON, J. This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant's conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court's instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff's injuries, even though "duty" and "breach" had been established as a matter of law, and we reverse. We consider several other issues raised by plaintiff that are likely to arise on remand and conclude that none would require reversal.

¶ 2. In March 2005, defendant's car collided with the rear-end bumper of plaintiff's car while plaintiff was waiting at a stop light in St. Albans. Defendant explained that her Jeep Cherokee had rolled forward into plaintiff's rear bumper when defendant lifted her foot off the brake while leaning over to retrieve something from the floor on the passenger side of the front seat.

¶ 3. Plaintiff sued defendant for her alleged injuries, and the case was tried before a jury in September 2011. At trial, plaintiff testified that she was stopped at a traffic light when she was suddenly "thrown forward" and back, her head hitting the headrest, as a result of the contact from behind the defendant's car. Plaintiff described ongoing, shooting pain in her head and neck since the accident requiring periodic physical therapy and regular pain-relief injections every three months. Plaintiff testified that as a result of this chronic pain, she has had to cut down on visiting with friends and family, traveling, spending time outside the house, driving in a car, taking care of her grandchildren, and generally leaving the house.

¶ 4. Plaintiff's medical expert opined that the collision caused soft tissue injuries to plaintiff's cervical spine and injured nerves at the back of her neck and head. He testified that her medical treatment to date, including the over $20,000 in medical expenses associated with that treatment, was reasonable, that plaintiff would likely continue to require injection management and periodic physical therapy for her ongoing neck pain, and that her ongoing symptoms would likely be permanent. Plaintiff's treating doctors concurred that the accident caused her injuries.

¶ 5. Defendant conceded that she was negligent and was responsible for causing the accident, and focused her defense on challenging whether plaintiff's claimed injuries were caused by the collision. Defense counsel's cross-examination of plaintiff highlighted plaintiff's prior history of back pain and suggested inconsistencies between plaintiff's testimony concerning her condition in the aftermath of the collision and her own prior statements and actions, the medical records, and the responding officer's testimony. Defendant's medical expert testified that "at most" plaintiff suffered "a minor soft tissue injury" or "whiplash type situation" and that her ongoing symptoms were not related to the accident. Defendant's expert based his opinion on several factors: plaintiff had suffered similar symptoms of head pain before the accident, the emergency room record of plaintiff's visit the day after the accident did not reflect any objective findings of neck injury, and two days after the accident plaintiff's doctor's physical examination of plaintiff's neck was "normal." Defendant's expert opined that if plaintiff had suffered an injury severe enough to result in symptoms four years later, she would not have had a normal objective examination two days after the accident; there would have been signs of tissue damage at that point.

¶ 6. After the close of evidence, plaintiff moved for "judgment as a matter of law on negligence and liability," leaving for the jury the issues of causation and damages. On the basis of defendant's concession with respect to her breach of a duty, the trial court granted plaintiff's motion for judgment with respect to the issues of duty and breach, reserving the questions of proximate cause and damages for the jury.

¶ 7. The court's proposed jury instructions included the following paragraph at the end of the proximate cause instruction:

The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.

At the charge conference, plaintiff objected to this portion of the instruction arguing that it was potentially misleading because it "suggests that in order to find medical causation, . . . the jury would have to . . . determine that . . . the kind of injury would be reasonably foreseeable from a . . . low speed MVA." Plaintiff argued that the hurdle inherent in a low impact case was already high, "without injecting the possibility that individual jurors may say, 'Well, I wouldn't have expected this.' "

¶ 8. Defendant described the instruction as "a statement of the concept of foreseeability as it relates to legal cause," noted that this was the only part of the instruction addressing foreseeability, and argued, "that makes it all the more important that it be part of the instruction." Plaintiff disagreed with defendant's statement that "legal cause" included the foreseeability of injury. The court agreed to consider the question.

¶ 9. The court instructed the jury before closing arguments. In particular, the court instructed:

I charge you as a matter of law that Defendant Kim Foss was negligent and violated a reasonable duty of care which she owed to the Plaintiff under the circumstances; and also, that Defendant's negligence was the cause of her vehicle coming into contact with Plaintiff's vehicle.

The court then explained that defendant disputed whether the accident "was the cause of any of [plaintiff's] injuries, harm and damages now claimed" and "the amount of the monetary damages and compensation" to be awarded.

¶ 10. Having charged as a matter of law that plaintiff had satisfied the first two requirements for negligence liability--duty and breach--the court instructed the jury on proximate cause, stating:

An injury or harm is proximately caused by the actions or conduct of another person when it appears from all the evidence that those acts or omissions played a substantial part in bringing about or actually causing the harm or injury, and the injury or harm was either a direct result or a reasonably probable consequence of those acts or omissions

The instruction also discussed the concept of "multiple proximate causes" in the context of pre-existing medical conditions. The court then concluded the instruction on proximate causation exactly as it had initially proposed, including the instruction that "injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable."

ΒΆ 11. The court gave the jury a written copy of the instructions to use during deliberations. After the court instructed the jury, plaintiff renewed his objection to the inclusion of the sentences relating ...


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