Anderson v. Litzenberg
| Decision Date | 01 September 1996 |
| Docket Number | No. 1065,1065 |
| Citation | 694 A.2d 150,115 Md.App. 549 |
| Parties | John ANDERSON, et al. v. Monteith LITZENBERG , |
| Court | Court of Special Appeals of Maryland |
Joseph T. Williams, Baltimore, for appellant Cramaro Tarpaulin Systems, Inc.
James Lee Katz (Marc Seldin Rosen and Scanlan & Rosen, P.A., on the brief), Baltimore, for Appellee.
Argued before HARRELL and SALMON, JJ., PAUL E. ALPERT, Judge (retired), Specially Assigned.
Monteith Litzenberg, appellee, filed suit against John Anderson, David A. Bramble, Inc. (Bramble), and Cramaro Tarpaulin Systems, Inc. (Cramaro), appellants, for injuries sustained in a traffic accident. A jury in the Circuit Court for Cecil County (Cole, J. presiding) awarded appellee $349,400, including $213,000 for lost earning capacity. Appellants Anderson and Bramble base their appeal on an evidentiary ruling and a jury instruction. Appellant Cramaro perches its appellate contention on a different evidentiary ruling and the trial court's denial of a motion for new trial. Due to appellants' failure to preserve most of their appellate contentions for our review, and because those that were preserved are lacking in merit, we shall affirm the judgment of the circuit court.
Appellants Anderson and Bramble present the following questions, reordered and slightly rephrased as:
I. Did the trial court properly instruct the jury concerning spoilation of evidence?
II. Did the trial court err in admitting evidence as to the costs of hiring a replacement to perform work that appellee had personally performed prior to the accident in connection with his part-time residential real estate renovation and rental business?
Appellant Cramaro presents the following issues, rephrased as:
III. Whether the fact that the allegedly defective product was discarded before it could be examined or tested by an expert witness rendered any determination that an alleged design defect or negligence by Cramaro caused or contributed to the accident erroneous.
IV. Whether the trial court abused its discretion in denying Cramaro's Motion for New Trial as to the future loss of earning capacity award.
On 22 April 1993, at approximately 3:00 p.m., Mr. Anderson was driving a dump truck loaded with stone in Cecil County. At the time, Mr. Anderson was acting within the scope of his employment for David A. Bramble, Inc., a highway construction contractor. The truck driven by Mr. Anderson was owned by Bramble. To ensure that debris would not blow off from the truck bed, the truck was equipped with a tarpaulin load covering system manufactured and sold by Cramaro Tarpaulin Systems. This particular tarp system used a series of pulleys, cranks, and steel cables, enabling the operator to crank the tarp toward the front of the truck in an accordion-like fashion so that the truck could be loaded and unloaded. The cranking system could also extend the tarp over the truck bed to cover a load. Cramaro sold the tarp to Bramble approximately one year before the accident occurred. The tarp was installed onto the truck that Mr. Anderson was driving by Bramble personnel.
Mr. Anderson, while heading south on Maryland Route 213, approached a bridge spanning the C & D Canal. At this time, the tarp system was extended to cover the load contained in A state trooper who arrived at the scene after the accident testified at trial that he observed a piece of cable that was a part of the tarp system, noting that the cable was either frayed or broken through. The trooper instructed Mr. Anderson to remove those portions of the tarp system that remained on the road and then to proceed across the bridge to a nearby Department of Motor Vehicles (DMV) parking lot. Mr. Anderson did as he was instructed. Anthony Dimaggio, Director of Truck Operations for Bramble, testified at trial that he met Mr. Anderson at the DMV parking lot. 1 After Mr. Anderson completed his interview with the police, Mr. Dimaggio directed him to return to Bramble's yard in Chestertown.
the truck bed. As the truck began to traverse the bridge, Mr. Litzenberg, a twenty-two year old construction worker, was driving in a pick-up truck behind Mr. Anderson. While on the bridge, the tarp somehow became loose at the back of the truck bed and began to blow out into oncoming traffic. The tarp struck an oncoming vehicle, causing its driver to lose control. The oncoming vehicle crossed the dividing line and crashed, essentially head-on, into Mr. Litzenberg's truck. At the time of the accident, Mr. Litzenberg was employed full-time by his father's construction company and also worked part-time in his own rental property venture.
The tarp and cables remained on the truck until an adjuster for Bramble's insurer inspected the tarp system. After the inspection, Bramble maintenance personnel removed the tarp system and discarded its remnants except for a segment of cable that Mr. Dimaggio had cut off. According to Mr. Dimaggio's trial testimony, he retained that particular segment of cable because he believed that it was the component of the tarp system that had failed. At trial, he ultimately conceded under cross-examination that he might have anticipated the possibility of a claim arising out of the injuries caused by the tarp system's malfunction. At the time that Appellee filed an Amended Complaint in the Circuit Court for Cecil County alleging negligence on the part of appellants Anderson and Bramble and alleging negligence and defective design on the part of Cramaro. In 1996, a jury trial was held from 22 January to 26 January, inclusive. At trial, Mr. Litzenberg's physician testified that, as a result of the neck and back injuries sustained by appellee in the accident, he would not be able to lift more than twenty pounds, and therefore, would be unable to perform construction work. The jury returned a verdict in favor of Mr. Litzenberg and awarded him $349,400 in damages, $213,000.00 of which was compensation for future loss of earnings. Following the circuit court's denial of appellants' post-judgment motions, Anderson, Bramble, and Cramaro timely noted this appeal. Additional facts will be supplied as necessary in our discussion of the various issues.
Bramble discarded the remnants of the tarp system, however, no claims stemming from the 22 April accident were pending.
Appellants Anderson and Bramble (hereinafter collectively referred to as "Bramble" in the Analysis) first contend that the trial court erred by not properly instructing the jury concerning the presumption that arises against a spoliator of evidence. In reviewing the propriety of a trial court's jury instruction, we must determine whether the requested instruction was a correct exposition of the law and whether that law was applicable in light of the evidence before the jury. See, e.g., E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 633 A.2d 485 (1993). The rationale behind the later requirement is that instructions not supported by the evidence have the capacity to lead the jury away from the evidence actually presented.
At the close of all the evidence, the trial court initially instructed the jury concerning Bramble's liability as follows:
Destruction by a party gives rise to an inference or presumption unfavorable to the one who is the spoiler ... if the Appellee objected to the form and substance of that instruction and persuaded the court to give the following new instruction:
intent was to conceal the nature of the defect. So [Number] 1, you have to find [the tarp] was destroyed.... But also you have to have when they did it, the intent was to conceal the nature of a defect. The destruction may be inferred to indicate a consciousness or awareness of the weakness of one's case.
[D]estruction of evidence by a person gives rise to an inference or presumption unfavorable to spoiler, and, secondly, if the intent was to conceal the nature of the defect the destruction must be inferred to indicate a weakness in the case.
This instruction prompted Bramble's counsel to counter with an objection of his own:
I object to the giving of the instruction of the spoilation of evidence instruction on the ground that the evidence in the case was insufficient to support it, in my view. The law requires evidence of a consciousness of guilt of an attempt to conceal before it would be appropriate, and there was none here.
The trial court overruled Bramble's objection to the revised instruction.
In Miller v. Montgomery County, 64 Md.App. 202, 214-15, 494 A.2d 761, cert. denied, 304 Md. 299, 498 A.2d 1185 (1985), Judge Bloom, writing for this Court, explained the effect spoilation of evidence might have on the spoliator's case as follows:
The destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause, but would not in itself amount to substantive proof of a fact essential to his opponent's cause. See In either event, the remedy for the alleged spoilation would be appropriate jury instructions as to permissible inferences....
Maszczenski v. Myers, 212 Md. 346, 129 A.2d 109 (1957). The maxim, Omnia praesumuntur contra spoliatem, "all things are presumed against the spoliator," rests upon a logical proposition that one would ordinarily not destroy evidence favorable to himself. In this case, if the jury were to find that Montgomery County had, in fact, altered the MM3 [a component in the electromechanical system controlling traffic signals] but without fraudulent intent, it could infer therefrom that the MM3 was defective.... If, however, the jury were to find that ...
To continue reading
Request your trial
-
Overstreet v. Shoney's
...App. 240, 243, 214 S.W.2d 55, 56 (1948) (earning capacity refers to the loss of the power to earn); see also Anderson v. Litzenberg, 694 A.2d 150, 161 (Md. Ct. Spec. App. 1997); Restatement (Second) of Torts §§ 924(b) (1979). The extent of an injured person's loss of earning capacity is gen......
-
McQuay v. Schertle
...the party in whose favor the presumption operates is entitled to a jury instruction to effectuate it. See also Anderson v. Litzenberg, 115 Md.App. 549, 564, 694 A.2d 150 (1997)(observing with respect to presumption that arises from party's spoilation of evidence that "party favored by presu......
-
Klauenberg v. State
...301 Md. 294, 328, 483 A.2d 6, 23 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985); Anderson v. Litzenberg, 115 Md.App. 549, 569, 694 A.2d 150, 160 (1997). Because he clarified the nature of his objection as to the broadness of the question and not as to the content......
-
Sugarman v. Liles
...Special Appeals has considered the sufficiency of proof of damages in a claim for lost earning capacity. In Anderson v. Litzenberg , 115 Md. App. 549, 573–77, 694 A.2d 150 (1997), the plaintiff was injured while driving behind a piece of construction equipment owned and operated by the defe......
-
Levels of Metaphor in Persuasive Legal Writing - Michael R. Smith
...A (2d ed. 2001). 73. This illustration was taken from Smith, The Power of Metaphor, supra note 4, at 200 (quoting Anderson v. Litzenberg, 694 A.2d 150, 161 n.11 (Md. Ct. Spec. App. 1997)). 74. See id. at 198-200. 75. These illustrations were taken from id. at 198-99. 76. State v. Vanatter, ......