Bazzano v. Killington Country Village, Inc.

• Decision Date: 14 May 2003
• Docket Number: No. 02-234.,02-234.
• Citation: 830 A.2d 24
• Court: Vermont Supreme Court
• Parties: Jill BAZZANO v. KILLINGTON COUNTRY VILLAGE, INC.

830 A.2d 24

Jill BAZZANO v. KILLINGTON COUNTRY VILLAGE, INC.

No. 02-234.

Supreme Court of Vermont.

May 14, 2003.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and FREDERIC W. ALLEN, C.J. (Ret.) Specially Assigned.

ENTRY ORDER

¶ 1. Plaintiff in this personal injury action appeals from a judgment based on a jury verdict in favor of defendant. Plaintiff contends the court erred in: (1) allowing testimony concerning the absence of prior accidents; (2) admitting a physician's report into evidence; (3) instructing the jury on plaintiff's burden of proof and comparative negligence; and (4) instructing on the effect of a safety statute violation. We affirm.

¶ 2. In February 1996, plaintiff Jill Bazzano and a friend went to the Back Behind Saloon Restaurant in the town of Bridge-water after a day of skiing in Killington. Plaintiff and her friend were seated in the back of the restaurant, in the "caboose" section. Plaintiff testified that she lost her footing as she descended the caboose's stairway on the way to the restroom. Because there was no handrail, she claimed that she reached up for the support pole overhead and wrenched her right shoulder, causing immediate and severe pain. After returning to her table and completing her meal, plaintiff left the restaurant and returned home to Connecticut. The next day, plaintiff went to a hospital emergency room and was diagnosed with a torn rotator cuff. She subsequently underwent two surgeries on her shoulder, followed by two intense courses of physical therapy. Plaintiff filed a negligence action against defendant Killington Country Village, Inc. d/b/a The Back Behind Saloon Restaurant. After a four day trial, the jury returned a special verdict in favor of defendant. The jury found plaintiff fifty-one percent negligent and defendant forty-nine percent negligent, resulting in no award of damages to plaintiff. 12 V.S.A. § 1036. This appeal followed.

¶ 3. Plaintiff first contends the court erred in allowing defendant to present testimony that no prior accidents had occurred on the stairs in order to prove the absence of a defect under Mobbs v. Central Vermont Ry., 155 Vt. 210, 583 A.2d 566 (1990). In Mobbs, we held that "[g]enerally, when the party seeking admission of the evidence can show substantial similarity of conditions, evidence of no prior accidents is admissible to show `(1) absence of the defect or condition alleged, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of knowledge (or of grounds to realize) the danger.'" Id. at 226-27, 583 A.2d at 575.

¶ 4. Here, the restaurant's prior owner of twenty-five years and two long-time employees all testified that they had no knowledge of anyone falling on the stairs prior to the plaintiff's accident. Plaintiff argues that the testimony was unreliable to establish the absence of prior accidents, and that Mobbs requires a documented safety record for such evidence to be admissible. Although Mobbs involved railroad safety records, nothing in the opinion requires documented records to the exclusion of the testimony of an owner or employee based upon his or her recollection. Indeed, Mobbs relied upon Erickson v. Walgreen Drug Co., 120 Utah 31, 232 P.2d 210 (1951), in which the Utah Supreme Court concluded that the trial court erred in excluding "testimony that approximately 4,000 to 5,000 persons entered the appellant's store every day but that during the fifteen year period prior to the respondent's fall, the management had never received a single complaint or report about anyone slipping." Id. at 214; see also Evans v. State, 135 Idaho 422, 18 P.3d 227, 233 (Ct.App.2001) (relying on Mobbs to uphold admissibility of a swimming facility manager's testimony that he could not recall more than four prior accidents resulting from the 10-meter diving platform).

¶ 5. The reliability and relevance of the testimony was for trial the court's determination in the first instance. "Trial courts have broad discretion in ruling on the relevance and admissibility of evidence, reversible only for abuse of that discretion." Southface Condo. Owners Ass'n, Inc. v. Southface Condo. Ass'n, Inc., 169 Vt. 243, 249, 733 A.2d 55, 60 (1999). We cannot conclude that the trial court abused its discretion in admitting the evidence. There was testimony that the stairs remained in the same condition since 1975. The former owner estimated that he had walked up and down the stairs thousands of times and had never fallen or heard of any prior accidents. The former employees' testimony was to the same effect. Accordingly, we discern no abuse of discretion in admitting the testimony. ¶ 6. Plaintiff also contends the testimony should have been excluded because it was irrelevant, confusing, and prejudicial. The trial court correctly ruled, however, that the absence of prior accidents was relevant and admissible to show an "absence of the defect or condition alleged." Mobbs, 155 Vt. at 226,583 A.2d at 575. Plaintiff argues that the evidence was unduly confusing because it suggested that the defendant's liability was negated by the lack of notice of a dangerous condition. This argument rests on plaintiff's contention that the absence of a railing violated a safety code provision, which established negligence per se. The premise of the argument is flawed, however, as we have held that a violation of a safety statute does not demonstrate negligence per se. "Even if we could agree that plaintiffs showed that defendants violated the statutes, we cannot agree that this violation is negligence per se." Dalmer v. State, 174 Vt. ___, ___, 811 A.2d 1214, 1221 (2002). Rather, "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). Finally, plaintiff argues that the testimony was unduly prejudicial, warranting reversal. "The court has broad discretion in determining whether the probative value of relevant evidence outweighs any prejudicial effect." Ulm v. Ford Motor Co., 170 Vt. 281, 290, 750 A.2d 981, 989 (2000). Plaintiff has not carried the heavy burden of showing such an abuse of discretion.

¶ 7. Plaintiff also contends the court erred in admitting a medical report by Dr. Beebe, an orthopedic surgeon who examined plaintiff sixteen days prior to the accident. The report indicated that plaintiff had been referred to him by her physician for knee pain, and stated that plaintiff had complained of knee pain and difficulty climbing and descending stairs. The court initially admitted the evidence as a prior inconsistent statement. Plaintiff contends the report was inadmissible hearsay and ultimately was not limited to its admission as an inconsistent statement. "The trial court is accorded wide latitude in making such evidentiary rulings, and we will not disturb its decision absent a showing of abuse of discretion." Mears v. Colvin, 171 Vt. 655, 658, 768 A.2d 1264, 1268 (2000) (mem.). Plaintiff has not demonstrated that the court abused...