Berrera v. Hyundai Motor America Corp.

• Decision Date: 13 May 1993
• Docket Number: No. 92-CA-2108,92-CA-2108
• Citation: 620 So.2d 890
• Parties: Roxanne Mareno BERRERA, et al. v. HYUNDAI MOTOR AMERICA CORPORATION, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 890

620 So.2d 890

Roxanne Mareno BERRERA, et al. v. HYUNDAI MOTOR AMERICA CORPORATION, et al.

No. 92-CA-2108.

Court of Appeal of Louisiana Fourth Circuit.

May 13, 1993.

Charles J. Ballay, Belle Chase, and Brian J. Waid, Buras, for plaintiffs-appellants.

Michael T. Pulaski, Robert W. Maxwell, Pulaski, Gieger & Laborde, New Orleans, for defendants-appellees.

Before SCHOTT, C.J., and BYRNES and PLOTKIN, JJ.

BYRNES, Judge.

On November 14, 1988 a Hyundai Excel being driven by Louella Mareno in Tangipahoa Parish, left the road and struck a tree. Louella Mareno was killed. Her daughter Roxanne Berrera and her daughter-in-law Mary Mareno, as well as their children, Wallie Sounier, Daniel Mareno, and Jordan Mareno were passengers in Louella's vehicle. All suffered varying degrees of injury. This suit was filed by or on behalf of all of said passengers, including the minor children, along with Roy Mareno, Jr., James Mareno, and Virginia Mareno as Louella's surviving children.

On September 19, 1991 a twelve person jury, by a 9-3 majority, determined that plaintiffs did not prove there was a defect in the subject vehicle and returned a verdict in favor of defendants. Plaintiffs' subsequent motions for judgment notwithstanding the verdict and, alternatively for a new trial, were denied. All plaintiffs joined in this appeal. We affirm.

The Tangipahoa parish road was in very poor condition at the time of the accident and had numerous potholes. Roxanne Berrera cautioned her mother that the road "was terrible" before they reached the scene of the accident. Ms. Berrera claims the vehicle hit one large pothole on the side of the road and, as her mother tried to steer around a second pothole, she lost control of the vehicle. Physical evidence indicated that Louella Mareno made excessive steering maneuvers after striking a pothole, lost control of the car, and hit a large pine tree. The physical evidence also indicated that none of the vehicle's occupants were wearing seat belts. Testimony from a physician/biomechanics expert, Dr. James Raddin, indicated that Louella Mareno sustained her fatal injuries when her chest impacted the steering column immediately after impact with the tree. Louella Mareno's seat was adjusted in its forward-most position. Thereafter, Mary Mareno, the unrestrained rear seat passenger, struck the back of the driver's seat, causing damage to the seat and seat track. Plaintiffs' expert estimated the car's speed at 27 m.p.h. at impact with the tree; the defendant's expert estimated the speed at 32 1/2 m.p.h.

I. The trial court properly responded to the jury's pre-verdict questions. ¹

During deliberations the jury sent a note to the Court asking:

"How to answer # 1 if we find both parties equally negligent?"

The jury was brought back in and instructed by the Court as follows:

All right. I have received a message from you in the form of a question which states, "How to answer No. 1 if we find both parties equally negligent." I am bound to respond to you that question No. 1 does not address negligence on the part of the plaintiffs. The questions are set up so that there is a progression from one question to the next if you continuously answer the question in the affirmative. Question No. 1 deals only and solely with whether or not the automobile was defective, that is, unreasonably dangerous to normal use. So, you have to answer that question in those terms.

And if your answer is "Yes" then you move on to No. 2. If not, then you go to the end and answer the questions dealing with redhibitory defect. You do not and should not answer it in terms of or in connection with any other question. It stands by itself and must be answered in terms of what it specifically asks. Now does that answer your question?

Plaintiffs argue that in delivering this instruction the trial court committed reversible error by failing to notify counsel for plaintiffs of its intended instruction and failing to afford plaintiffs' counsel an opportunity to object to this instruction, all contrary to LSA-C.C.P. art. 1796 and Comment B thereunder. Plaintiffs raise this argument for the first time in this court. It was not raised at the trial. Nor was it raised in post trial motions. Plaintiffs' "Memorandum In Support of Plaintiffs' Motion For A Judgment Notwithstanding The Verdict and, In the Alternative, A New Trial" makes no mention of this alleged lack of notification of intended instruction and lack of opportunity for objection, even though this jury instruction was the focus of the memorandum. Plaintiffs followed up with a supplemental memorandum which also failed to raise these issues.

Plaintiffs base their argument on negative inference, i.e., they contend, in effect, that where the record is silent or unclear we should presume the trial court did the wrong thing. To the contrary, where the record is silent we will presume that plaintiffs failed to object because they had no objection to make at that time.

We hold that, in the absence of a timely and convincing showing that the record is in error, that statements and objections that do not appear in the record were never intended to be made. Plaintiffs have made no such showing and never attempted to raise the issue at trial or in post trial motions in the lower court.

We adopt the defendants' version of these events which is supported in key parts by the record, and where the record is unclear or silent the inferences and conclusions drawn by defendants are supported by reason, logic and the law:

The bailiff passed the note regarding Jury Interrogatory No. 1 to Judge Roe while the jurors remained in the deliberation room. The question was read to counsel, and significant discussion was conducted. The Court's proposed supplementary instruction was presented to counsel prior to the jury being brought back to the courtroom. All counsel were aware of the Court's proposed instruction and expressed no concern with its content. No objection was made by plaintiffs' counsel before or after the instruction. A cursory review of the record will indicate that counsel for plaintiffs did not hesitate to make objections during trial. The suggestion on appeal that they were precluded an "opportunity" to object is without merit. The suggestion that Mr. Ballay "had to be called out of another trial ..." and was somehow unaware of the court's activity is not a valid issue. Mr. Ballay did leave the courtroom on several occasions but advised:

I have another proceeding downstairs. If there is anything regarding anything unusual, someone can call me or I would allow Mr. Wade to speak on my behalf.

No action was taken by the court without Mr. Wade being in the courtroom. This is uncontested. Moreover, defendants contend that both Mr. Wade and Mr. Ballay were present when the supplementary instruction was given. As Mr. Ballay's presence is specifically noted at those points in the record immediately preceding and following the time in question; and the record makes no mention of his departure from the courtroom; we will presume he was present when defendants contend he was. Therefore, both had full opportunity to object to the court's supplementary instruction. The fact that they failed to object on the record waives their right to further consideration on appeal. It is counsel's affirmative duty to place objections on the record, and the suggestion that the record is "void of any opportunity to object" is without merit.

La.C.C.P. art. 1793(C) states that "[a] party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection." A party's failure to timely object, for the record, with specificity, constitutes a waiver of the objection. Trans-Global Alloy Ltd. v. First Nat. Bank of Jefferson Parish, 583 So.2d 443, 448 (La.1991); Boehm v. Bienemy, 508 So.2d 159 (La.App. 4 Cir.1987). Moreover, the right to attack on appeal an allegedly improper instruction given after the case has been submitted to the jury must be preserved by an objection made at the time the supplemental instruction is given. Duerden v. PBR Offshore Marine Corp., 471 So.2d 1111, 1113 (La.App. 3 Cir.1985), writ denied, 476 So.2d 355 (La.1985), citing Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (La.App. 3 Cir.1962). The policy considerations underlying these rules are obvious. As the court stated in Renz, "Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first time as a ground for setting aside the jury verdict reached by the expensive and cumbersome method of a jury trial."

In any event, plaintiffs' objection is without merit and would have made no difference in the outcome of the case. Plaintiffs submit that the supplementary instructions were substantively deficient because the court "ought to have reinstructed the jury relative to manufacturing defect, design defect, and unreasonably dangerous." The record indicates, however, that the court properly followed the discretionary provisions of LSA-C.C.P. art. 1796(C) which provide, when the jury desires information on a point of law, that the Court "... may recall the jury after they have retired:

(1) To correct or withdraw an erroneous instruction.

(2) To clarify an ambiguous instruction.

(3) To inform the jury on a point of law which should have been covered in the original instructions.

(4) To give such further instructions as may be appropriate." [Emphasis added]

Consequently, the only inquiry on this appeal is whether the trial court, in its discretion, properly gave "such further instructions as may be appropriate." We find the action taken by that court appropriate.

The trial judge's instruction was thorough and directed the jury to answer the...