Broughton v. Proulx
| Decision Date | 18 August 2005 |
| Docket Number | No. 2004–449.,2004–449. |
| Citation | 152 N.H. 549,880 A.2d 388 |
| Court | New Hampshire Supreme Court |
| Parties | Paul BROUGHTON v. Dennis PROULX. |
Kazan & Shaughnessy, PLLC, of Manchester (Brian C. Shaughnessy on the brief and orally), for the plaintiff.
Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Gail E. Bakis on the brief, and Mr. Burt orally), for the defendant.
The defendant, Dennis Proulx, appeals from a jury verdict in the Superior Court (Abramson, J.) awarding the plaintiff, Paul Broughton, $100,000 in damages. He contends that the trial court erred: (1) by failing to sustain his objection to, and instruct the jury to disregard, comments made by opposing counsel during his opening statement; (2) by instructing the jury on the applicability of a City Code; and (3) in its instruction to the jury on the issue of comparative fault. We affirm.
The jury could have found the following facts. The defendant owned a twenty-seven unit apartment building in Manchester, where the plaintiff lived.
On December 9, 2001, at approximately 10:15 p.m., the plaintiff left his apartment to go to work. After descending a set of exterior stairs, he stepped onto an adjacent sidewalk and slipped and fell on a patch of black ice. As a result of his fall, he sustained multiple fractures to his left arm, requiring surgery. He missed approximately eight weeks of work. The jury found that the defendant was negligent and that his negligence was the sole cause of the accident. The plaintiff was awarded $100,000 in damages. This appeal followed.
The defendant first argues that the trial court erred in failing to sustain his objection to comments made by plaintiff's counsel during his opening statement, and in failing to instruct the jury to disregard them. According to the defendant, the comments were "improper, irrelevant, and highly prejudicial."
During the plaintiff's opening statement, the following exchange occurred:
(Emphasis added.) Following the judge's ruling, plaintiff's counsel completed his opening statement, and the defendant raised no further objection and did not ask the trial court to instruct the jury to disregard the offending comments.
The defendant asserts that at the time of trial, he was a successful businessman who owned multiple apartment buildings, and also owned and operated a property management company. By contrast, he characterizes the plaintiff as an "unmarried, blue-collar worker, with no family or close friends." He argues that the offending comments by plaintiff's counsel "only served to enhance [the] possibility" that the jury was biased toward him on the basis of the parties' divergent backgrounds. He maintains that the trial court's failure to instruct the jury as to how it should consider the so-called "background" information "[left] the jury to draw the only inference it could from those statements: [that] the defendant was wealthy, and could afford an expensive ‘big firm’ lawyer." For his part, the plaintiff contends that these issues were not preserved for appeal. We agree.
It is well established that a party must make a specific and contemporaneous objection during trial to preserve an issue for appellate review. This requirement affords the trial court an opportunity to correct any error it may have made and is grounded in common sense and judicial economy. T & M Assocs. v. Goodrich, 150 N.H. 161, 163, 834 A.2d 369 (2003). Here, the trial court was not afforded an opportunity to correct the error the defendant now claims it made with respect to certain comments by plaintiff's counsel. Although defense counsel objected, he did so only on the basis that he did not think that opposing counsel was making "a proper opening statement." The defendant's current contention—that the comments enhanced the possibility of jury bias based upon the parties' divergent backgrounds—was never presented to the trial court for its consideration. It is not enough to simply assert that some portion of an opening statement is not proper and save for appeal the specific nature of the claimed impropriety. Moreover, when the trial court responded to counsel's objection by stating that it agreed, but would allow the comments "just for background," no request was made for a curative instruction and no further objection was advanced. Cf. State v. Dowdle, 148 N.H. 345, 347–48, 807 A.2d 1237 (2002) (). Accordingly, we decline to consider the merits of the defendant's arguments because they were not preserved.
The defendant also argues that, after taking judicial notice of a provision of the Manchester City Code (the ordinance), the trial court erroneously instructed the jury on it. We disagree.
After the close of evidence, but before closing arguments and jury instructions, the plaintiff requested the trial court to take judicial notice of a city ordinance relating to a landlord's duty to maintain sidewalks. The ordinance had not been pled and the plaintiff had not offered any evidence at trial demonstrating that the ordinance was in effect at the time of his accident or that it was applicable to the site where the accident occurred. Over the defendant's objection, the trial court, following a recess, took judicial notice of the ordinance and subsequently instructed the jury about it, as follows:
You should also consider whether the defendant violated any obligation under an ordinance. If you find that the defendant, by some act or failure to act, violated provisions of an ordinance, and if you find that the violation caused or contributed to cause plaintiff's injuries, this would amount to legal fault. The following is the ordinance relevant to this case. "It shall be the duty of the owner of any structure or part thereof let for occupancy as a dwelling unit to maintain all sidewalks, walkways, steps and driveways in a safe condition and free of snow, ice and other debris, hazards or obstructions."
The defendant concedes that trial courts are authorized to take judicial notice of municipal ordinances. Both the common law and New Hampshire Rule of Evidence 201 support the trial court's right to do so. State v. Duranleau, 99 N.H. 30, 32, 104 A.2d 519 (1954) ; N.H. R. Ev. 201. The defendant, however, argues that it was error for the trial court to do so in this case because he had no notice that the plaintiff would be relying upon the ordinance and thus was prejudiced by not being able to defend against it. In sum, he asserts he was not able to properly prepare his case and advance relevant defenses. He also claims that he was prejudiced because the jury was not charged on any defenses he had to the plaintiff's claim of liability under the ordinance. Finally, the defendant asserts that the trial court's instruction misled the jury to believe that he was responsible for the accident even if the plaintiff's fall occurred on a public sidewalk. Specifically, the defendant argues that the trial court failed to insert the word "private" before the word "sidewalks" in its instructions to clarify that he could not be held liable for failing to maintain a city sidewalk.
We review the defendant's arguments in turn. We do not have to decide whether the plaintiff was required to plead or otherwise disclose prior to trial his reliance upon the ordinance to advance his negligence claim against the defendant because the defendant has not demonstrated on the record before us that he suffered any prejudice from lack of notice.
The record reveals that the defendant raised the issue of whether the sidewalk where the plaintiff fell was owned by the City of Manchester. During his opening statement, defense counsel remarked, Subsequently, during his cross-examination of the plaintiff, defense counsel asked a series of questions designed to elicit an admission from the plaintiff that the slip and fall occurred on the public sidewalk, not on the defendant's private property. Later, during his closing argument, defense counsel stated, in relevant part:
Now, at 10 o'clock at night on a Sunday evening, you can't expect a landlord to be out there saying, It just doesn't happen that way. If that's the law as you find it, then you're requiring [the defendant] to guarantee that no one could be injured on his property. And that's not the law. The Judge is gonna tell you that he's not the guarantor for the safety of others on the property. He's just not, and he can't be. Finally, the Judge is gonna talk a little bit about a Housing Code ordinance that says, "Landlords must try and maintain their property and keep them reasonably safe from ice and snow and remove the like [phonetic]." And that's true. You know, that's—again, that's where lawyers get involved. There's a Manchester House Code ordinance that says you have to treat ice and snow. Well, that's true. And we tried to maintain and treat the ice and snow. We told them what we did. But we can't guarantee someone's...
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