Brown v. State

• Decision Date: 12 January 2018
• Docket Number: No. 2017-180,2017-180
• Citation: 2018 VT 1
• Court: Vermont Supreme Court
• Parties: Cheryl J. Brown v. State of Vermont

2018 VT 1

Cheryl J. Brown v. State of Vermont

No. 2017-180

Supreme Court of Vermont

October Term, 2017

January 12, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Robert A. Mello, J.

Rabbi Stuart Jay Robinson, Grand Isle, for Plaintiff-Appellant.

Thomas J. Donovan, Jr., Attorney General, and Jon T. Alexander, Assistant Attorney General, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. EATON, J. Cheryl Brown appeals from a jury verdict finding the State responsible for a motor vehicle accident, but also finding Brown had not proven any resulting injuries and thus was not entitled to any damages. Brown alleges several errors in pre-trial and trial rulings, as well as in the failure to grant her a new trial. We affirm.

¶ 2. We view the evidence in the light most favorable to the verdict. J.A. Morrissey, Inc. v. Smejkal, 2010 VT 66, ¶ 9, 188 Vt. 245, 56 A.3d 701. Applying that standard, the evidence at trial was as follows. Shortly after 5:00 p.m. on May 16, 2012, Cheryl Brown and Matthew Denis were involved in a traffic accident on Route 15 near St. Michael's College in Colchester, when Denis's truck bumped into Brown's car from behind. Denis claimed the accident happened when he inadvertently took his foot off the brake as he turned to roll the rear window down to provide fresh air to his dog, who was riding in the back seat. Denis's truck, which was positioned behind Brown's car, rolled forward five to six feet, striking her rear bumper. The collision took place in stop-and-go traffic. Denis, a sergeant with the Vermont State Police, estimated his speed at impact to be two miles per hour and did not believe there was any damage caused to Brown's vehicle from the collision. Brown claimed the impact caused a scratch on her rear bumper. The truck Denis was driving did not have any markings indicating it was a police vehicle.

¶ 3. After the collision, Denis got out of his truck and suggested they move their vehicles to a nearby parking lot to exchange information. He also asked Brown if she was hurt; she denied any injury at that time. Brown claimed Denis did not identify himself at the time of the collision. Denis returned to his truck and began moving it to the parking lot. Brown's vehicle remained stopped on Route 15, so Denis paused beside it and again suggested they meet in the parking lot. While stopped on Route 15, Brown called 911. During that call, she learned that Denis had also called in to police dispatch to report the accident, that Denis was a police officer, and that he was waiting in the nearby parking lot. Once the Colchester Police responded to the scene, Brown moved her car to the same parking lot that Denis had suggested, and Denis and Brown exchanged the pertinent accident information.

¶ 4. Subsequently, Brown filed suit against the State of Vermont alleging it was responsible for injuries she sustained in the accident due to Denis's negligence. Brown also raised constitutional claims, alleging: (1) due process and equality of treatment violations under the Vermont Constitution's Common Benefits Clause, and (2) an equal protection, and possibly a due process, claim under the United States Constitution. Brown did not name Denis as a defendant in her suit. Brown's constitutional claims were based on her assertion that Denis received favorable treatment because he was not prosecuted for causing the accident or leaving the scene without providing identifying information.

¶ 5. Before trial, the court granted the State's motion for partial summary judgment, dismissing Brown's constitutional claims. The Court dismissed the due process and equal protection claims under the United States Constitution on the basis that Brown had only sued the State, and not Denis personally, and that the State was not a "person" for claims arising under 42 U.S.C. § 1983. The court further ruled that Brown lacked standing to assert any claim based on the State's failure to prosecute Denis. The court also dismissed the Common Benefits Clause claim because Brown lacked any cognizable interest in the prosecution or discipline of Denis. Lastly, the court held that, to the extent a due process claim had been raised, it was undisputed that Brown received the information required to be exchanged in the event of a car collision shortly after the accident, and her ability to file suit against the State as a result of the accident showed her due process rights were not impeded.

¶ 6. Throughout the trial, Brown contested the court's evidentiary rulings, which limited the scope of inquiry by her counsel and evidence she sought to present. Consistent with its pre-trial rulings, the court refused to permit voir dire questioning, discussion in opening statements, or trial testimony concerning matters related to Brown's characterization of the aftermath of the accident as a "hit and run," a "conspiracy" to allow Denis to receive favorable treatment, or falsification of evidence. On appeal, she claims the restrictions on the voir dire, remarks of counsel, and introduction of evidence resulted in a tainted jury, deprived her of due process, and denied her a fair trial.

¶ 7. Beyond rulings on the scope of what she was allowed to present, Brown alleges several additional errors concerning evidentiary rulings during trial. She claims to have first learned of the existence of a dog in Denis's car during opening statements. She claims the disclosure of the dog at trial constituted new evidence because the dog was not disclosed as a witness to the accident or listed in the police report as being in Denis's car. She claims the late disclosure of the dog is prejudice of sufficient magnitude to constitute structural error requiringthe court to declare a mistrial, despite Brown's failure to request one and her failure to depose Denis prior to trial. Further, she alleges the court erroneously allowed the admission of photographs of the vehicles taken by Denis after the accident because an improper foundation was laid to admit them, and their admission was the result of preferential treatment given to the State She also claims the court erroneously allowed Denis to testify about a speed experiment he did after the accident, during which he took his foot off the brake in a parking lot and allowed his truck to move forward, providing the basis for his estimate of a two mile per hour impact speed.

¶ 8. At trial, Brown claimed she received injuries to her neck, shoulder, and shoulder blade in the accident. In 2007, Brown had been involved in another rear-end collision; at that time, she was treated by a physician for injuries to her back, neck, and shoulder. Her treating physician for the accident at issue—the 2012 accident—opined that the injuries Brown claimed to have suffered were new injuries and not an aggravation of her prior injuries from 2007. The expert admitted that Brown had not told her of any prior history of neck or shoulder pain. Brown also testified that the injuries she received in the 2012 accident were new ones, unconnected to the earlier 2007 injuries. A defense medical expert claimed the 2012 accident was unlikely to have caused Brown any new injury because of its low speed and his expectation that such a collision would not be sufficient to cause any appreciable injury. He also testified to the lack of any objective medical findings indicating a traumatic injury to Brown from the 2012 accident.

¶ 9. By agreement of the parties, a proposed jury charge concerning aggravation of a pre-existing condition was not given. During deliberations, the jury questioned whether it should be considering reaggravation of a previous injury in determining whether the 2012 accident caused any damages to Brown. Again, with the agreement of the parties, the court told the jurors that Brown was not claiming defendant's negligence aggravated any previous injury; rather, Brown claimed that the 2012 accident caused the injuries to which she testified at trial and that those injuries were new. The jury subsequently found Brown had not proven the 2012 accident causedany injuries. Brown now claims that the trial court erroneously considered that aggravation of a pre-existing condition was an issue in the case and that the jury erroneously disregarded the evidence that Brown had sustained new injuries in the 2012 accident.

¶ 10. Finally, Brown claims the trial court's erroneous evidentiary rulings resulted in prejudice to her, depriving her of a fair trial. She asserts the trial court abused its discretion by denying her motion for a new trial. We address her arguments in turn.

I. Summary Judgment Ruling

¶ 11. We turn first to Brown's claim of error in granting the State's partial summary judgment motion dismissing her constitutional claims. We review summary judgment rulings de novo, In re All Metals Recycling, Inc., 2014 VT 101, ¶ 6, 197 Vt. 481, 107 A.3d 895, and we review a grant of summary judgment using the same standard of review applied by the trial court. Greene v. Stevens Gas Serv., 2004 VT 67, ¶ 9, 177 Vt. 90, 858 A.2d 238. "Summary judgment is appropriate only where the moving party establishes that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law." Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996); V.R.C.P. 56(a).

¶ 12. On appeal, Brown asserts an equal protection claim under the Fourteenth Amendment to the U.S. Constitution, alleging Denis was afforded a "forbidden double...