Cannone v. New England Tel. & Tel. Co.

• Decision Date: 01 February 1984
• Docket Number: No. 81-188-A,81-188-A
• Parties: Lawrence N. CANNONE v. NEW ENGLAND TELEPHONE AND TELEGRAPH CO. and Joseph T. Barton. ppeal.
• Court: Rhode Island Supreme Court

Page 211

471 A.2d 211

Lawrence N. CANNONE v. NEW ENGLAND TELEPHONE AND TELEGRAPH CO. and Joseph T. Barton.

No. 81-188-Appeal.

Supreme Court of Rhode Island.

Feb. 1, 1984.

Edmond A. DiSandro, DiSandro-Smith & Associates, P.C., Inc., Providence, for plaintiff.

Peter J. McGinn, Tillinghast, Collins & Graham, Providence, for defendants.

OPINION

KELLEHER, Justice.

The plaintiff, Lawrence N. Cannone, and the defendant, Joseph T. Barton, were involved together in an automobile collision on August 9, 1977. The defendant was driving a car that belonged to his employer, New England Telephone and Telegraph Company, also a named defendant. The plaintiff sued both defendants, claiming that they were responsible for the collision; the corporate defendant counterclaimed, alleging that the plaintiff was responsible. A Kent County Superior Court jury agreed with the defendants, and the plaintiff appealed. Hereinafter we shall refer to the plaintiff as either Cannone or plaintiff, the individual defendant as Barton, the corporate defendant as the company, or the last two collectively as defendants.

On August 9, 1977, Cannone left his home in Warwick at 7:30 a.m. and drove south on Route 2. He was headed for Bonnet Shores in Narragansett, where he was to begin working for a vinyl-siding contractor. Ten minutes later, at 7:40 a.m., Barton left his home in Exeter and drove east on Stony Lane. He also was on his way to work, in his case at the company office in East Greenwich. Both parties arrived at the intersection of Route 2 and Stony Lane within thirty seconds of each other. What happened next is in dispute.

Cannone claimed that as he was proceeding through the intersection in the extreme right-hand lane of Route 2 with the green light in his favor, Barton, ignoring his red light, came through the intersection and struck Cannone's vehicle. Barton, on the other hand, said that when he arrived at the intersection, the light for eastbound traffic on Stony Lane was red, so he stopped and then proceeded through onto Route 2 only after his light had turned green. According to Barton, it was Cannone who disregarded the red light and it was his employer's car that was negligently struck. The jury obviously believed Barton.

Cannone claims the trial justice made several erroneous rulings at trial pertaining to (1) admission of evidence, (2) jury instructions, (3) motion for a new trial, and (4) apportionment of costs.

Cannone's first claim is that the trial justice erred when he refused to grant Cannone's motion in limine for a protective order. Before trial, Cannone had filed a separate suit against the State of Rhode Island, alleging that it not only had defectively designed and reconstructed the intersection but also had failed to warn travelers of the intersection's dangerous condition. The protective order, if granted, would have barred defendants from introducing any facts concerning that suit.

The trial justice held a hearing on the motion and, as a result, permitted defendants the right to cross-examine plaintiff regarding his suit against the state.

Cannone claims that evidence of his suit against the state should have been excluded because it was irrelevant, immaterial, and highly prejudicial. However, he overlooks our well-established rule that a party who asserts contradictory claims in separate and distinct civil actions assumes the risk that those inconsistencies may be used to impeach the individual's credibility. Bengtson v. Hines, R.I. 457 A.2d 247 (1983); Atlantic Paint & Coatings, Inc. v. Conti, 119 R.I. 522, 381 A.2d 1034 (1977). Since Cannone had seen fit to blame his misfortune on the state's defective design of the intersection, he was fair game for the questions asked of him in this case during cross-examination by defendants' counsel. We cannot fault the trial justice's denial of Cannone's motion in limine.

Cannone's next claim is that the trial justice erred in excluding from evidence the fact that Cannone was found "not guilty" of a traffic offense arising from the collision. As a result of statements made at the scene, a North Kingstown police officer issued a summons to Cannone, charging him with failure to yield the right of way. At the Administrative Adjudication Division (division) hearing on the charge, Cannone, in his words, was found "not guilty." ¹

The issuance of the summons was elicited during direct examination of the police officer. Later that day a conference was held in the absence of the jury. Cannone's counsel announced that he had "neglected" to ask the police officer what had been the final outcome of the summons. Defense counsel indicated that he would have objected to the evidence as irrelevant. This objection was sustained. An offer of proof was made and rejected.

Cannone claims that the trial justice was clearly wrong when he refused to permit Cannone to elicit the disposition of the summons. We disagree. The burden of proof before the division is proof by clear and convincing evidence. General Laws 1956 (1982 Reenactment) § 31-43-3. The burden in a civil case is a preponderance of the evidence. ² Since the burden is greater before the division than in a Superior Court civil action, the dismissal of the failure-to-yield-the-right-of-way charge may merely have meant that the state or the concerned municipality had failed to satisfy the more rigorous burden rather than that the specific act charged did not occur. Consequently, we feel that evidence concerning the ultimate disposition of the failure-to-yield charge was properly excluded.

Cannone argues further that he should have been permitted to introduce the so-called acquittal evidence because it was a fact admitted by defendants during discovery. The defendants did admit that the charge against plaintiff had been dismissed. Nevertheless, they retained, as does any party that makes admissions under Rule 36 of the Superior Court Rules of Civil Procedure, the right to object to the introduction of this admission at trial. Under Rule 36, when an admission is offered at trial, it is subject to all of the pertinent objections to admissibility which may be interposed at trial, including relevancy. Broy v. Inland Mutual Insurance Co., W.Va., 233 S.E.2d 131 (1977); 4A Moore's Federal Practice, p 36.08 at 36-72, -73 (1983); 8 Wright & Miller,...