Malinowski v. United Parcel Service, Inc.

• Decision Date: 11 March 2002
• Docket Number: No. 2000-305-Appeal.,2000-305-Appeal.
• Citation: 792 A.2d 50
• Parties: Elaina MALINOWSKI, Individually and as Administratrix of the Estate of Michael Malinowski, a/k/a Michael Anthony Chaffee-Malinowski v. UNITED PARCEL SERVICE, INC., et al.
• Court: Rhode Island Supreme Court

792 A.2d 50

Elaina MALINOWSKI, Individually and as Administratrix of the Estate of Michael Malinowski, a/k/a Michael Anthony Chaffee-Malinowski v. UNITED PARCEL SERVICE, INC., et al.

No. 2000-305-Appeal.

Supreme Court of Rhode Island.

March 11, 2002.

Present WILLIAMS, C.J., LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.

Ronald J. Resmini, Paul S. Cantor, Providence, for Plaintiff.

John R. Mahoney, Providence, for Defendant.

OPINION

WILLIAMS, Chief Justice.

This case concerns a horrific accident that resulted in the death of a young man, Michael Malinowski (Michael). His mother, the plaintiff Elaina Malinowski (plaintiff), valiantly sought to recover for her loss by filing a wrongful death action. She is before this Court for a second time, after a second jury rendered its verdict for the defendants. She alleges that the trial justice committed a variety of errors. However, we must affirm the decisions of the trial justice and the judgment of the Superior Court because the resolution of the issues raised on appeal do not warrant a third trial.¹

I Facts and Travel

In 1991, plaintiff's fourteen-year-old son, Michael, was tragically struck and killed by a tractor-trailer truck driven by defendant Stephen F. Hogan (Hogan),² an employee of the United Parcel Service, Inc. (UPS) (collectively referred to as defendants). Approximately two years later, plaintiff filed a wrongful death action in the Superior Court. The first jury trial resulted in a verdict for defendants, and plaintiff appealed. On appeal, this Court held that the jury instruction on the sudden emergency doctrine erroneously permitted the jury to absolve Hogan from the duty to operate his vehicle with due care at all times. See Malinowski v. United Parcel Service, Inc., 727 A.2d 194, 195-96 (R.I.1999) (Malinowski I)

. Further, we held that Hogan had not been faced with a sudden emergency before striking Michael. See id. at 197. On remand, we instructed the trial justice to include jury instructions addressing the standard of care that motor vehicle operators owe to children who are in or near a roadway provided by G.L. 1956 § 31-14-3 and G.L. 1956 § 31-18-8.

After the second trial, the jury again returned a verdict for defendants. The trial justice denied plaintiff's motions for judgment as a matter of law and a new trial. The plaintiff timely appealed.³

II Admissibility of the Tachograph

The plaintiff contends that the trial justice erred by excluding the actual speed recording from the tachograph. A tachograph is a recording device located in many commercial trucks that charts the movement and speed of the vehicle. See Karen Smith Cooney, Comment, The Evidentiary Use of Tachograph Charts in Civil Litigation, 92 Dick. L.Rev. 483, 483 (1988). In the legal context, tachograph recordings are commonly used to prove the speed at which a vehicle was traveling at the time of an accident. See id.

UPS required the installation and operation of a tachograph in each of its vehicles. Thus Hogan's truck was equipped with the device on the day of the accident. After the accident, UPS dispatch supervisor James Kershaw (Kershaw) drove the truck to the East Providence police station. While at the station, Kershaw removed the tachograph disk (containing all relevant recordings) and placed it in his pocket. The tachograph revealed that Hogan was driving approximately thirty-two miles per hour at the time of the accident. However, before the accident, UPS allegedly found that the tachograph gear apparatus was defective. At the second trial, Kershaw testified that a part had been ordered to correct the problem. It was UPS's position that because of the defective gear, the tachograph could not have accurately recorded the truck's speed on the day of the accident. Thus UPS challenged the admissibility of the tachograph by filing a motion in limine.

The parties agreed that any testimony about the patterns of acceleration and deceleration recorded by the tachograph were admissible. The trial justice reserved ruling on the admissibility of the actual speed of the truck as recorded by the tachograph until such evidence was proffered in the context of the trial. The trial justice's opinion was that to prove that the "missing" gear was essential to the accuracy determination, and the foundation, plaintiff may need to provide expert testimony to supporther theory. The plaintiff argued that because the original defective gear was missing she could not possibly establish the accuracy of the speed recording.

"It is well established that `the admissibility of evidence is within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent.'" ADP Marshall, Inc. v. Brown University, 784 A.2d 309, 314 (R.I.2001) (quoting Bourdon's, Inc. v. Ecin Industries, Inc., 704 A.2d 747, 758 (R.I.1997)). "Furthermore, `this standard is applicable to a trial justice's determinations with respect to both the relevancy of proffered evidence and the adequacy of the foundation laid for its admission.'" Id. (quoting Bourdon's, Inc., 704 A.2d at 758).

In an attempt to have the trial justice reconsider the tachograph speed evidence, plaintiff's attorney indicated to the court that he intended to elicit the information from Kershaw. At that time, the trial justice ruled that the speed recording from the tachograph was inadmissible for lack of adequate foundation and accompanying expert testimony to ensure the accuracy of the recording. In doing so, the trial justice fairly noted that all the evidence pointed toward the inaccuracy of the tachograph recording. Further, plaintiff did not produce an expert to testify in support of her theory that the "missing" gear in question would be necessary to test the accuracy of the tachograph. Lastly, the trial justice noted that although the trial justice in the first trial had indeed admitted such evidence, she was entitled to exercise her own independent discretion in the second trial.⁴ The plaintiff was still entitled to discuss the acceleration pattern of the truck, including the clear absence of deceleration, which arguably, was even more important to her case. We agree.

In this case, there is no evidence that the trial justice abused her discretion by finding that Kershaw could not render a technical opinion absent qualification as an expert and that plaintiff had failed to lay an adequate foundation. A technical opinion about the operation of the tachograph and the impact of any alleged defect may indeed have been better introduced by an expert pursuant to Rule 702 of the Rhode Island Rules of Evidence. See ADP Marshall, Inc., 784 A.2d at 315; see also 92 Dick L. Rev. at 486 (discussing predominant view that in order to establish foundation for tachograph evidence, accuracy must be established).

Further, the jury heard the most compelling information revealed by the tachograph — that Hogan had failed to decelerate upon seeing Michael and his friends, and in fact, had accelerated continuously from the previous traffic signal. Finally, speed may not have been a factor in this accident because it was undisputed that Michael was struck by the rear wheels of the truck and that after the accident he was lying approximately fifty-three feet from the rear of the trailer. Accordingly, we find no error in the exclusion of the tachograph speed recording.

III Spoliation Instruction

The plaintiff next argues that the trial justice erred by failing to issue a jury instruction on the doctrine of spoliation. Under the doctrine of spoliation, "the deliberate or negligent destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence was unfavorable to that party." State v. Barnes, 777 A.2d 140, 145 (R.I.2001) (quoting Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744, 748 (R.I.2000)). In support of her argument for admission of the speed recording, plaintiff referred to the doctrine of spoliation. Specifically, plaintiff argued that UPS tampered with the tachograph apparatus such that "certain mechanisms necessary to establish the tachograph evidence were destroyed while in the possession of [UPS]." The trial justice declined to issue the instruction because "there was no explicit request made as to what evidence was the subject of an argument regarding spoliation." "General Laws 1956 § 8-2-38 requires the trial justice to instruct the jury on the law to be applied to the issues raised by the parties." State v. Briggs, 787 A.2d 479, 486 (R.I.2001) (quoting State v. Lynch, 770 A.2d 840, 846 (R.I.2001)). However, the trial justice is not obligated to issue an instruction where the requesting party has failed to make clear its argument or present any evidence in support of its theory. See Morinville v. Old Colony Co-operative Newport National Bank, 522 A.2d 1218, 1222 (R.I.1987)

("A trial justice fulfills his or her obligation to charge the jury properly by framing the issues in such a way that the instructions `reasonably set forth all of the propositions of law that relate to material issues of fact which the evidence tends to support.'"). In this case, plaintiff implied that defendant mishandled the tachograph such that plaintiff was unable to authenticate the speed recording. By failing to present any further evidence or explanation, plaintiff failed to trigger the trial justice's obligation to issue the requested instruction. Thus, the trial justice did not abuse her discretion.

IV Post-Trial Motions

After judgment entered for UPS, plaintiff filed two motions in an attempt to revise the jury verdict. Pursuant to Rule 50(b) of the Superior Court Rules of Civil Procedure, plaintiff first filed a motion for a judgment as a matter of law, or in the alternative a motion for new trial, arguing that (1) thejury instructions should not have addressed Michael's potential comparative negligence, (2)...