McCrea v. State
| Decision Date | 28 July 1980 |
| Docket Number | No. 228-79,228-79 |
| Citation | 138 Vt. 517,419 A.2d 318 |
| Parties | Shirley McCREA, Administratrix of the Estate of Robert A. Monroe v. STATE of Vermont. |
| Court | Vermont Supreme Court |
Robert S. Burke and Brian J. Grearson of Richard E. Davis Associates, Inc., Barre, for plaintiff.
Robinson E. Keyes and Leonard F. Wing, Jr. of Ryan, Smith & Carbine, Ltd., Rutland, for State.
Harry A. Black of Black & Plante, Inc., White River Junction, for Bourdon's, Inc.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
In March of 1974, plaintiff's intestate, Robert A. Monroe, died as a result of a fire he set to a mattress while confined in the Rutland Community Correctional Center. Plaintiff subsequently brought this action claiming that Monroe's death was due to the negligence of the State of Vermont in its operation of the correctional center. She contended that at the time of confinement Monroe exhibited suicidal tendencies that were not recognized and handled appropriately by the State; that the cell in which Monroe was confined was unsafe; that the mattress in the cell was not properly fire-rated; that the center had inadequate fire protection equipment; and that the employees of the center were improperly trained in fire evacuation procedures. The State answered denying negligence on its part, and alleging, alternatively, that decedent's negligence was greater than any on the part of the State. The State also filed a third-party complaint, V.R.C.P. 14, against Bourdon's, Inc., alleging that Bourdon's had manufactured and sold to the State the allegedly improperly fire-rated mattress and that should the State be held liable it was entitled to indemnification from Bourdon's.
At the close of all the evidence third-party defendant Bourdon's motion for a directed verdict was granted, and a judgment to that effect was entered. The case was then submitted to the jury, who returned with a verdict that Monroe was 65% negligent and the State was 35% negligent. Plaintiff's motions to set aside the verdict and for a new trial were denied, and the present appeal was filed. The State filed a cross-appeal, again raising its indemnification claim against Bourdon's.
Plaintiff raises three grounds of error: (1) the trial court erred when it failed to give plaintiff's requested instruction on the doctrine of last clear chance; (2) the trial court erred when it failed to inform plaintiff which instructions would be given as required by V.R.C.P. 51(b); and (3) the jury did not spend sufficient time examining the evidence introduced in the case. Since we believe these claims are without merit, we affirm the judgment of the trial court. And, since the State in its cross-appeal seeks relief only if a new trial is granted, the issues raised by that appeal need not be addressed.
Prior to the court's charge, plaintiff filed a request for instructions, asking that the following charge be given to the jury:
If you find from the evidence that the inability of the persons in charge of the plaintiff to remove him from the cell resulted from inadequate fire protection devices, or inadequate training, or inadequate fire fighting equipment, or any combination of these, then you may not consider the plaintiff guilty of contributory negligence.
The court, without informing either counsel of its intended charge, subsequently instructed the jury as to the legal issues involved in the case, but failed to give the above-quoted request. No objection was made by plaintiff before the jury retired.
V.R.C.P. 51(b) provides:
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
It is well settled that claims regarding jury instructions must be raised in and ruled on by the trial court before they are ripe for appellate review. See, e. g., Palmisano v. Townsend, 136 Vt. 372, 374, 392 A.2d 393, 395 (1978); Paton v. Sawyer, 134 Vt. 598, 602-03, 370 A.2d 215, 218 (1976). Therefore, plaintiff's failure to object to the trial court's refusal to give her requested instruction precludes our review.
Furthermore, we reject plaintiff's contentions that the trial court's failure to inform counsel of its intended charge pursuant to V.R.C.P. 51(b) relieved her of the burden of objecting, or, alternatively, that the court's failure to so inform counsel was reversible error per se. While the trial court's failure to inform counsel as required by Rule 51(b) was erroneous, it does not, in our opinion, require reversal of the judgment below. Rule 51(b) requires the court to inform counsel of its proposed instructions prior to closing arguments, so they can intelligibly argue the facts in light of the law to be charged to the jury, and so they will be alerted to make proper objections to the proposed charge. Fraser v. Choiniere, 133 Vt. 631, 634, 350 A.2d 755, 757 (1975). The rule is not, however, meant to be a trap for the judge who inadvertently fails to inform counsel. Finkle v. New York, N.H. & H. R.R., 26 F.R.D. 9, 10 (D.Conn.1960). Where, as it appears here, a judge fails to inform counsel due to inadvertence, cf. Fraser v. Choiniere, supra (), an appellate court will reverse only if a party has been prejudiced by the failure. Williams v. Independent News Co., 485 F.2d 1099, 1106 (3d Cir. 1973); Hardigg v. Inglett, 250 F.2d 895, 897 (4th Cir. 1957); Levin v. Joseph E. Seagram & Sons, Inc., 158 F.2d 55, 58 (7th Cir. 1946), cert. denied, 330 U.S. 835, 67 S.Ct. 971, 91 L.Ed. 1282 (1947).
We do not believe that the trial court's failure to inform counsel prejudiced plaintiff's ability to object to the denial of her request to charge. At the close of the court's instructions to the jury, a bench conference was held between counsel and the trial judge. And, although the subject of the conference was plaintiff's requests to charge, counsel gave no indication that he was unsatisfied with the charge given. Rule 51(b) imposes an affirmative obligation both upon the trial judge and upon the parties. The failure of the trial judge to carry out his obligation does not in our opinion excuse the parties from carrying out theirs, especially when the failure on the trial court's part was the result of inadvertence rather than of conscious design. 1
Nor...
To continue reading
Request your trial
-
O'Brien v. Island Corp., 87-061
...of an instruction on breach of warranty and strict liability also precludes review by this Court. V.R.C.P. 51(b); McCrea v. State, 138 Vt. 517, 520, 419 A.2d 318, 319 (1980). C. Plaintiff further urges that our rule absolving a landlord of liability for defective conditions on the premises ......
-
Estate of Laitinen
...In light of that fact, we do not find the length of time required by the jury in this case to be unreasonable. McCrea v. State, 138 Vt. 517, 521-22, 419 A.2d 318, 320-21 (1980). ...
-
Hartnett v. Medical Center Hosp. of Vermont
...object thereto before the jury retires. See Collette v. Bousley, 141 Vt. 373, 374-75, 449 A.2d 936, 937 (1982); McCrea v. State, 138 Vt. 517, 520, 419 A.2d 318, 319 (1980). The record reveals that the plaintiff made no objection to the specific charge given and therefore has not preserved h......
-
State v. Joyce
...by V.R.C.P. 30. The failure to raise an objection in the trial court constitutes a waiver of the claim of error. McCrea v. State, 138 Vt. 517, 520, 419 A.2d 318 (1980); State v. Kasper, 137 Vt. 184, 190, 404 A.2d 85 (1979). This Court will consider a claim not raised below only if it consti......