Pettitt v. Lizotte

• Decision Date: 28 December 1982
• Citation: 454 A.2d 329
• Parties: Ronald G. PETTITT v. Jonathan LIZOTTE.
• Court: Maine Supreme Court

Page 329

454 A.2d 329

Ronald G. PETTITT v. Jonathan LIZOTTE.

Supreme Judicial Court of Maine.

Argued Nov. 4, 1982.

Decided Dec. 28, 1982.

Platz & Thompson, P.A., Paul S. Douglass (orally), Lewiston, for plaintiff.

Richardson, Tyler & Troubh, Wendell G. Large (orally), Portland, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, CARTER and VIOLETTE, JJ.

CARTER, Justice.

I.

In 1978, Ronald Pettitt filed a complaint on behalf of himself and his minor daughter, Dora, ¹ seeking damages for Dora's injuries inflicted by the defendant's dog. The Pettitts sought recovery under common law negligence and 7 M.R.S.A. § 3651 (1982). After a trial in Superior Court (Androscoggin County), a jury returned a verdict for the defendant. We sustain the judgment.

On October 31, 1975, Dora Pettitt was staying at the home of Linda and Jonathan Lizotte, her aunt and uncle. When Dora attempted to pet the Lizottes' Saint Bernard, ² which was chained to an overhead wire, the dog severely scratched her left cheek.

Ms. Lizotte took Dora to Central Maine Medical Center. A Lewiston surgeon treated Dora in the emergency room and saw her for a series of follow-up treatments. Subsequently, a Portland plastic surgeon performed a scar revision operation. He has recommended the performance of a second revision when Dora is fifteen or sixteen years old. Both doctors testified, however, that some scarring on Dora's cheek is permanent.

The Lizottes knew that their dog had scratched or bitten children twice before the incident involving Dora. The parents of these children had told the Lizottes that these occurrences were not the Lizottes' fault, however, because the children had been teasing the dog. Ms. Lizotte testified that she wanted to give the dog away because of these incidents but Mr. Lizotte refused to give up the dog. She stated that he believed that the dog was not "ugly" unless teased.

There was conflicting testimony concerning whether Ms. Lizotte told Dora to stay away from the dog. Ms. Lizotte testified that she told Dora not to go near the dog. Ms. Lizotte's brother, Mr. Fitts, testified that he heard Ms. Lizotte tell Dora to stay away from the dog. Dora testified that no one told her that she could not go outside to see the dog.

The plaintiff challenges eighteen evidentiary, procedural, and substantive determinations by the trial justice as constituting reversible error. After a review of the record in light of each of these contentions, we conclude that the justice neither abused his discretion nor clearly erred in any of his rulings. We discuss only the two major issues raised on appeal.

II.

Until the morning of trial, the plaintiff had no knowledge that Dale Fitts, the brother of Ms. Lizotte, had been present at the Lizotte home on the date of the incident. Further, the plaintiff had no notice that the defense intended to call Mr. Fitts as a witness. Mr. Fitts was not listed as a potential witness or as a person who had knowledge of the facts of the occurrence in the defendant's answers to interrogatories, the pretrial memorandum, the pretrial order, or the defendant's supplemental answer to one of the plaintiff's interrogatories. The defendant notified the plaintiff, on the morning of trial, that Mr. Fitts would testify. The plaintiff objected prior to the beginning of the trial to permitting Mr. Fitts to testify. The plaintiff renewed this objection when the defendant called Mr. Fitts as a witness. The plaintiff did not seek a continuance or a delay of trial in order to prepare to meet Mr. Fitts's testimony. The court overruled plaintiff's objection to the calling of Mr. Fitts as a witness and he was permitted to testify.

Essentially, Mr. Fitts's testimony corroborated Ms. Lizotte's testimony. He testified that he had been at the Lizotte home on the day of Dora's accident. He heard Ms. Lizotte tell Dora that she could go outside and that she must stay away from the dog. Dora went outside and did stay away from the dog. Dora returned to the house and later asked if she could go outside again. Ms. Lizotte answered affirmatively and again told Dora to stay away from the dog. Mr. Fitts heard Dora respond to the first warning about the dog but not to the second warning. Plaintiff's counsel did not cross-examine Mr. Fitts.

The Maine Rules of Civil Procedure contemplate that "[a]t the very least any counsel whose preparation reveals substantial inaccuracies or incompleteness in his client's prior responses to discovery should promptly notify the discovering party of the correct information." 1 Field, McKusick & Wroth, Maine Civil Practice § 26.18a at 445 (2d ed. 1970). Rule 26(e)(1)(A), M.R.Civ.P., requires a party to supplement responses to discovery requests addressed to the identity and location of persons having knowledge of discoverable matters. Rule 16(c)(6), M.R.Civ.P., requires a party to promptly furnish to opposing counsel the name and address of any witness who will be called at trial and who is not listed in the pretrial memorandum.

It is well established that parties to civil actions are entitled to pretrial disclosure of all non-privileged relevant information. 8 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2001 at 15 (1970). As we have recently noted: "[m]eaningful pretrial conferences and liberal discovery are two of the principal devices available to effectuate the purpose of the Maine Rules of Civil Procedure 'to secure the just, speedy and inexpensive determination of every action.' " Reeves v. Travelers Insurance Companies, 421 A.2d 47, 50 (Me.1980).

Conduct of counsel that frustrates these purposes should be appropriately penalized. Reeves, 421 A.2d at 50. For example, the sanctions for failure to reveal the identity of a witness, found after completion of discovery under Rule 26 or Rule 33, M.R.Civ.P., include the court's refusal to permit the party to call such a witness at trial. Maine Civil Practice §§ 26.18a at 446 & 33.9 at 514. Similarly, Rule 16(d) provides sanctions that may be imposed on a party who fails to comply with the requirements of Rule 16. The sanctions include the exclusion of evidence at trial. Under former Rule 16, we required a showing of prejudicial surprise before finding error in admitting evidence not previously furnished to opposing counsel. Terrio v. Millinocket Community Hospital, 379 A.2d 135, 138 (Me.1977) (no prejudicial surprise shown resulting from admission of document); Blais v. Davis, 358 A.2d 552, 554 (Me.1976) (no violation of rule when defense counsel received medical report on first day of trial). Under new Rule 16, however, it is suggested that claims of prejudice should be "more readily entertained" because of opposing counsel's continuing duty to disclose. C. Harvey, R. McGuire & L. Wroth, Maine Civil Practice, § 16.3 at 155 (Supp.1981). The matter lies within the sound discretion of the trial court. Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir.1979) (determination of whether a party had a duty to supplement answers to discovery requests is within sound discretion of judge); Corley v. BP Oil Corp., 402 A.2d 1258, 1261 (D.C.App.1979) (judge may impose sanctions for breach of this duty but is not required to do so). The imposition of sanctions depends on the circumstances of the case and an appellate court will not "lightly overrule" a trial justice's judgment. Reeves, 421 A.2d at 50; see generally Note, Pretrial in Maine Under New Rule 16: Settlement, Sanctions, and Sayonara, 34 Me.L.Rev. 111 (1982) (discussion of theory and effectiveness of pretrial procedure).

It is important to note that we deal here with an unintentional omission by counsel, as opposed to the failure to comply with court-ordered discovery, Reeves, 421 A.2d at 50, or the extended failure to comply with a pretrial order to produce a record, Lerman v. Inhabitants of City of Portland, 406 A.2d 903, 904 (Me.1979); or the failure to appear for trial. Sheepscot Land Corp. v. Gregory, 383 A.2d 16, 22-23 (Me.1978). The existence of actual prejudice resulting from counsel's omission thus takes on added significance in this case.

In an analogous situation, the trial justice may also exclude evidence of unquestioned relevance if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403, M.R.Evid. Prejudice under this rule connotes more than damage to the opposing side: "[a] party's case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here [under Rule 403] is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one." State v. Hurd, 360 A.2d 525, 527 n. 5 (Me.1976) (quoting McCormick, Handbook on the Law of Evidence 439 n. 31 (2d ed. E. Clearly ed. 1972). It is important to note that unfair surprise is not included in Rule 403 as a separate ground for exclusion. ³ A continuance is the appropriate remedy unless surprise and the other grounds listed in Rule 403 are present. R. Field & P. Murray, Maine Evidence § 403.1 at 59 (1976).

The plaintiff here made two general objections to permitting Mr. Fitts to testify based on the plaintiff's lack of notice. Although not specifically articulated, the plaintiff's position was that he was unfairly surprised by the appearance of witness Fitts at trial. The plaintiff made no motion for a continuance. Even absent such a request, the plaintiff would almost certainly have been granted a recess, on request, which would have provided the plaintiff with an evening to prepare for Mr. Fitts's testimony. The direct examination of Mr. Fitts was extremely short and concluded at 5:05 p.m. When plaintiff waived cross-examination, the evidence was closed and the court adjourned. No inconvenience would have occurred by adjourning at 5:00 p.m and hearing Mr. Fitts's testimony the following day if the plaintiff had so requested.

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