Opinion
D041502.
10-15-2003
PAUL MESSINA, Plaintiff and Respondent, v. UNITED HOME IMPROVEMENT CENTERS, Defendant and Appellant.
Plaintiff Paul Messina brought the instant personal injury action against United Home Improvement Centers (United). A jury by special verdict found United negligent and awarded Messina damages. United appeals the judgment on the jurys special verdict, contending (1) the court prejudicially erred by instructing the jury with BAJI No. 3.13 (right to assume good conduct of others); (2) the jurys award of damages for pain and suffering was unreasonable; (3) the court prejudicially erred by refusing to allow United to address, in closing argument, the failure of certain witnesses to testify; and (4) the special verdict was inconsistent and therefore invalid because the jury found Messina negligent but failed to assign any percentage of fault to his negligence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the spring of 1999, Messina purchased a 10-foot by 32-foot retractable awning from a Home Base store; Jerry Utterback, a subcontractor of United, installed the awning on Messinas house. A few months later, Messina wanted to change the brackets that supported the awning because the awning was too low in its extended position.
Utterback and a worker named Arbuckle came to Messinas house to reinstall the awning with new brackets designed by Messina. The two men stood on ladders at opposite ends of the awning and removed the awning from the brackets at each end and two other brackets. However, the awning became stuck in a bracket near its center, and the men were unable to shake it free. The men asked Messina if he would get on his ladder and try to remove the awning from the bracket. Messina placed his ladder in front of the bracket and climbed the ladder to inspect the bracket. He told Utterback and Arbuckle the awning was stuck in the bracket because of the weight on both ends.
Arbuckle then asked Messina to switch places with him so he could try to free the awning from the center bracket. Messina climbed onto Arbuckles ladder and held the awning at that end while Arbuckle climbed onto Messinas ladder and began to jerk the awning to free it from the bracket. Arbuckle jerked the awning about three times and it suddenly dislodged from the bracket and fell. Arbuckle and Utterback were able to get out of the way of the falling awning, but Messina held onto it to keep it from coming down onto his face. He was knocked off his ladder and the awning fell on top of him, pinning him to the ground. As a result of the accident, he suffered injuries, including pain, stiffness and problems with range of motion in his neck.
Messina filed a complaint alleging negligence against United and Home Base, Inc. At trial, Home Base, Inc. was dismissed from the action. The jury by special verdict found United was negligent and that its negligence caused injury to Messina. The jury awarded Messina damages of $167,125, including $156,000 for pain and suffering. The jury also found Messina was negligent, but found his negligence was not a cause of his injuries. Consequently, in accordance with directions on the special verdict form, the jury did not apportion fault between United and Messina.
DISCUSSION
I. BAJI No. 3.13
United contends the court erred by instructing the jury with BAJI No. 3.13 as follows: "A person who is exercising ordinary care has a right to assume that every other person will perform his duty. In the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can occur only as a result of a violation of duty by another person."
A party is entitled upon request to correct, nonargumentative jury instructions on all presented theories of the case that are supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Instructional error requires reversal only if it seems probable the error prejudicially affected the verdict. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.) "The reviewing court should consider not only the nature of the error, `including its natural and probable effect on a partys ability to place his full case before the jury, but the likelihood of actual prejudice as reflected in the individual trial record, taking into account `(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled." (Ibid.)
United contends BAJI No. 3.13 confused and misled the jury and resulted in an inconsistent verdict. United asserts the instruction is traditionally used by defendants rather than plaintiffs and cites Springer v. Reimers (1970) 4 Cal.App.3d 325, 336-337 (Springer), for the proposition that the instruction tends to arouse speculation and confuse the jury when there is no evidence of a violation of law or duty.
We find no error in the courts use of BAJI No. 3.13. The Comment to BAJI No. 3.13 explains that both plaintiffs and defendants are entitled to the benefit of the instruction. (Com. to BAJI No. 3.13 (9th ed. 2002), p. 46.) In Springer, the plaintiffs (an injured worker and his employer) argued it was error to give BAJI No. 3.13 in view of the courts determination there was no contributory negligence on the part of the injured plaintiff. The Court of Appeal agreed, stating the "instruction is not proper where the plaintiff is not contributorily negligent." (Springer, supra, 4 Cal.App.3d at p. 336.) The corollary of that statement is that the instruction is proper when the defense takes the position and presents evidence that the plaintiff was contributorily negligent. Here, Uniteds main defense was that Messinas own negligence was a cause of his injuries. Accordingly, the court did not err in instructing the jury with BAJI No. 3.13. The instruction properly allowed the jury, in deciding whether Messina was contributorily negligent, to consider whether Messina was exercising ordinary care and reasonably should have anticipated negligence on the part of Arbuckle and Utterback.
In any event, the jurys verdict indicates United was not prejudiced by the courts use of BAJI No. 3.13. If the jury had applied the instruction to Messinas benefit, it would have found Messina was not negligent — i.e., that he was exercising ordinary care and had no reason to anticipate negligence on the part of Arbuckle and Utterback. The fact that the jury found Messina was negligent indicates the instruction was not a significant factor in its verdict.
United argues the courts use of BAJI No. 3.13 was prejudicial because it allowed Messinas counsel to erroneously assert, in rebuttal closing statement, that Arbuckle and Utterback had a duty to "preserve and protect" Messina. In full context, counsels "preserve and protect" remark was as follows: "If I understand [defense counsels] essential argument, it was that the only duty of Mr. Utterback and Mr. Arbuckle was to install the awning. That would be a far cry from common sense. Their duty was to install the awning, of course, but their duty also was to preserve and protect people that came within the risk circle of their activities and that person was Mr. Messina." United argues Messinas counsel could not have made that argument to the jury if the court had not given BAJI No. 3.13.
Although his choice of words was inexact, Messinas counsels reference to Arbuckle and Utterbacks duty to "preserve and protect people that came within the risk circle of their activities" was simply a reference to their general duty to use ordinary care in performing their work. Even if the reference was legally erroneous, there is no clear connection between it and the courts use of BAJI No. 3.13. BAJI No. 3.13 does not articulate a duty to "preserve and protect" others; it expresses the principle that a person exercising ordinary care is not negligent for failing to anticipate another persons negligence unless there is reasonable cause to anticipate it. United has not shown the court prejudicially erred by instructing the jury with BAJI No. 3.13.
II. Damages for Pain and Suffering
United contends the jurys award of $156,000 to Messina for pain and suffering was unreasonable and raises a presumption that the jury acted out of passion and prejudice. "`[A] reviewing court must give considerable deference in matters relating to damages to the jury in the first instance and to the trial court secondarily [when it rules on an excessive damages claim on a motion for new trial]." (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067.) We disturb an award of damages only when it appears excessive as a matter of law or when it "`is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice." (Cunningham v. Simpson (1969) 1 Cal.3d 301, 308.) (Here, Uniteds motion for new trial, which raised the issue of excessive damages, was denied by operation of law under Code Civ. Proc., § 660 on the 60th day after notice of entry of judgment was given, which normally is also the last day to file a notice of appeal under Cal. Rules of Court, rule 2(a). United asserts it was forced to file its notice of appeal on that date instead of waiting for a ruling on its new trial motion, apparently unaware that the motion was denied by operation of law on that date and that its time to appeal was extended 30 days under Cal. Rules of Court, rule 3(a).)
At trial, Messinas physician testified that Messina could barely move his neck after the accident and that "[h]e got a little better as a year or two went by but barely could turn his head at all in any direction, up, down or sideways." The physician believed the accident exacerbated a preexisting arthritic condition and testified there were physical findings of nerve damage evidenced by involuntary muscle fasciculation. United did not call a medical expert to testify at trial.
Messina testified that his injuries from the accident continue to bother him on a daily basis. He is unable to move his neck at night or sit down without something supporting his head and neck, due to the pain and discomfort caused by his physical condition. He testified that when he tries to do the kind of handyman work he did before the accident, he has to "pay a price for it," meaning he reaches a point where he can no longer stand and has to lie down because of the pain in his neck. At one point he was referred to a psychiatrist for emotional problems stemming from the accident. Messinas wife similarly testified that he was unable to do things he used to do before the accident, including playing with his grandchildren. As a result, he suffered frustration, irritability and nervousness.
Based on this evidence, the jury could reasonably find Messina has suffered a substantial and permanent loss of enjoyment of life due to the daily physical pain and discomfort he experiences as a result of the accident. We cannot say the jurys award of general damages was excessive as a matter of law or so grossly disproportionate to Messinas injuries as to raise a presumption that it resulted from passion or prejudice.
III. The Courts Refusal To Allow United to Address Failure of
Arbuckle and Utterback to Testify
United contends it was prejudiced because Messinas counsel, during his closing argument, breached an agreement that neither side would mention the failure of Arbuckle and Utterback to testify and the court refused to let Uniteds counsel address the matter in his closing argument. We reject this assignment of error for several reasons.
First, Messinas counsel never directly mentioned Arbuckles or Utterbacks failure to testify; at one point counsel stated: "In fact, there are only two witnesses who have testified as to what happened on [the day of the accident] and thats Mr. Messina and Mrs. Messina. And their testimony is uncontradicted by anyone on behalf of the defense." After recounting the accident, Messinas counsel later stated: "Those are the acts of negligence and the occasion in which the injuries that were addressing here in this case occurred. There is no contrary evidence. None has been introduced by the defense." We assume these statements by Messinas counsel form the basis of Uniteds assignment of error. (Uniteds opening brief does not disclose the location in the reporters transcript of the alleged references to Arbuckles and Utterbacks failure to testify.)
Counsels references to the fact that Messina and his wife were the only witnesses who testified about the facts of the accident did not tell the jury anything it did not already know and were not tantamount to references to the failure of any specific witness to testify. If there was an agreement between the parties that Arbuckles and Utterbacks failure to testify would not be mentioned, United has not shown that Messina breached it.
Second, to the extent the remarks in question can reasonably be viewed as references to Arbuckles and Utterbacks failure to testify, the record is inadequate for us to review Uniteds assignment of error. The appellant has the burden of showing error by an adequate record. If the incompleteness of the record precludes adequate review of an assignment of error, the judgment or order appealed will be affirmed. (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) "`"Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs."" (In Re Hochberg (1970) 2 Cal.3d 870, 875.) Here, the record does not show either the alleged agreement between the parties to not mention Arbuckles and Utterbacks failure to testify or the courts ruling prohibiting Uniteds counsel from addressing the matter in closing argument. According to United, the court made the ruling in question during an unreported sidebar. Because there is no transcript of the ruling and United did not make a record that would otherwise preserve the issue for appeal, the ruling is not subject to our review.
Finally, United waived its objection to any inappropriate remarks made by Messinas counsel during closing argument by failing to object to them at trial. "It is settled that misconduct of counsel in argument to the jury may not be urged for the first time on appeal absent a timely objection and request for admonition in the trial court if timely objection and admonition would have cured the harm." (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 797.) "The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. [¶] . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice." (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610.) An appellant who failed to object to such alleged misconduct below bears the burden of showing that an objection and admonition to the jury would not have corrected the error. (Grimshaw, at p. 800.) Here, the record does not show United objected to the statements in question by Messinas counsel, and United does not argue on appeal that an objection and admonition to the jury would not have corrected the claimed error. Consequently, the issue is waived.
IV. Jurys Findings Regarding Messinas Negligence
United contends the jurys verdict was inconsistent and invalid because the jury found Messina was negligent but did not assign any percentage of fault to his negligence. The verdict is not inconsistent. The special verdict form properly broke down the elements of negligence into separate questions of whether each party was negligent and, if so, whether the negligence was a cause of Messinas injuries. The form directed the jury not to proceed to the question of apportionment of fault if it found Messinas negligence was not a cause of his injuries. Because the jury found Messinas negligence was not a cause of his injuries, it properly signed and returned the verdict form without apportioning fault.
United does not truly argue on appeal that the form of the verdict was erroneous, and it did not object to the form of the verdict below. Uniteds real complaint is that the jury found Messina was negligent but did not find his negligence was a contributing cause of his injuries — a result United blames on the courts use of BAJI No. 3.13. However, United does not argue there was insufficient evidence to support the jurys causation finding or explain how that finding was affected by BAJI No. 3.13, which does not address causation. The jurys failure to apportion fault between Messina and United was not inconsistent with its finding that Messina was negligent because it did not find Messinas negligence was a cause of his injuries. The special verdict form was proper and there was no inconsistency in the jurys verdict.
DISPOSITION
The judgment is affirmed. Messina is awarded his costs on appeal.
WE CONCUR: BENKE, Acting P.J. and AARON, J.