Harmon v. Town of Afton

URBIGKIT, Justice,

dissenting.

With the same problem and nearly the same final argument as found in Coryell v. Town of Pinedale, Wyo., 745 P.2d 883 (1987), I dissent from this decision. In closing argument, counsel for the Town of Afton (one of the two defendants), informed the jury:

“Okay. Let’s go through another hypothetical assumption on negligence again. Let’s assume he’s [plaintiffs] 0% and let’s assume that Hunting [the other defendant who was discharged in bankruptcy], you decide, is 99%. Let’s assume that you find that the Town is 1%. What happens? Under the instructions that the Judge has given you, despite the fact that you would have found that the Town is 1% responsible, do you know what happens? He gets all of his damage, 100%, from the Town. That's the way it will work. So, really, in a sense, this number, right here, is academic unless you find that it’s a 100% number, because if you find that, then you are going to have to come up with zero, zero here (indicating).

“So that’s the importance. If there’s 1% negligence, the Town pays for everything. If it’s 30% negligence on the part of Mr. Harmon, in this first scenario, and the Town is 31, they pay it all, less the 30% that you had determined was his negligence.”

The difference from Coryell is the clear and adequate objection made. In jury-instruction conference, objection to the joint- and-several-liability instruction was asserted.

“THE COURT: Okay. Let me just take 12.

“Now, I don’t understand your objection with respect to 12. This is a concurrent cause instruction.

“MS. ROSE: Right, but it states when the concurring negligence of two or more persons causes an injury, each person is wholly liable to the plaintiff regardless of the relative degree to which each contributes to the injury.

“THE COURT: Well, that’s the correct statement of the law—

“MR. JACOBSON: It is.

“THE COURT: —as it now exists.

“MR. JACOBSON: And you will recall our motion in limine. We didn’t feel that reference to the collection aspects of joint and several liability is relevant to the Jury’s deliberations. We understand you’ve overruled that but you mentioned it again in another instruction and that is—

“MS. ROSE: 16.

“MR. JACOBSON: Now, we can live with 12, but we don’t think it needs to be mentioned again in 16, both of those. And that’s the last sentence.”

By earlier motion in limine, plaintiffs had requested an order constraining “any reference to the legal effects of joint and several liability on the Defendant” and that the court “admonish counsel for the Defendant not to suggest to the jury by statement, argument, objection, or otherwise that the Plaintiffs have sought exclusion from proof of any fact or matter set forth herein.” Comprehensive memorandum in support of the motion in limine relating to the joint- and-several-liability issue was also filed pretrial. In particular, plaintiffs raised the issue of evidence or argument relating to the source of funds to pay the award, concluding, “Accordingly, Plaintiff submits an Order in Limine limiting any reference to the collection aspects of joint and several liability would be appropriate.” Responsive to plaintiffs’ motion in limine, defendant filed a motion in limine including “[a]ny and all evidence, testimony, or argument concerning the issue of the existence of liability insurance in any of the parties hereto,” citing Rule 411, W.R.E.

In their motion for judgment N.O.V., or in the alternative for a new trial, plaintiffs again raised the issue:

“(3) The Court erroneously allowed the Defendant to talk to the jury about the prejudicial ‘collection’ aspects of the doctrine of joint and several liability; * * * ))

In responsive argument in the post-trial motion brief, defendant Town of Afton stated:

“THE COURT DID NOT ERRONEOUSLY ALLOW DEFENDANT TO TELL THE JURY ABOUT THE ‘COLLECTION ASPECTS’ OF THE DOCTRINE OF JOINT AND SEVERAL LIABILITY. “The Town concedes that at closing argument, Counsel argued to the jury the consequences of the doctrine of ‘joint and several liability.’ The Town disagrees with Plaintiffs that the Court erroneously allowed counsel to do so. Prior to trial of this matter, counsel for the Defendant, by way of an offered Jury Instruction, presented authority in support of its position that the jury be instructed on the consequences of the doctrine of joint and several liability. Following argument, the Court ruled in favor of Defendant on this issue and the Defendant will rely on the authority previously submitted to the Court in support of its position that said ruling was correct. “At closing argument, counsel for the Defendant informed the jury of the possible effect of its Verdict under the doctrine of joint and several liability. Said argument was presented to the jury without objection by counsel for the Plaintiffs.

“Plaintiffs now seek a Judgment Notwithstanding the Verdict or a New Trial premised on the claim that the Defendant should not have informed the jury about the ‘collection aspects’ of their verdict. Nonetheless, during the course of trial, counsel for Plaintiffs themselves repeatedly informed the jury of the bankruptcy of Julia Hunting and their inability to join Julia Hunting as a Defendant or to ‘collect’ a verdict against her.

“By allowing the Defendant to argue joint and several liability in closing without objection, and by their own actions in apprising the jury of the bankruptcy of Julia Hunting, and therefore their own ‘collection’ problems, Plaintiffs waived their right to argue that the Court erroneously allowed the Defendant to argue joint and several liability, even assuming that their legal position is correct.”

Responsively, plaintiffs stated:

“Plaintiffs rely on prior arguments. Plaintiffs’ objection to this was clearly not waived as it was raised in their pretrial Motion in Limine, and ruled on adversely by the Court. Where such a motion is denied and the losing party is not advised to reassert his objection at trial, the objection is deemed preserved throughout trial without the necessity of making it repeatedly in front of the jury. Cf. Gammon v. Clark Equipment Co., 38 Wash.App. 274, 686 P.2d 1102 (1984). “Defendant opened the door for admission of otherwise inadmissible evidence of Julie Huntings bankruptcy, with Mr. Sundahl’s very first question to her on cross-examination. Accordingly Plaintiff's later reference to this fact was proper. Such comments did not in turn open the door, as Defendant suggests for Defendant’s prejudicial argument to the jury in closing as to the effect of joint and several liability on the Town.

“Defendant also suggests that the argument as to joint and several liability had no effect on the jury because they did not reach the issue of damages. Plaintiff contends that the very reason the jury did not get to the issue of damages was because of the prejudicial effect of being informed that even if you find just 1% of proximately caused negligence on the Town it will be wholly liable. The jury obviously felt that even if the Town was negligent it should not be required to pay for Julie Huntings’ negligence in addition to its own and that the only way to avoid that result was to make a finding of no proximate cause on the Town’s part, or to find no damages whatsoever, which clearly would have been against the weight of the evidence. The courtroom was not a proper place however, for dissatisfaction with the law of joint and several liability.”

We are faced with the universal principle that the jury should not consider the relative wealth of the plaintiffs and defendant in arriving at its verdict. Edwards v. Harris, Wyo., 397 P.2d 87 (1964); Tryon v. Naegle, 20 Ariz.App. 138, 510 P.2d 768 (1973); Hoffman v. Brandt, 65 Cal.2d 549, 55 Cal.Rptr. 417, 421 P.2d 425 (1966). Nor should the Town by a constituency of its electorate determine liability based on potential obligation to pay when, in fact, that is not true with insurance.

Contrary to Miller v. Lander, Wyo., 453 P.2d 889 (1969); Barber v. State Highway Commission, 80 Wyo. 340, 342 P.2d 723 (1959); and Annot., 93 A.L.R.3d 556, I would find that if you are going to argue attribution of payment obligation to a litigant, the availability of funds for payment should also be fair game for responsive argument.

In the wisdom of the nature of the law, it is provident to understand that everything known may not necessarily be told to the jury. It is, however, not equally justified for something to be related that is only half true or in essence actually untrue. See Coryell v. Town of Pinedale, supra.

My posture in these cases is that if information is to be provided for the jury, it should be available by instruction and defined by argument as directed to “tell the truth.” In adopting this posture, I do not disregard the logic and validation of Justice Rose in the original Burton v. Fisher Controls Company, Wyo., 713 P.2d 1137 (1986) opinion wherein he developed the concern that erroneous and misleading information as to the consequence of the jury’s verdict was created in the instructions which “misinformed the jury as to the consequences of its verdict.” Id. at 1145. This posture was not rejected by Justice Brown in dissent, wherein he ascertained necessity of a proper instruction which would avoid “a false impression with the jury as to who the parties were and the effect of any potential verdict.” Id. at 1150. Specifically relating to the philosophic content of these two comments in Burton v. Fisher Controls Company, Wyo., 723 P.2d 1214, 1222 fn. 6 (1986), reversing the first case, the court further analyzed:

“An academic inquiry for future cases is created as to whether the more appropriate arrangement would be to classify by actor and designate by given name or somehow otherwise clarify in the early part of the jury verdict as to who is only an actor and who is an actual defendant. In view of present statutory requirements that the jury be advised of the effect of their verdict, and the forthcoming provision of § l-l-109(b)(i), W.S. 1977, ‘Inform the jury of the consequences of its determination of the [percentage] of fault,’ it would seem that either through the verdict form or the statement of the issues the jury should be advised as to who among the actors had ‘available pockets’ and who was included only for determination of the computation of responsibility.”

I have not changed my opinion from that discussion in contending that if you are going to talk about who bears the responsibility for payment, the issue is open to all litigants and should be accurately presented if invoked by instruction. If we are going to define litigative parameters by responsibility for payment, then we should accurately communicate to the factfinder where that burden will be rested.¹

This subject is not unrelated to the comparable cases of litigant appeal to jurors as taxpayers. City of Columbia v. Myers, 278 S.C. 288, 294 S.E.2d 787 (1982); Byrns v. St. Louis County, Minn., 295 N.W.2d 517 (1980); Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974), overruled on other grounds, sub nom. Lollis v. Superior Sales Co., Inc., 580 P.2d 423 (1978); Annot., 33 A.L.R.2d 459; and Annot., 93 A.L.R.3d 556, involving taxpayer interest of jurors as a defense technique and also as uniformly condemned by appellate cases. No case was cited by either party here, and none found by this writer where anything similar to Coryell or this case invoking obvious argument to prejudice was ever appealed, let alone affirmed. A most appropriate case is Lufkin v. City of Bakersfield, 131 CahApp. 21, 20 P.2d 788 (1933), where defendant appealed on the basis of plaintiff’s jury argument that the city was insured after defendant had initiated the subject by closing argument:

“ * * * [T]hat if the jury brought in a verdict for the plaintiff in this case, it would lead to other damage actions against the city and the taking of taxpayers’ funds and turning them over to other people.” Id. 20 P.2d at 791.

Although not approving of the conduct of either litigant, the appellate court denied reversible error.

The standard of full and accurate advice is not unnoticed in Wyoming law where in an early comparative-negligence case it was said:

“ * * * If the jury is to be informed of the effect of its verdict, it ought to be correctly informed to the fullest extent.” Woodward v. Haney, Wyo., 564 P.2d 844, 847, fn. 4 (1977).

By complete agreement with that thoughtful ordinance, I reject the prejudicial infusion in final argument, and would reverse and remand for a new trial.

1 . It is stated in Annot., 93 A.L.R.3d 556, 560: "Attorneys well schooled and careful in making prompt and clearly stated objections to improperly offered evidence, and in saving exceptions to adverse rulings, possibly may be inclined not to observe the same degree of meticulous care upon hearing improper arguments by opposing counsel. Thus, although many appellate courts, in the interest of exercising every degree of possible fairness to the actual parties in the case, often may demand less than technical perfection in the preservation of the right to contend on appeal that a prejudicial argument was made in the trial court appealing to the jurors’ self-interest or prejudice as taxpayers, counsel should make every effort to observe the letter of applicable rules. Of course, a complete failure to raise proper objection may well be fatal, as may the failure to insist upon a definitive ruling."