Untimely appeal. Appeal period, tolled once by a motion for new trial, cannot be tolled again by a motion to “reconsider” under Rule 59(e).

Fagnant v. Foss, 2013 VT 16A (mem.) (August 30, 2013) (on reargument).
A motion to reconsider an order disposing of a time tolling post-trial motion of the kind enumerated in Rule 4(a)(4) does not again terminate the running of the time for appeal.

This Court's March 15, 2013 opinion is withdrawn. The appeal is dismissed as untimely filed.

Fagnant v. Foss, 2013 VT 16 (March 15, 2013)
Robinson J. Plaintiff appealed after the court denied plaintiff’s motion to reconsider the denial of plaintiff’s motion for new trial. Defendant contends the appeal is untimely. Although a timely motion for new trial terminates the running of time for the appeals period, defendant argues that once a motion for new trial is denied, then the full time for filing a notice of appeal begins to run again, unaffected by defendant’s later motion to reconsider. We hold plaintiff’s appeal was timely filed.

A “motion to reconsider” is not expressly recognized in the Vermont Rules of Civil Procedure. The Court will treat a motion to reconsider as a motion under V.R.C.P. 59(e) that terminates the running of the appeal period.when the timing and content of the motion to reconsider indicate that it was, for all intents and purposes, a motion to alter or amend. Although Plaintiff’s motion for reconsideration here was directed at the court’s denial of a Rule 59 motion, rather than at its initial judgment, it was essentially a motion to alter or amend, and the appeal period did not begin to run again until the court ruled on plaintiff’s motion to reconsider. Plaintiff’s appeal was timely filed.

Torts. Causation. SCOVT reverses defendant’s verdict in low impact whiplash case because causation charge required jury to find the injury was reasonably foreseeable.

On reargument the Court's March 15, 2013 opinion which follows is withdrawn. The appeal is dismissed as untimely filed .Fagnant v. Foss, 2013 VT 16 (Robinson, J.) 

This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant’s conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court’s instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff’s injuries, even though “duty” and “breach” had been established as a matter of law, and we reverse.

The court included the following paragraph at the end of the proximate cause instruction:

“The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.”

What makes this instruction problematic, is the court’s linkage of “foreseeability” to the concept of proximate cause, particularly where the defendant’s breach of a legal duty to plaintiff was established as a matter of law and the only issues left to the jury were causation and damages. The foreseeability of the consequences of a defendant’s actions is relevant only to the question of whether the defendant had and breached a legal duty to the plaintiff.

It has been so long settled in this jurisdiction that proximate cause relates only to cause-in-fact, with no foreseeability required, that extended discussion is unnecessary. Although relevant to the determination of duty and breach, foreseeability “is not a factor in determining proximate cause. A defendant who has breached a legal duty to a plaintiff is liable for all the injurious consequences that flow from the negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law’s notice.

In this case, rather than clearly instructing the jury that defendant was liable for all injurious consequences that flowed from her admitted breach of a duty to plaintiff, the trial court expressly directed the jury to consider the foreseeability of the type of injury plaintiff alleged as an element of proximate cause, even though duty and breach had been established as a matter of law by the court and the jury had been so instructed.

Defendant’s closing argument, in addition to directly refering to the instruction on foreseeability, reiterated the notion that “this kind of event doesn’t cause injury.” In light of the court’s instruction concerning foreseeability and defendant’s focus on that instruction in closing, the jury could easily have concluded that plaintiff was not entitled to recover for her ongoing injuries, even if they were caused by defendant’s actions, because the kind of injuries she suffered was not foreseeable. Thus, we find the instruction was prejudicial.