SCOVT affirms judgment for defendant in wrongful death claim, holding the evidence supported the verdict, no error in evidentiary rulings, that the speed at which the jury returned its verdict was not reversible error, and erroneous submission of comparative negligence charge to the jury was harmless.

 Shaffer v. Northeast Kingdom Human Services, Inc., 2025 VT 31 [6/20/2025]

REIBER, C.J.   In this wrongful-death action, plaintiff the Estate of Jared Shaffer, through Daniel Shaffer as administrator, appeals from a jury verdict and judgment in favor of defendant Northeast Kingdom Human Services, Inc.  The estate argues the court erred by instructing the jury on comparative negligence, by providing jury instructions that it claims were misleading, and by sustaining defendant’s objections to certain questions the estate attempted to ask defendant’s corporate representative at trial.  The estate further argues the jury verdict must be reversed because the jury deliberated too quickly and because the evidence overwhelmingly supported the estate’s claim that defendant acted negligently in performing its duty to oversee and monitor developmental disabilities services and care for decedent.  We find error in the proceedings but no prejudice to the estate and therefore affirm.

 

A.  Comparative Negligence . On appeal, the estate first claims that the trial court erred by denying its pretrial motion to strike the affirmative defense of comparative negligence.  We agree the trial court committed error in its analysis by conflating the identity of the “plaintiff,” the administrator of the estate, with decedent’s co-guardian and father, Daniel Shaffer.  However, the court acted within its discretion to consider the motion, determine that the defense of comparative negligence should remain because of disputed questions  of law and fact, and charge the defense to the jury at the conclusion of evidence.  The court’s error was rectified by correction in the jury charge and jury instructions and, ultimately, the estate was not prejudiced because the jury never reached the affirmative defense because it concluded there was no negligence on defendant’s part.  The estate also claims that the court should not have instructed the jury on comparative negligence, failed to preserve this objection to the jury instructions by not raising it below.

 

B.  Evidentiary Rulings. Next, the estate argues the trial court erred in preventing its attorney from questioning defendant’s corporate representative about the master grant agreement between defendant and the state, The court ruled, that the witness did not have an understanding of the document and therefore could not offer testimony about the document. On appeal, the estate argues that the witness should have known about the master grant agreement, because he was the designated corporate representative and a 2019 deposition notice to him indicated that the estate would question him about the agreements.  The Vermont Rules of Evidence provide “the testimony of a witness may be excluded . . . unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”  V.R.E. 602.  Where, as here, the witness testified that he had no knowledge of the agreements, the trial court did not abuse its discretion in prohibiting further questioning about the agreements.  

The estate next argues the court erred in preventing it from questioning the corporate representative about a report from a third-party audit of defendant’s operations. After defendant objected  , the court allowed the estate to ask additional questions after which the estate  turned to a completely different line of questioning.  At no point did counsel for the estate attempt to move the audit report into evidence, and the court never made a definitive ruling excluding the testimony or the report.  “Where counsel abandons a question or line of questioning before the court has ruled that he must do so, there is no basis for a claim of error.”  State v. Kasper, 137 Vt. 184, 206, 404 A.2d 85, 97 (1979)

C.  Jury Verdict.  Finally, the estate argues the jury failed to understand the court’s instructions and the speed at which the jury returned its verdict was reversible error.   There is no requirement that a jury deliberate any longer than may be necessary to agree upon a verdict. From the evidence in the light most favorable to the verdict, the jury could reasonably conclude that defendant did not owe decedent a duty to provide or oversee his medical care.  Therefore, the jury’s verdict must stand.   

Juries. Discussion of the case prior to submission.

 State v. Tristan Cameron, 2016 VT 134 [filed December 23, 2016] 

The Court ruled as a matter of first impression that it is improper for jurors in a criminal case to discuss the evidence and in-court events with each other prior to submission.

The Court cautioned trial judges who are presiding over jury trials to give an explicit pre-submission nondiscussion instruction, along with an instruction not to communicate with others about the case. The instruction can be given in an orientation of potential jurors or in case-specific preliminary instructions. To the extent that the trial judge is giving reminder instructions during the trial, they should specifically address intra-jury communications.

Other jurisdictions are unanimous in prohibiting such discussion in criminal cases, although the Court noted that some courts have authorized juror evidence discussions prior to the submission of the case to the jury in civil cases. See D. Anderson, Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During Trial, 174 Mil. L. Rev. 92 (2002) (discussing authorization for pre-deliberation discussion in civil cases in Arizona, Colorado, and District of Columbia).

In the case before it it was inadequate for the trial judge to give daily instructions to the jurors not to discuss the case with others, without specifically addressing discussions among jurors.

Jury tampering: trial court did not abuse discretion in concluding party’s assumed contact with juror during trial did not have capacity to affect verdict.

Labate v. Rutland Hospital, Inc., 2015 VT 128 [10/2/2015] 

EATON, J. This is an appeal of denial of a motion for new trial following a jury verdict in favor of defendants hospital and doctor in a case that claimed medical malpractice in connection with the birth of plaintiffs’ daughter. The jury found that the plaintiffs had failed to prove the standard of care applicable to each defendant. The motion for new trial claimed the verdict was tainted because a juror read an e-mail sent by the hospital to its employees during the trial.  On appeal, the plaintiffs assert that the court erred in concluding that the e-mail was incapable of influencing the jury’s verdict.  We affirm.

Whether an irregularity occurred is a question of fact for the trial court. “[T]he test is not whether the irregularity actually influenced the result, but whether it had the capability of prejudicing the verdict.” Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 414, 190 A.2d 695, 699 (1963) (emphasis added).

Whether alleged juror misconduct has prejudiced the trial process is a matter for the discretion of the trial judge. In this case, the trial court suggested there was insufficient proof an irregularity had occurred and concluded that even if it had, the content of the e-mail was such that it could not have affected the verdict. Our review is, therefore, to determine whether the trial court has abused its discretion on the issue of capacity to affect the verdict.

Broadly construed, the e-mail asserted that the hospital “had done nothing wrong”—in other words, that they had met the applicable standard of care, whatever that may be. The email stated in part, “From time to time things go wrong. If we feel we are at fault, we will apologize, take corrective action and, if appropriate, reach a settlement with the other party. In this case we did not feel we did anything wrong. We did not feel the physician did anything wrong. Outside experts, our insurance company and our attorneys all concurred. In these cases we will allow the case to come to court and let a jury decide. We clearly believe in this case that something tragic happened and we feel terrible for the family. The world is not always fair. Bad things sometimes happen. It does not always mean someone is at fault.”

The trial court was correct that the e-mail was primarily a denial of any wrongdoing that did not have the capacity to affect the verdict.   The email contained no discussion of the standard of care required of either defendant. Because the e-mail contained nothing regarding the nature of the standard of care, it had no capacity to influence the jury on the questions on which they found a failure of proof, i.e., what constituted the standard of care in the first instance. Even if the irregularity had occurred, the court’s determination that it had no capacity to affect the verdict was not an abuse of discretion.

Jury trial. Outcome of bench trial on claims for equitable relief reversed because jury trial on legal claims should have come first. Defense of equitable estoppel requires jury trial.

LeBlanc v. Snelgrove, 2015 VT 112 (filed 8/28/2015)

ROBINSON, J. This case arises from a landowner’s replacement of a boathouse on his property . The case includes claims for declaratory and injunctive relief, as well as damages on account of the landowner’s alleged trespass. Plaintiff neighbors challenge the trial court’s conclusions that the landowner was entitled to build the encroaching structure by virtue of a deeded easement and that they cannot prevail in a claim for trespass on account of consent or estoppel. Because the court improperly addressed the issues of consent and estoppel in derogation of the neighbors’ request for a jury trial, we reverse.

At a pretrial conference the day before the jury trial the court indicated that it would first try the boundary issues as a bench trial before having the parties present their other claims to the jury. Three days before the jury portion of the trial, the court orally issued its findings and conclusions from the bench trial as to the location of the boundary line. The court concluded that equitable estoppel prevents the Plaintiffs from now complaining about the design and location of the retaining walls or from arguing that the boathouse easement did not encompass the right to extend the boathouse and its associated retaining walls when necessary to repair or replace the boathouse. The Plaintiffs filed a timely motion for a new trial arguing that the court’s decision from the bench trial exceeded its permissible scope and deprived them of a jury trial. The court denied the Plaintiffs’ motion, reasoning that the Plaintiffs had sought injunctive relief in their complaint and that all of the issues before the court required application of the law, and were thus mixed questions of fact and law properly decided by the court.

On appeal the Plaintiffs renew their argument that the trial court’s approach deprived them of the right to a jury trial in connection with their claims for unlawful mischief, ejectment, trespass, and conversion, in which they sought legal damages as well as injunctive relief. The Plaintiffs argue that the court erred when it decided these issues in a bench trial since both parties demanded a jury trial on all issues triable by a jury, and neither party stipulated to a bench trial on these issues.

This Court has held that entitlement to a jury trial is dependent upon the relief requested. If the relief requested is equitable, no right to a jury trial exists. If the relief requested is legal, then the right to a jury trial attaches. The right to trial by jury attaches to claims traditionally tried in a court of law. In this case, the Plaintiffs have made a claim for damages based on causes of action for ejectment, unlawful mischief, and trespass. Actions for recovery of possession of real property and for damage to property were historically actions at law. Accordingly, the Plaintiffs were entitled to trial by jury on these legal claims.

The Plaintiffs ‘right to a jury trial also includes a right to trial by jury on the factual issues underlying the defense of equitable estoppel. See, e.g., Mellin v. Flood Brook Union School Dist., 173 Vt. 202, 222-23, 790 A.2d 408, 425-46 (2001) (jury entitled to decide facts underlying equitable-estoppel defense); see also Jamison, Money, Farmer & Co., P.C. v. Standeffer, 678 So. 2d 1061, 1067 (Ala. 1996) (holding that because evidence concerning defense of equitable estoppel was in dispute, issue was properly presented to jury); Ala. Power Co. v. Gielle, 373 So. 2d 851, 853 (Ala. Civ. App. 1979) (holding that question of whether plaintiffs’ predecessor had knowledge of utility pole located on subject property was question for jury in resolving defense of equitable estoppel in action for trespass and ejectment); Hunstein v. Fiksman, 615 S.E.2d 526, 528 (Ga. 2005) (“Estoppel is usually an issue of fact to be decided by the jury.” (quotation omitted)); Creech v. Melnick, 495 S.E.2d 907, 913 (N.C. 1998) (“[W]here the evidence raises a permissible inference that the elements of equitable estoppel are present, but where other inferences may be drawn from contrary evidence, estoppel is a question of fact for the jury, upon proper instructions from the trial court.”).

Where a case involves both legal and equitable claims, the jury verdict must come first, after which the court may issue findings on the equitable claims that must be consistent with the jury verdict. See V.R.C.P. 39(d). Reporter’s Notes—1985 Amendment, V.R.C.P. 39(d); Retrovest Assocs., Inc. v. Bryant, 153 Vt. 493, 495 n.1, 573 A.2d 281, 282 n.1 (1990). The trial court’s approach flipped this process.

The court should have first allowed the jury to decide the factual questions that underlay both the legal and equitable claims. In addressing the parties’ equitable claims for relief, the court should have then ensured that its own findings were consistent with the jury’s. Accordingly, the court was not authorized to determine in the first instance that the retaining wall did not constitute a trespass by virtue of any agreement of the parties. Likewise we cannot uphold the trial court’s determination that there was no trespass to the extent that it rests on the court’s application of the principles of equitable estoppel. Therefore we reverse the court’s determination that no trespass occurred.

The trial court’s rulings on the Plaintiffs’ claims for trespass, ejectment, and unlawful mischief are reversed, and those matters are remanded for a new trial consistent with this opinion.