HARRELL, J.
Owner unhappiness with a series of repairs to a John Deere 744J Loader (Waste Hauler)
Although somewhat convoluted factually, at bottom, this case is about whether the circuit court abused its discretion at trial in two specific instances. Consolidated Waste argues that the trial court erred by (1) excluding evidence of a third round of later repairs, made by a company other than Standard Equipment, and (2) using a confusing verdict sheet supplied by Standard Equipment. For reasons to be explained more fully infra, we hold that the trial court did not abuse its discretion in either instance. Even had we been convinced that the trial court acted unreasonably, we are unable to declare that the decisions prejudiced actually (i.e., impacted harmfully) the verdict reached by the jury. See Crane v. Dunn, 382 Md. 83, 91, 854 A.2d 1180, 1185 (2004). Accordingly, we affirm the judgment of the circuit court.
Three separate sets of repairs were made to the Waste Hauler purchased by
Consolidated Waste purchased the new Waste Hauler from Standard Equipment on 7 June 2005 for $424,647.00.
On or about 16 February 2007, the Waste Hauler was sent to Standard Equipment. Approximately one month later, Standard Equipment informed Consolidated Waste that the repairs were complete. On 9 March 2007, Consolidated Waste paid the invoice for the repairs, in the amount of $17,630.23, but the machine turned out, when tested, to be inoperable completely and required further repair.
On 25 May 2007, four months after receiving initially the Waste Hauler, Standard Equipment completed the first set of repairs and returned the Waste Hauler to its owner in an operational condition. Consolidated Waste paid the invoice for the second round of initial repairs, which included only additional parts, in the amount of $2,803.91. The total cost to Consolidated Waste for the first set of repairs was $20,434.14.
On or about 6 December 2007, approximately seven months and 2153 additional hours of operating time, Consolidated Waste contacted Standard Equipment again about similar, if not identical, operational problems with the Waste Hauler, i.e., steering problems, slow operation, and difficulties with the "bucket" moving up and down. The Waste Hauler was transported to Standard Equipment for a second set of repairs and, on or about 16 January 2008, it was returned "repaired"
The Waste Hauler was returned yet again to Standard Equipment for correction, where it remained for approximately four months, from 25 January 2008 through 9 April 2008. Upon completion of this set of repairs, Standard Equipment returned the Waste Hauler to Consolidated Waste, which paid, under protest, the invoice of $16,853.92. Unlike the invoices for the repairs earlier in 2007, the invoice for the latter 2007 and 2008 repairs included itemization for labor and parts. The total cost to Consolidated Waste for the complete second set of repairs was $33,623.73.
On 8 December 2008, Consolidated Waste filed initially in the Circuit Court for Prince George's County a three count complaint alleging breach of contract, negligence, and unjust enrichment
Over a year after the complaint was filed, and approximately twenty months and 4404 hours of additional operating time of the Waste Hauler after the disputed repairs, on 31 December 2009, the Waste Hauler experienced hydraulic system problems again. Consolidated Waste took the equipment to Carter Machinery, which discovered metal debris in the hydraulic tank.
On 5 May 2010, the day prior to trial, Standard Equipment filed a "Motion in Limine to Exclude Expert Testimony of G.B. Critzer (`Critzer')"; a "Motion in Limine to Exclude Evidence of Repairs not in Controversy"
Trial consumed two days, the 6th and 7th of May 2010. Critzer testified as an expert witness for Consolidated Waste, opining about the proper industry standard to correct metal contamination in a hydraulic system and the role he played generally in supervising such repairs in
In submitting the case to the jury, the trial judge elected to use a verdict sheet proposed by Standard Equipment. Consolidated Wasted objected, contending that (1) Question 5 on the sheet was redundant and might be confusing to the jury in light of Question 4, and (2) Question 6 should not be present because it made inappropriate reference to the defense of contributory negligence. Questions 4, 5, and 6 asked:
The jury answered Questions 4 and 5 in the negative and, accordingly, left Question 6 unanswered.
The jury returned a verdict in favor of Standard Equipment, and, on 27 May 2010, judgment was entered. On 10 June 2010, Consolidated Waste noted timely an appeal to the Court of Special Appeals. On 18 March 2011, on our initiative and before the intermediate appellate court could decide the appeal, a writ of certiorari was issued. Consolidated Waste v. Standard Equipment, 418 Md. 397, 15 A.3d 298 (2011).
The nature of the type of evidentiary ruling represented by the grant of the Motion in Limine to Exclude Evidence of Subsequent Repairs is "left to the sound discretion of the trial judge...." Malik v. State, 152 Md.App. 305, 324, 831 A.2d 1101, 1112 (2003) (citing Martin v. State, 364 Md. 692, 705, 775 A.2d 385, 393 (2001)). When weighing the probative value of proffered evidence against its potentially prejudicial nature, an abuse of discretion in the ruling may be found "where no reasonable person would share the view taken by the trial judge." Brown v. Daniel Realty Co., 409 Md. 565, 601, 976 A.2d 300,
Even when a trial court is found to have abused its discretion, "it has long been the settled policy of this [C]ourt not to reverse for harmless error." Brown, 409 Md. at 613, 976 A.2d at 328 (internal quotation marks and citation omitted); See Crane, 382 Md. at 91, 854 A.2d at 1185 (stating that the burden is on an appellant to show that the trial court error is accompanied by prejudice). Prejudice exists when the particular error is determined likely to have affected the verdict—"it is not the possibility but the probability of prejudice which is the object of the appellate inquiry." Crane, 382 Md. at 91, 854 A.2d at 1185 (internal quotation marks and citation omitted).
Similarly, the decision to use a particular verdict sheet "will not be reversed absent abuse of discretion." Applied Indus. Techs. v. Ludemann, 148 Md.App. 272, 287, 811 A.2d 845, 854 (2002).
Maryland Rule 5-403 proclaims that, "[a]lthough relevant, evidence may be excluded if its probative value is outweighed substantially by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." Evidence is probative "if it tends to prove the proposition for which it is offered," Johnson v. State, 332 Md. 456, 474, 632 A.2d 152, 160 (1993), while "[e]vidence is prejudicial when it tends to have some adverse effect ... beyond tending to prove the fact or issue that justified its admission...." Hannah v. State, 420 Md. 339, 347, 23 A.3d 192, 196 (2011) (internal quotation marks and citation omitted). The danger associated with the misuse of evidence tends to outweigh substantially any probative value where other evidence, tending to prove the same, may be attained through less prejudicial means. See Norfolk S. Ry. Corp. v. Henry Tiller, 179 Md.App. 318, 334, 944 A.2d 1272, 1282 (2008) (quoting Eichel v. New York Cent. R. Co., 375 U.S. 253, 255, 84 S.Ct. 316, 317, 11 L.Ed.2d 307, 309 (1963)).
Consolidated Waste urges two reasons why evidence of the subsequent repairs by Carter Machinery should have been allowed. First, the subsequent repairs were probative in that they tended to prove the proper industry standard or duty for performing a complete hydraulic
Despite this probity, the trial court determined ultimately that the probative value of the subsequent repairs, in fact, was limited. There was other testimony and evidence providing the same information, while presenting a lesser "`likelihood of prejudice.'" See Norfolk S. Ry. Corp., 179 Md.App. at 334, 944 A.2d at 1282 (quoting Eichel, 375 U.S. at 255, 84 S.Ct. at 317, 11 L.Ed.2d at 307). Critzer was permitted to testify, as an expert, about the duty owed when correcting the hydraulic system of a Waste Hauler contaminated with metal debris. Critzer also testified about his understanding and role in overseeing such a procedure on the same model of equipment.
Having concluded that evidence of the probative value of the subsequent repairs was limited, the trial court was persuaded by Standard Equipment's argument as to the potential prejudice that would be worked by admission of the evidence to tip ultimately the scales in Standard Equipment's favor. A reasonable person could conclude, as the trial judge did, that evidence of the subsequent repairs could confuse or mislead the jury into concluding erroneously that Standard Equipment breached the contract or acted negligently simply because subsequent and similar repairs were made by Carter Machinery. Such evidence, in other words, could endanger the fair consideration of whether Standard Equipment was liable. Indeed, Critzer declined to testify that the problems with the Waste Hauler addressed by Carter Machinery were identical to previous problems experienced by the machine or the result of Standard Equipment's work on it. This is not surprising entirely, considering that the problems experienced by the Waste Hauler and Carter Machinery's repairs took place twenty months and over 4400 additional hours of operating time after the Waste Hauler underwent Standard Equipment's repairs that are at the core of the litigation. This attenuation of the potential probity of the proffered evidence was fair to consider in the balancing.
We conclude that the "particular circumstances" of the record in this case do not show there was an abuse of discretion. Pantazes, 376 Md. at 681, 831 A.2d at 444. The determination as to the subsequent repairs does not trespass "the fringe of what th[is] [C]ourt deems minimally acceptable." King, 407 Md. at 711, 967 A.2d at 807 (internal quotation marks and citation omitted). A reasonable trial judge could have determined that—given the potential for confusion and the predicted submission of other evidence that tended to prove the same point—the danger of prejudice outweighed substantially any probative value. Even assuming arguendo that the trial court abused its discretion in this regard, we still would decline to reverse on this record. The admitted evidence and testimony discussed supra supports the inference that the trial court's decision did not affect harmfully the jury's verdict. See Crane, 382 Md. at 91, 854 A.2d at 1185.
Rule 2-522(c) provides that "[t]he court may require a jury to return a verdict
Consolidated Waste, in its specific arguments offered here, fails to demonstrate how the trial court abused its discretion in utilizing Standard Equipment's proposed verdict sheet. Question 5 of the verdict sheet was neither redundant nor confusing to the jury, in light of Question 4. Question 4 of the verdict sheet asked whether Consolidated Waste proved that Standard Equipment was negligent, while Question 5 asked whether Consolidated Waste proved that any negligence found by the jury in its response to Question 4 caused damages. Consolidated Waste argues that Question 4 included all the elements of negligence, which the jury was instructed on properly, including causation and damages. By asking, in Question 5, if damages were caused by the negligence, the verdict sheet implied that Standard Equipment could have been negligent, but yet not caused any damages. Consolidated Waste claims that this separation of the elements of negligence was "confusing, redundant, and unnecessary."
The word "negligence" is used frequently in popular parlance to describe generally the breach of a duty, separate from the other legal elements that make the breach actionable—causation and damages—even on verdict sheets. As we explained in Collins v. National Railroad Passenger Corp., 417 Md. 217, 251-52, 9 A.3d 56, 76-77 (2010), cert. dismissed,
The trial court's decision seemed to be animated also by a practical concern—ensuring that the jury addressed all of the elements of Consolidated Waste's negligence claim. In sum, we conclude that a reasonable trial judge could "deem[] appropriate" the use of this special verdict. Rule 2-522(c).
Standard Equipment points out that the jury's negative answer to both Questions 4
Consolidated Waste quarrels also with Question 6, the part of the verdict sheet that asked the jury to consider potentially the defense of contributory negligence. Consolidated Waste argues that the previously-issued jury instructions were sufficient in and of themselves to present such a defense. As the argument goes, including the question on the verdict sheet influenced improperly the jury to find in favor of Standard Equipment. In particular, as Consolidated Waste argues, the presence of Question 6 on the verdict sheet "forced the jury to consider the issue of contributory negligence, in the context of determining the elements of negligence."
Consolidated Waste relies upon Fry v. Carter, 375 Md. 341, 825 A.2d 1042 (2003), to bolster its argument that the trial judge instructed the jury improperly on the defense of contributory negligence. In Fry, a roadside worker was killed by a passing tractor-trailer. See Fry, 375 Md. at 344, 825 A.2d at 1043. The family of the worker filed a wrongful death and survival action against the driver and the driver's employer. See id. At the end of trial, the court instructed the jury on the theory of "unavoidable accident," which is viewed not so much a defense as a mere denial of negligence. Fry, 375 Md. at 357, 825 A.2d at 1050-51. We held the instruction inappropriate. In light of the evidence of the defendant's negligence, the unavoidable accident instruction "diverted juror attention from the pivotal issue in the case—negligence." Fry, 375 Md. at 356, 825 A.2d at 1050.
Unlike Fry, the present case involves an actual legal defense, contributory negligence. Standard Equipment was "entitled to have the jury instructed on any theory of the defense that is fairly supported by the evidence." General v. State, 367 Md. 475, 485, 789 A.2d 102, 108 (2002); see also Sims v. State, 319 Md. 540, 573 A.2d 1317 (1990). Here, there was at least some dispute over the impact on the machine's operational problems and the root cause of those problems, i.e., the daily maintenance (or not) on the Waste Hauler performed by Consolidated Waste. In any event, Consolidated Waste concedes that the oral instruction on contributory negligence was appropriate. See Reply Brief of Appellant at 17 ("There is no question that ... [Standard Equipment] was entitled to such an instruction [on contributory negligence]." (Emphasis omitted)). Moreover, the instruction did not divert juror attention from the pivotal issue, which was whether Standard Equipment was negligent, for Question 6 was only to be answered if the jury answered Questions 4 and 5 in the affirmative. Indeed, Question 6 served actually a practical purpose— allowing the jury to separate the triable issues of negligence and contributory negligence. Such a practice is "useful in cases with multiple parties or issues." Owens-Corning, 343 Md. at 525, 682 A.2d at 1155. We are unwilling to conclude that the trial court abused its discretion by accepting a question about contributory negligence on the verdict sheet.