Monteith Litzenberg, appellee, filed suit against John Anderson, David A. Bramble, Inc. (Bramble), and Cramaro Tarpaulin Systems, Inc. (Cramaro), appellants, for injuries sustained in a traffic accident. A jury in the Circuit Court for Cecil County (Cole, J. presiding) awarded appellee $349,400, including $213,000 for lost earning capacity. Appellants Anderson and Bramble base their appeal on an evidentiary ruling and a jury instruction. Appellant Cramaro perches its appellate contention on a different evidentiary ruling and the trial court's denial of a motion for new trial. Due to appellants' failure to preserve most of their appellate
Appellants Anderson and Bramble present the following questions, reordered and slightly rephrased as:
Appellant Cramaro presents the following issues, rephrased as:
On 22 April 1993, at approximately 3:00 p.m., Mr. Anderson was driving a dump truck loaded with stone in Cecil County. At the time, Mr. Anderson was acting within the scope of his employment for David A. Bramble, Inc., a highway construction contractor. The truck driven by Mr. Anderson was owned by Bramble. To ensure that debris would not blow off from the truck bed, the truck was equipped with a tarpaulin load covering system manufactured and sold by Cramaro Tarpaulin Systems. This particular tarp system used a series of pulleys, cranks, and steel cables, enabling the operator to crank the tarp toward the front of the truck in an accordion-like fashion so that the truck could be loaded and unloaded. The cranking system could also extend the tarp over the truck bed to cover a load. Cramaro sold the tarp to Bramble approximately one year before the accident occurred. The tarp was installed onto the truck that Mr. Anderson was driving by Bramble personnel.
Mr. Anderson, while heading south on Maryland Route 213, approached a bridge spanning the C & D Canal. At this time, the tarp system was extended to cover the load contained in the truck bed. As the truck began to traverse the bridge, Mr. Litzenberg, a twenty-two year old construction worker, was driving in a pick-up truck behind Mr. Anderson. While on the bridge, the tarp somehow became loose at the back of the truck bed and began to blow out into oncoming traffic. The tarp struck an oncoming vehicle, causing its driver to lose control. The oncoming vehicle crossed the dividing line and crashed, essentially head-on, into Mr. Litzenberg's truck. At the time of the accident, Mr. Litzenberg was employed full-time by his father's construction company and also worked part-time in his own rental property venture.
A state trooper who arrived at the scene after the accident testified at trial that he observed a piece of cable that was a part of the tarp system, noting that the cable was either frayed or broken through. The trooper instructed Mr. Anderson to remove those portions of the tarp system that remained on the road and then to proceed across the bridge to a nearby Department of Motor Vehicles (DMV) parking lot. Mr. Anderson did as he was instructed. Anthony Dimaggio, Director of Truck Operations for Bramble, testified at trial that he met Mr. Anderson at the DMV parking lot.
The tarp and cables remained on the truck until an adjuster for Bramble's insurer inspected the tarp system. After the inspection, Bramble maintenance personnel removed the tarp system and discarded its remnants except for a segment of cable that Mr. Dimaggio had cut off. According to Mr. Dimaggio's trial testimony, he retained that particular segment of cable because he believed
Appellee filed an Amended Complaint in the Circuit Court for Cecil County alleging negligence on the part of appellants Anderson and Bramble and alleging negligence and defective design on the part of Cramaro. In 1996, a jury trial was held from 22 January to 26 January, inclusive. At trial, Mr. Litzenberg's physician testified that, as a result of the neck and back injuries sustained by appellee in the accident, he would not be able to lift more than twenty pounds, and therefore, would be unable to perform construction work. The jury returned a verdict in favor of Mr. Litzenberg and awarded him $349,400 in damages, $213,000.00 of which was compensation for future loss of earnings. Following the circuit court's denial of appellants' post-judgment motions, Anderson, Bramble, and Cramaro timely noted this appeal. Additional facts will be supplied as necessary in our discussion of the various issues.
Appellants Anderson and Bramble (hereinafter collectively referred to as "Bramble" in the Analysis) first contend that the trial court erred by not properly instructing the jury concerning the presumption that arises against a spoliator of evidence. In reviewing the propriety of a trial court's jury instruction, we must determine whether the requested instruction was a correct exposition of the law and whether that law was applicable in light of the evidence before the jury. See, e.g., E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 633 A.2d 485 (1993). The rationale behind the later requirement is that instructions not supported by the evidence have the capacity to lead the jury away from the evidence actually presented.
At the close of all the evidence, the trial court initially instructed the jury concerning Bramble's liability as follows:
Appellee objected to the form and substance of that instruction and persuaded the court to give the following new instruction:
This instruction prompted Bramble's counsel to counter with an objection of his own:
The trial court overruled Bramble's objection to the revised instruction.
In Miller v. Montgomery County, 64 Md.App. 202, 214-15, 494 A.2d 761, cert. denied, 304 Md. 299, 498 A.2d 1185 (1985), Judge Bloom, writing for this Court, explained the effect spoilation of evidence might have on the spoliator's case as follows:
Miller makes clear that two levels of inferences could have been drawn from Bramble's discarding most of the tarp system. If the jury concluded that Bramble's decision to throw away the tarp was merely the product of innocent mistake, the jury could still presume that, at the time of the accident, the tarp was in a defective, or otherwise unfavorable, condition. If, on the other hand, the jury was convinced that Bramble had a fraudulent intent to conceal the nature of the tarp's defective condition, the jury could also infer Bramble's consciousness of the fact that its case was weak. Thus, under Miller, an adverse presumption may arise against the spoliator even if there is no evidence of fraudulent intent. As such, the judge's revised instruction fully comported with our pronouncement of Maryland law concerning spoilation of evidence in Miller and was, therefore, an accurate statement of Maryland law on this issue. See generally Maryland Civil Pattern Jury Instructions MPJI 1:7, cmt. 2. (3d ed. & 1996 Supp.).
Despite Bramble's assertions to the contrary, we recognize the logic of Judge Bloom's analysis. Simply put, one does not ordinarily withhold evidence that is beneficial to one's case. Indeed, the converse is equally true: one maintains evidence that one believes will be beneficial to one's case. Further, our analysis in Miller derives support from the Court of Appeals's opinion in Larsen v. Romeo, 254 Md. 220, 255 A.2d 387 (1969). There, Larsen filed suit against Romeo resulting from damages sustained when a truck owned and operated by Romeo rear-ended Larsen's vehicle. At trial, Larsen's witnesses testified that the accident was due to a sudden and unexpected brake failure. The Court held that, because Larsen showed that the injury must have resulted either from Romeo's negligence or from a sudden and unexpected brake failure, his claim could not survive a directed verdict unless he eliminated brake failure as the proximate cause of his injuries.
Id. at 228, 255 A.2d 387. Essentially, the Court was drawing an inference against Romeo, the spoliator, by concluding that because the hose was discarded, the jury could not assume that the hose was the cause of the brake failure. In other words, because Romeo discarded the hose, he could not rely on it as evidence inferring brake failure rather than negligence. See also Maszczenski v. Myers, 212 Md. 346, 355, 129 A.2d 109 (1957) (recognizing inference that suppressed evidence would be unfavorable even though court found no indication from facts of that case that evidence was discarded intentionally).
Bramble correctly notes that the presumption that arises from a party's spoilation of evidence cannot be used by appellee as a surrogate for presenting evidence of Bramble's negligence in his prima facie case. Maryland Rule 5-301 (a) addresses the effect of presumptions in civil actions by essentially codifying the approach to presumptions taken by the Court of Appeals in Grier v. Rosenberg, 213 Md. 248, 131 A.2d 737 (1957). Grier involved an automobile tort action wherein the Court established a rebuttable presumption that the driver of a vehicle is the actual owner's agent. In explaining the effect of this presumption, the Court stated:
Id. at 254-55, 131 A.2d 737. In other words, a presumption does not necessarily shift the burden of persuasion. Rather, it merely satisfies the burden of going forward on a fact presumed and may satisfy the burden of persuasion if no rebuttal evidence is introduced by the other side. When the responding party introduces rebutting evidence, the presumption often is sufficient to generate a jury question on the issue, despite the fact that the beneficiary of the presumption has not produced any other evidence on the subject. See generally, Alan D. Hornstein, The New Maryland Rules of Evidence: Survey, Analysis and Critique, 54 Md. L.Rev. 1032, 1048-49 (1995). Stated differently, the party favored by the presumption is not relieved of the requirement of presenting evidence to establish a prima facie case as to those issues for which he bears the burden of proof if the adverse party sufficiently rebuts the presumption. In such instances, the presumption merely enhances the probative value of other evidence adduced. We, therefore, disagree with Bramble's assertion that the trial judge's revised instruction regarding spoilation of evidence effectively shifted the burden of proof as to liability on to Bramble.
Bramble also contends that the circuit court erred in admitting evidence as to the present and future costs of hiring a replacement contractor to perform the work that appellee had previously been able to perform in connection with his part-time residential real estate rehabilitation and rental business.
Mr. Litzenberg's income tax returns for 1991 through 1994, inclusive, were introduced in evidence.
To establish his claim for lost future earnings or earning capacity, Mr. Litzenberg relied upon the testimony of Walter Stoeppelworth, an expert in the fields of remodeling, construction renovation, and estimations, to determine the cost of hiring a replacement. Mr. Stoeppelworth testified to how he arrived at his conclusion concerning the cost appellee would incur by hiring contractors to perform the work that plaintiff had been able to perform himself. He testified that:
Rick Gaskins, an expert in forensic economics and accounting, also testified on appellee's behalf. Based on Mr. Stoeppelworth's analysis, Mr. Gaskins concluded that the average value of the work appellee performed on his properties from 1989 to 1992 inclusive was $12,429.00 per year. Mr. Gaskins took that amount and increased it by the historical average for inflation and productivity increases from the time of the accident until the end of Mr. Litzenberg's expected work life. He then reduced that figure to present value to arrive at the amount of appellee's loss.
At the head of Bramble's attack lies the contention that Mr. Stoeppelworth's and Mr. Gaskins's testimony were irrelevant because appellee's renovation and rental business had not shown a history of earnings. Bramble advances the following additional appellate contentions to overturn appellee's impairment of earnings award:
As part of our analysis of this appeal, we found it instructive to consider not only what Bramble contended at trial but also what it failed to assert. Turning to the latter three arguments, we conclude that none are properly before this Court because they were not first raised with the trial judge. The only objection to the testimony of Mr. Stoeppelworth that Bramble cites in their brief is the following exchange.
THE COURT: Was that plead?
[APPELLEE'S COUNSEL]: That is correct, Your Honor.
THE COURT: Yes. Overruled. It's in for what it's worth.[
Ordinarily, our review of points or arguments that the parties fail to raise with the trial court is discretionary. Md. Rule 8-131(a). See, e.g., State v. Bell, 334 Md. 178, 188-91, 638 A.2d 107, 113-114 (1994); Harmony v. State, 88 Md.App. 306, 316-17, 594 A.2d 1182 (1991). This rule applies with equal force when a party seeks to appeal a trial judge's decision concerning the admissibility of evidence at trial. Unless a party properly raises an objection with the trial court, any error is deemed waived and ordinarily will not be considered on appeal. E.g., Kovacs v. Kovacs, 98 Md.App. 289, 306-07, 633 A.2d 425, 433-34 (1993), cert. denied, 334 Md. 211, 638 A.2d 753 (1994). See United States v. Mezzanatto, 513 U.S. 196, 203, 115 S.Ct. 797, 802, 130 L.Ed.2d 697 (1995) ("During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are routinely honored by trial judges"). Moreover, each party must separately object to a particular error to preserve his or her individual appellate contentions. Graham v. State, 325 Md. 398, 410-11, 601 A.2d 131, 137 (1992); Fireman's Fund Ins. Co. v. Bragg, 76 Md.App. 709, 719-20, 548 A.2d 151, 156 (1988).
A corollary to the aforementioned axiom addresses the specificity of objections raised at trial concerning the admission or exclusion of evidence. Generally, Maryland litigants are not required to state the specific ground for an objection unless requested to do so by the trial court. Md. Rules 2-517; 3-517; 4-323.
Upon applying Maryland jurisprudence regarding preservation of objections for appellate review to the excerpted colloquy between the trial judge and Bramble's counsel, we conclude that Bramble presented the trial judge with only two grounds for excluding Mr. Stoeppelworth's testimony on relevancy grounds. First, the testimony should not have been admitted because appellee's business was not profitable. Second, it was inappropriate to use the value of work performed in the past to predict what the value of appellee's future services in his renovation-rental business would have been had he not been injured. In particular, Mr. Stoeppelworth's testimony was based on the assumption that appellee would continue to purchase residential buildings at the same rate as in the past and, therefore, have a continued call to use his various skills in the business. In our review, such an assumption, however, calls for speculation that transcends the bounds of reasonable certainty. Our reading of Bramble's brief failed to locate the later contention. Objections or arguments not raised in a brief are deemed waived. See Monumental Life Ins. Co. v. United States Fidelity & Guar. Co., 94 Md.App. 505, 617 A.2d 1163, cert. denied, 330 Md. 319, 624 A.2d 491 (1993).
Furthermore, Bramble has not directed our attention to, nor has our own review of the record extract uncovered, an objection concerning whether appellee's evidence, if relevant, sufficiently established a claim for lost earning capacity. Thus, to the extent that Bramble's appellate contentions are appropriately couched as sufficiency of the evidence claims rather than relevancy claims, such arguments are not properly before this Court.
We begin our analysis by noting that relevant evidence is evidence that tends to prove a proposition that is properly provable.
Kelly Catering v. Holman, 96 Md.App. 256, 271, 624 A.2d 1300, aff'd, 334 Md. 480, 639 A.2d 701 (1994) (quoting Myers v. Celotex Corp., 88 Md.App. 442, 454, 594 A.2d 1248 (1991), cert. denied, 325 Md. 249, 600 A.2d 418 (1992)).
Evidence is material if it establishes facts to which the applicable substantive law assigns legal consequences in the case. Stated differently, evidence is material when a link exists between the factual proposition that the evidence tends to prove and the substantive law. The substantive law sets the periphery of those facts that have legal consequences and are, therefore, material. This restriction fosters rational fact-finding, i.e., it prevents evidence that is not pertinent from being misused by the factfinder. G. Lilley, An Introduction to the Law of Evidence 23-24 (2d ed.1987). Evidence is, therefore, material "whenever it tends to establish the existence or nonexistence of an element (of a charge, claim, or defense) that is derived from the controlling substantive law." Id. at 25. Conversely, evidence is immaterial when it bears "no relationship to the legal issues raised by the substantive law made applicable by the pleadings...." Id. n.5.
We read Bramble's relevancy contention as postulating that, as a matter of law, appellee cannot recover for lost earning capacity because he had not shown that his business had demonstrated a history of profitability. To analyze properly Bramble's contention, we turn next to the substantive law underlying damages for lost earning capacity.
One injured by another's wrong is entitled to compensation for all pecuniary losses sustained. One component of pecuniary loss recoverable by an injured person amounts to any loss, impairment, or diminution of his earning capacity in consequence of his injury. Monias v. Endal, 330 Md. 274, 623 A.2d 656 (1993); Delph v. Ammons, 239 Md. 662, 212 A.2d 504 (1965). Essentially, an accident victim is entitled to be compensated to the extent his or her power to work in an activity that produces income has been reduced by the injury. There is no fixed rule by which the amount of damages for diminution or impairment of earning capacity may be definitively measured. Instead, all relevant facts on the issue must be considered. Brooks v. Fairman, 253 Md. 471, 252 A.2d 865 (1969).
Impairment of earning capacity is measured by the "lost capacity to earn, rather than what a plaintiff would have earned." See 4 F. Harper, F. James, O. Gray, The Law of Torts, § 25.8 at 548-47 (2d ed.1986), quoted with approval in, Monias v. Endal, 330 Md. 274, 281 n. 4, 623 A.2d 656 (1993). It is generally recognized that impairment of earning capacity seeks to compensate the plaintiff for a reduction in his ability to earn through his personal services. See, e.g., Fairbanks v. Nesbett, 432 P.2d 607
Conte v. Flota Mercante Del Estado, 277 F.2d 664 (2d Cir.1960). Accord Uryasz v. Archbishop Bergan Mercy Hosp., 230 Neb. 323, 431 N.W.2d 617 (1988). See generally, Restatement (Second) Torts §§ 906(b) & cmt. 6; 924(b) & cmt. d.
Proof of impairment of earning capacity does not require the degree of specificity as does proof of loss of future wages. See, e.g., Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); T.J. Allen Distrib. Co. v. Leatherwood, 648 S.W.2d 773 (Tex.App.1983). As a general rule, any evidence is admissible that would assist the fact finder in determining the plaintiff's earning capacity before the injury and the potential decrease in that capacity after the injury, including rates and wages paid to those in the same vocation in which the plaintiff engages. See, e.g., Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949).
Appellant contends that one cannot recover future profits from a business that has not demonstrated an ability to make consistent profits in the past. Bramble's reliance on the authority it cites in its brief is misplaced. Although profits are a separate item of damages in several causes of actions, including: (1) conversion or destruction of property used by a plaintiff for purposes of making a profit; (2) actions in which an individual's business has been harmed by a defendant's anti-competitive conduct; or (3) breach of contract, profits are not a separate item of damages in a personal injury case. Shewry v. Heuer, 255 Iowa 147, 121 N.W.2d 529, 535 (1963); Greyhound Lines Inc. v. Duhon, 434 S.W.2d 406, 415 (Tex.Civ.App. 1968); Featherly v. Continental Ins. Co., 73 Wis.2d 273, 243 N.W.2d 806, 811 (1976). See generally, Slagle, The Role of Profits in Personal Injury Actions, 19 Ohio St. L.J. 179, 180 (1958) Instead, when an accident victim is in business for himself, loss of profits is essentially an element of loss of earnings from personal services and, therefore, is used as an aid in calculating damages for impairment of earning capacity. See, e.g., Mihalek v. Cichowski, 4 Conn.App. 484, 495 A.2d 721, 722-23 (1985); Hansen v. Standard Oil Co., 55 Idaho 483, 44 P.2d 709, 714 (1935); Doran v. Culver, 88 Or.App. 452, 745 P.2d 817, 820 (1987), review denied, 305 Or. 102, 750 P.2d 496 (1988); Baxter v. Philadelphia & R.R. Co., 264 Pa. 467, 107 A. 881, 882-83 (1919). The reason behind this rule is that damages for lost profits are not necessarily the probable consequence of a personal injury. As is
Because impairment of earning capacity is not measured by what the claimant actually earned, it follows that a plaintiff can recover for impairment of earning capacity without establishing a prior track record of earnings. Indeed, there are a myriad of situations in which courts have permitted accident victims to recover for lost earning capacity although they were earning nothing at the time of the injury. See, e.g., Bishop v. Poore, 475 So.2d 486 (Ala.1985) (unemployed); McCormack v. City and County of San Francisco, 193 Cal.App.2d 96, 14 Cal.Rptr. 79 (1961) (widow); Dowling v. Hebert, 146 Conn. 516, 152 A.2d 642 (1959) (wife who worked for family business without pay); Callaway v. Miller, 118 Ga.App. 309, 163 S.E.2d 336 (1968) (school child); Prince v. Lott, 369 Mich. 606, 120 N.W.2d 780 (1963) (plaintiff serving sentence of imprisonment); Lesniak v. County of Bergen, 117 N.J. 12, 563 A.2d 795 (1989) (infant); Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 528 N.Y.S.2d 8, 523 N.E.2d 284 (1988) (newborn); Doremus v. Atlantic C. L. R. Co., 242 S.C. 123, 130 S.E.2d 370 (1963) (child); McLaughlin v. Chicago, M. S.P. & P. R. Co., 31 Wis.2d 378, 143 N.W.2d 32 (1966) (priest who had taken vow of poverty); Richmond v. Zimbrick Logging, 124 Or.App. 631, 863 P.2d 520 (1993), review denied, 318 Or. 459, 871 P.2d 123 (1994) (unemployed). One reason for this rule is that a defendant is not entitled to a windfall merely because the plaintiff attached more value to his time for purposes other than earning money when the injury occurred.
In applying the general rule that one can recover for impairment of earning capacity without actual earnings to the case of a self-employed plaintiff, we conclude that the fact that a business has not yet turned a profit does not automatically bar a self-employed plaintiff from recovering for lost earning capacity. It follows, therefore, that a self-employed accident victim is entitled to introduce evidence of his earning capacity in that business despite the fact that the business had not yet established a history of earnings. See, e.g., Ford v. Board of County Comm'rs, 677 P.2d 358, 360 (Colo.App.1983) (fact that business did not show distributed profit in its two years of operation before decedent's death did not require exclusion of evidence of impairment of decedent's earning capacity). Furthermore, an entrepreneurial plaintiff may recover for loss of earning capacity even though the books of the business indicate that it is operating at a loss. Delott v. Roraback, 179 Conn. 406, 426 A.2d 791, 794 (1980) (plaintiff entitled to compensation for earning impairment even though plaintiff's income tax returns showed loss for years in question); Laing v. American Honda Motor Co., 628 So.2d 196, 204-05 (1993), cert. denied, 635 So.2d 239 (holding that plaintiff was entitled to recover for lost earning capacity although his tax returns reflected a loss for six consecutive years). Accordingly, we conclude that testimony concerning impairment of earnings is relevant, and therefore admissible,
Regarding Cramaro's liability, we faithfully reproduce below the entire argument contained in Cramaro's brief:
In transcribing this language into our opinion, we did not omit references to cited authority. Cramaro's briefing of this contention is completely devoid of legal authority.
Appellant Cramaro asserts that because insufficient evidence was adduced at trial to support appellee's claim for lost future earnings, the circuit court should have granted its Motion for New Trial.
Buck v. Cam's Broadloom Rugs, 328 Md. 51, 57, 612 A.2d 1294 (1992) (quoting Mack v. State, 300 Md. 583, 600, 479 A.2d 1344 (1984)). Therefore, our review is governed by an abuse of discretion standard. Id.
In reviewing appellants' record extract of this case, we discovered that the first time Cramaro contended that appellee had not adduced sufficient evidence to prove his claim for loss of earning capacity was in its post-trial motion. A trial court may grant a new trial on the basis of an issue that could
Accordingly, we conclude that the trial judge did not abuse his discretion in denying Cramaro's motion for mistrial and shall not review on the merits Cramaro's contention that insufficient evidence was adduced to support appellee's impairment of earnings award. Furthermore, as we noted, supra, with regard to the briefing of Cramaro's first appellate contention, Cramaro has failed to furnish this Court with any authority supporting its position. Mindful of our discussion in Part III, supra, we deem this contention waived as well.
Cramaro's counsel, however, fails to articulate the proposition he believes these cases stand for or where in his arguments these authorities should be inserted.