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Malinowski v. United Parcel Service3/11/2002
This case concerns a horrific accident that resulted in the death of a young man, Michael Malinowski (Michael). His mother, the plaintiff Elaina Malinowski (plaintiff), valiantly sought to recover for her loss by filing a wrongful death action. She is before this Court for a second time, after a second jury rendered its verdict for the defendants. She alleges that the trial justice committed a variety of errors. However, we must affirm the decisions of the trial justice and the judgment of the Superior Court because the resolution of the issues raised on appeal do not warrant a third trial.
I. Facts and Travel
In 1991, plaintiff's fourteen-year-old son, Michael, was tragically struck and killed by a tractor-trailer truck driven by defendant Stephen F. Hogan (Hogan), an employee of the United Parcel Service, Inc. (UPS) (collectively referred to as defendants). Approximately two years later, plaintiff filed a wrongful death action in the Superior Court. The first jury trial resulted in a verdict for defendants, and plaintiff appealed. On appeal, this Court held that the jury instruction on the sudden emergency doctrine erroneously permitted the jury to absolve Hogan from the duty to operate his vehicle with due care at all times. See Malinowski v. United Parcel Service, Inc., 727 A.2d 194, 195-96 (R.I. 1999) (Malinowski I). Further, we held that Hogan had not been faced with a sudden emergency before striking Michael. See id. at 197. On remand, we instructed the trial justice to include jury instructions addressing the standard of care that motor vehicle operators owe to children who are in or near a roadway provided by G.L. 1956 § 31-14-3 and G.L. 1956 § 31-18-8.
After the second trial, the jury again returned a verdict for defendants. The trial justice denied plaintiff's motions for judgment as a matter of law and a new trial. The plaintiff timely appealed.
II. Admissibility of the Tachograph
The plaintiff contends that the trial justice erred by excluding the actual speed recording from the tachograph. A tachograph is a recording device located in many commercial trucks that charts the movement and speed of the vehicle. See Karen Smith Cooney, Comment, The Evidentiary Use of Tachograph Charts in Civil Litigation, 92 Dick. L. Rev. 483, 483 (1988). In the legal context, tachograph recordings are commonly used to prove the speed at which a vehicle was traveling at the time of an accident. See id.
UPS required the installation and operation of a tachograph in each of its vehicles. Thus Hogan's truck was equipped with the device on the day of the accident. After the accident, UPS dispatch supervisor James Kershaw (Kershaw) drove the truck to the East Providence police station. While at the station, Kershaw removed the tachograph disk (containing all relevant recordings) and placed it in his pocket. The tachograph revealed that Hogan was driving approximately thirty-two miles per hour at the time of the accident. However, before the accident, UPS allegedly found that the tachograph gear apparatus was defective. At the second trial, Kershaw testified that a part had been ordered to correct the problem. It was UPS's position that because of the defective gear, the tachograph could not have accurately recorded the truck's speed on the day of the accident. Thus UPS challenged the admissibility of the tachograph by filing a motion in limine.
The parties agreed that any testimony about the patterns of acceleration and deceleration recorded by the tachograph were admissible. The trial justice reserved ruling on the admissibility of the actual speed of the truck as recorded by the tachograph until such evidence was proffered
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