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Kondaurov v. Kerdasha9/16/2005
use of her concern for her dog's injuries in the accident or because of her concern for the dog's physical or emotional condition thereafter.
The court refused that instruction and instead granted a plaintiff's requested instruction as follows:
Instruction 15
The defendants are liable for all the injurious consequences to the plaintiff which naturally resulted from the defendant's act, and it is immaterial that all such consequences might not reasonably have been expected to result.
The defense objected on the ground that all the elements of damages the plaintiff was entitled to recover were fully covered in the standard damage instruction and that in the circumstances of this case, instruction 15 would "open up their consideration of anything that she considers injurious."
On appeal, the defense argues that the trial court improperly permitted the jury to award damages to compensate the plaintiff for her emotional distress arising from concern for her dog while it was missing, as well as anguish over its injuries and its condition after the accident. The defense contends that under our law, an animal, however beloved it may be to its owner, is personal property. The defense argues that the measure of damages for an injury to personal property is the difference in its fair market value before and after the injury, and that its sentimental value to the owner cannot be recovered.
The plaintiff contends that the defense waived that argument by failing to make a contemporaneous objection in the trial court when evidence concerning the dog's unique value to the plaintiff was being offered. The plaintiff argues that in any event, her pleadings never claimed any damages for her emotional distress over the dog's condition. She says that the court's rulings only permitted the jury to take into account the totality of the circumstances of the accident to permit a fair assessment of the emotional distress she suffered. She says that the testimony concerning the dog was offered only to show aggravation of her pre-existing medical and mental conditions.
Analysis
A. Waiver
Our contemporaneous objection rule, expressed by Rule 5:25, provides: "Error will not be sustained to any ruling of the trial court . . . unless the objection was stated with reasonable certainty at the time of the ruling. . . ." An objection to the admissibility of evidence must be made when the evidence is presented. The objection comes too late if the objecting party remains silent during its presentation and brings the matter to the court's attention by a motion to strike made after the opposing party has rested. Poole v. Commonwealth, 211 Va. 258, 259-60, 176 S.E.2d 821, 822-23, (1970). On the other hand, an objection to the sufficiency of the evidence is properly made by a motion to strike, rather than when the evidence is first offered. Id. Obviously, the objecting party cannot be sure, nor can the court decide, until the offering party has rested, whether the various fragments of evidence have added up to a justiciable whole. See Vasquez v. Mabini, 269 Va. 155, 162-63, 606 S.E.2d 809, 812-13 (2005).
Here, the plaintiff was entitled to show the totality of the circumstances of the accident. The evidence concerning what happened to the dog during the collisions was admissible to show their violence and severity. Defense counsel was justified in allowing it to be presented without objection. His motion to strike challenged the sufficiency of the evidence only to establish a particular element of damages, and thus was timely. It was made as a predicate for the limiting instruction (Instruction T) that was later offered to pr
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