Jones v. Cyprus Plateau Mining, Corp.

This opinion is subject to revision before final publication in the Pacific Reporter.

IN THE SUPREME COURT OF THE STATE OF UTAH

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Seventh District, Carbon County

The Honorable Bryce K. Bryner

Attorneys: Dennis J. Conroy, Fred R. Silvester, Clark A.

McClellan, Salt Lake City, for plaintiff

Kenneth W. Yeates, Jeremy M. Hoffman, D. Matthew

Moscon, Salt Lake City, for defendant

DURHAM, Justice:

Defendant Cyprus Plateau Mining Corporation (Cyprus) appeals from a judgment in favor of

plaintiff Thayde L. Jones. Cyprus also appeals from the district court's denial of its motion for a

new trial. We affirm.

BACKGROUND

In 1990, a large rock face fell on Jones, injuring him while he worked in Cyprus's Star Point

No. 2 Mine as an employee of J.S. Redpath Company (Redpath). Redpath was under contract to

Cyprus to construct tunnels between coal seams at the mine. The area contained vertical ground

displacement, known as "graben," that makes tunneling particularly difficult. Jones was

operating a hand-held "jack leg" drill, attempting to create blasting holes in the rock face, which

dislodged and injured him.

In 1992, Jones filed a complaint against Cyprus, alleging that it negligently breached its

nondelegable duty to maintain mine safety and to warn him of the rock face's danger. At trial,

the jury returned a verdict for Jones, apportioning 25% of the fault to Redpath and 75% to

Cyprus. Cyprus moved for a new trial, alleging errors of law in the trial court's jury instructions

and in the exclusion of references (both as direct evidence and during cross-examination of

Jones's expert) to the Mine Safety and Health Administration's (MSHA) failure to issue Cyprus

a citation in connection with Jones's accident.

JURY INSTRUCTIONS

Cyprus contends that the district court's jury instruction 41, regarding Cyprus's nondelegable

duties, constituted error because it misstated Utah law and was vague and potentially confusing.

The district court ruled that jury instruction 41 was proper because it was taken directly from the

Model Utah Jury Instructions (MUJI).⁽¹⁾ While we affirm this ruling, we explicitly distinguish

Utah law from the MUJI. That is, the MUJI are merely advisory and do not necessarily represent

correct statements of Utah law.

At trial, Cyprus objected that instruction 41 "misstates the law, the law in Utah and that it does

not--well, that's the grounds for the exception." Because Cyprus's objection to instruction 41

was not adequately preserved for appeal due to the lack of specificity in its initial objection, we

need not rule on whether the instruction was correct. Under Utah law, objections must be raised

with sufficient specificity at trial for the trial judge to have a legal basis for altering or rejecting

the instruction. Utah R. Civ. P. 51. Under rule 51, "a party must state distinctly the matter to

which he objects and the grounds for objection." We have interpreted this to mean that an

objection must be sufficiently precise so as to alert the trial court to all claimed errors and to give

the judge an opportunity to make corrections to the instructions before the jury retires. See

Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 271 (Utah 1992). This specificity requirement

also serves to preserve an objection for review on appeal. Id. at 272. Because Cyprus neither

requested an alternative instruction nor asked the court to reword its instruction, we find that

Cyprus did not provide the trial court with a sufficient basis upon which to amend or correct its

instructions. Cyprus failed to preserve its objection to instruction 41 adequately.

This case is complicated by the trial court's failure to hear exceptions to the jury instructions on

the record before the jury retired for its deliberations. That "the object of the instructions is to

enlighten the jury" is obvious. Id. at 275. Thus, Utah law requires that exceptions to jury

instructions be taken before the jury retires for its deliberations to permit necessary changes and

to give the trial judge a chance to correct mistakes. In fact, rule 51 states in part that objections

to instructions are to be made "before the jury retires to consider its verdict." We take this

opportunity to reemphasize the language in Nielsen, where we concluded:

Under rule 51, trial judges are to take objections to jury instructions before the jury is dismissed

to begin deliberations. It is all too common today to have counsel recite objections to the court

reporter after the jury has retired and the judge has left the bench. This is ill-advised because it

defeats the rule's primary function.

Id. at 272.

We conclude that the trial court's procedural error was harmless because Cyprus's objection to

instruction 41 was not sufficiently specific to have allowed the judge to correct the instruction

regardless of when it was taken. Harmless errors are those that are sufficiently inconsequential

so no reasonable likelihood exists that the error affected the outcome of the proceedings. See

Harline v. Barker, 912 P.2d 433, 442 (Utah 1996). Given the inadequacy of Cyprus's objection,

the fact that the trial court heard exceptions to the instructions after the jury retired for its

deliberations does not undermine our confidence in the verdict.

EVIDENTIARY ISSUES

Cyprus contends that by excluding evidence showing that MSHA did not issue a citation in

connection with Jones's accident, the trial court committed prejudicial error. It further argues

that since Jones opened the door for this evidence during direct examination of his expert,

Cyprus should have been allowed to cross-examine Jones's expert on MSHA's failure to cite

Cyprus for Jones's accident. We disagree with both contentions. First, the hypothetical

questions Jones put to his expert did not open the door for Cyprus to explore MSHA's failure to

issue a citation to Cyprus.

The trial court granted Jones's motion in limine regarding MSHA's failure to issue a citation to

either Redpath or Cyprus in connection with Jones's injury because Cyprus did not oppose the

motion and because the parties stipulated that they would not seek to introduce direct evidence

regarding this issue. At trial, however, Cyprus sought to cross-examine Jones's expert with

regard to the nonissuance of a citation in connection with Jones's accident. Normally, this

information would be admissible under rule 705 of the Utah Rules of Evidence as the basis of an

expert's opinion. However, since the MSHA investigator who was present at the Star Point

No. 2 Mine on the day of Jones's accident could not appear at trial, the district court sustained

Jones's objection to admission of this evidence as prejudicial under rule 403 of the Utah Rules of

Evidence.

Second, in reviewing rulings on admissibility under rule 403, we will not overturn the trial

court's determination absent an abuse of discretion. See Harline, 912 P.2d at 441. However, we

need not reach the question of whether the trial court's exclusion of this evidence constituted an

abuse of discretion because Cyprus has not shown prejudicial error. Under Utah law, "'[a]n

erroneous decision to admit or exclude evidence does not constitute reversible error unless the

error is harmful.'" Jouflas v. Fox Television Stations, Inc., 927 P.2d 170, 173 (Utah 1996)

(quoting Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372, 1378 (Utah 1995)).

Harmful error occurs where "the likelihood of a different outcome in the absence of the error is

'sufficiently high so as to undermine confidence in the verdict.'" Id. at 174 (quoting State v.

Knight, 734 P.2d 913, 920 (Utah 1987)).

In the instant case, Cyprus offers the mere speculation that the jury concluded that a citation may

have been issued to Cyprus in connection with Jones's accident. Cyprus does not show any

probability that the outcome would have been different had the evidence of MSHA's failure to

cite Cyprus been admitted. Because Cyprus has not demonstrated that it was prejudiced by the

trial court's ruling to exclude this evidence, we need not consider its other contentions.

The trial court denied Cyprus's motion for a new trial. Cyprus premised that motion on the jury

instruction and evidentiary arguments discussed above. We review a denial of a motion for a

new trial under an abuse-of-discretion standard. See Goddard v. Hickman, 685 P.2d 530, 532

(Utah 1984) ("A trial court has broad latitude in granting or denying a motion for a new trial, and

will not be overturned on appeal absent a clear abuse of discretion."). Since we find no merit in

Cyprus's jury instruction and evidentiary challenges, we affirm the district court's denial of

Cyprus's motion for a new trial.

The decision of the district court is affirmed.

Chief Justice Zimmerman, Justice Howe, and Justice Russon concur in Justice Durham's

opinion.

Associate Chief Justice Stewart concurs in the result.

Opinion Endnotes:

1. The trial court's jury instruction 41, which was modeled on MUJI 25.11, states:

Another exception to the general rule that a principal is usually not liable to others for the acts or

omissions of the independent contractor, is where by Utah or Federal law, such as those just read

to you, the one who employs an independent contractor has a non-delegable duty to undertake

certain precautions and procedures for the protection of others. Here, Cyprus as the principal is

liable for the harm proximately caused to the plaintiff as a result of any failure or omission of an

independent contractor to undertake such precautions and procedures for the miners working in

its mine.