“the trial court correctly instructed the jury that the duty to maintain the reasonably safe condition of town sidewalks lies solely with Highland and that the homeowners abutting the sidewalk have no duty to repair the sidewalks”
How later courts described this case
- “the trial court correctly instructed the jury that the duty to maintain the reasonably safe condition of town sidewalks lies solely with Highland and that the homeowners abutting the sidewalk have no duty to repair the sidewalks”
Written by the judges who cited it.
The opinion
KIRSCH, Judge,
concurring in result opinion.
I respectfully disagree with the holding of the majority in regard to the trial court's exclusion of evidence of collateral source payments. Because the defendant presented "no evidence of the particulars of her coverage" other than" the unsupported assertion that Zerkel's benefits were fringe benefits of her employment," the majority concludes that the trial court did not err in excluding evidence of collateral source payments because there was no showing that the plaintiff or her husband paid for such benefits directly.
Prior to trial, the plaintiff filed a motion in limine requesting, inter alia, that the trial court bar any mention of collateral source payments. The plaintiff's contention in her motion was that plaintiff had paid for such benefits by reason of her labor, and that "[playment in kind, such as supplying one's labor, is no less payment than payment in money." Record at 286. On this basis, the trial court sustained the motion.
At trial, the defendant followed the proper procedure in requesting that the jury be exeused so that defendant could make an offer to prove. Defense counsel asked leave to question the plaintiff regarding the collateral source payments. The trial court instructed counsel "to tell the court reporter the questions you want to ask and the answers you expect." Record at 527-28. In response, defense counsel stated that he would ask, "One, were the medical bills paid by Inland Steel. And I believe under the *1123 collateral source rule there is no indication that she paid any extra for this benefit and I think that's admissible, therefore, under the statute." Record at 528.
The method for making the offer to prove was determined by the trial court. It may amount to no more than an unsupported assertion, but that is because the trial court prevented counsel from directly questioning the witness. Moreover, neither before the trial court, nor on appeal, does plaintiff contend that the collateral source benefits were anything other than fringe benefits of employment for which she paid by reason of her labor. Because I believe that such payment does not constitute direct payment as set forth in the statute, I believe the trial court erred in denying the collateral source evidence. Because the plaintiff would have been entitled to introduce evidence of her obligation to repay such sums, however, I believe there was no prejudice to the defendant from the exclusion and, accordingly, the error was harmless. For such reason, I concur in the result reached by the majority regarding the collateral source payments. I fully concur in regard to all other issues.