Argued Oct. 10, 1989.
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Richard A. Bieder, with whom, on the brief, was Joan C. Harrington, Bridgeport, for appellant (plaintiff).
Arnold J. Bai, with whom were Lawrence Russ, Asst. Atty. Gen., and, on the brief, James E. Coyne, Garie J. Mulcahey, Bridgeport, and H. Owen Chase, for appellee (defendant).
Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, COVELLO and HULL, JJ.
[213 Conn. 447] ARTHUR H. HEALEY, Associate Justice.
This appeal concerns an action brought under General Statutes § 13a-144  by [213 Conn. 448] the plaintiff Lawrence Hall, as guardian of the estate of Jessica Hall, his granddaughter, against the defendant commissioner of transportation, J. William Burns, for injuries sustained in a motor vehicle accident allegedly caused by the defendant's neglect and default in maintaining routes 6 and 25 in Newtown. The case was heard Before a jury and was bifurcated on the [213 Conn. 449] issues of liability and damages. On October 28, 1988, the jury returned a verdict in favor of the defendant. The plaintiff subsequently filed a motion to set aside the verdict that was denied on March 3, 1989, and the court, Stodolink, J., rendered judgment for the defendant. From that judgment the plaintiff appeals. Pursuant to Practice Book § 4023, we transferred the case to ourselves. We find no error.
The jury could reasonably have found the following facts, which will be supplemented as the issues require. On August 4, 1983, Jessica Hall was involved in a motor vehicle accident at the intersection of routes 6 and 25 and the spur from exit 9 of I-84 in Newtown. Jessica was a passenger in a 1983 model pickup truck driven by her mother, Wendy Hall. Wendy Hall left exit 9 of I-84 and proceeded eastbound on the spur to routes 6 and 25. At this point, routes 6 and 25 overlap into one road. When she approached the intersection of the spur and routes 6 and 25, she attempted to take a left turn to go north on routes 6 and 25. She testified that because her vision was obstructed by brush she could not see traffic traveling south on routes 6 and 25 so she inched her way onto the highway to obtain a view. At that point, a tractor trailer truck driven by Charles Zekelsky was driving southbound on routes 6 and 25. Wendy Hall did not see the tractor trailer until it was suddenly upon her vehicle. Zekelsky attempted to avoid a collision by braking and swerving to the left but was unable to do so and struck Wendy Hall's truck, severely injuring Jessica Hall.
The plaintiff brought an action against the defendant in two counts based on General Statutes § 13a-144. The first count alleged that the defendant's neglect and default in maintaining routes 6 and 25 was the cause of Jessica Hall's injuries. The second count alleged, in the alternative, that the defendant's neglect and default in maintaining routes 6 and 25 was the sole proximate [213 Conn. 450] cause of Jessica Hall's injuries. Specifically, the complaint alleged that the highway was in a defective and hazardous condition in that trees or brush, upon or near the traveled portion of said highway, were overgrown "or misplaced," thereby obstructing the view of drivers approaching the intersection. In addition to alleging the improper placement of a stop sign on this spur, the complaint went on to allege that the defendant failed to provide adequate warning devices to alert drivers traveling on routes 6 and 25 of the approaching intersection. On April 15, 1987, the defendant moved to strike the first count of the plaintiff's complaint for failure to plead that the defendant was "the sole proximate cause" of Jessica Hall's injuries. On July 20, 1987, the trial court, Sullivan, J., granted the defendant's motion to strike count one of the complaint.
The case proceeded to trial on the issue of liability and the jury returned a general verdict in favor of the defendant. The trial court denied the plaintiff's motion to set aside the verdict and the plaintiff appeals.
The plaintiff claims that the trial court committed a number of errors in its evidentiary rulings and instructions to the jury. Specifically, the plaintiff claims that the trial court erred in its evidentiary rulings concerning the: (1) exclusion of evidence of a prior accident; (2) exclusion of photographs of subsequent remedial measures; (3) exclusion of a photograph which "significantly" affected an eyewitness's credibility; and (4) permission given to defense counsel to comment on the lack of prior problems at this intersection during closing argument. In addition, the plaintiff claims that the trial court made the following errors in its instructions to the jury: (1) charging the jury that it may draw an adverse inference from the plaintiff's failure to call a witness; (2) charging the jury that it could consider the defendant's workload; (3) failing to charge [213 Conn. 451] on the defendant's subduty to investigate; (4) failing to charge on the defendant's duty to close the highway; and (5) charging the jury that the defendant's neglect and default must be the sole proximate cause of the plaintiff's injuries.
First, the plaintiff contends that the trial court erred in excluding evidence of a prior accident that occurred at the same intersection of routes 6 and 25 and the spur from exit 9 of I-84. The prior accident, the plaintiff asserts, was substantially similar to the present accident and should have been admitted to prove the existence of a defect. The defendant, on the other hand, claims that the trial court properly rejected the evidence because there was insufficient
proof of similarities. Specifically, the defendant maintains that there was no claim that the prior accident in any way resulted from a sight line obstruction caused by brush or vegetation as in the present case. Moreover, the defendant asserts that the testimony offered regarding the specifics of the prior accident was based on hearsay from the police officer who conducted the investigation of the prior accident. We find no error on this ruling.
It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983). Evidence of other similar accidents is admissible "to prove the existence of a particular physical condition, situation, or defect." C. McCormick, Evidence [213 Conn. 452] (3d Ed.) § 200; Zheutlin v. Sperry & Hutchinson Co., 149 Conn. 364, 179 A.2d 829 (1962); Facey v. Merkle, 146 Conn. 129, 136, 148 A.2d 261 (1959); Wilkins v. G. Fox & Co., Inc., 125 Conn. 738, 7 A.2d 434 (1939). A party attempting to offer evidence of prior accidents or "evidence of the experience of others" has the burden of proving "that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. Wray v. Fairfield Amusement Co., 126 Conn. 221, 226, 10 A.2d 600 ; Wilkins v. G. Fox & Co., Inc., [supra, 125 Conn. at 739, 7 A.2d 434]; Shuchat v. Stratford, 125 Conn. 566, 571, 7 A.2d 387 ...." Zheutlin v. Sperry & Hutchinson Co., supra, 149 Conn. at 366-67, 179 A.2d 829. "We cannot ignore completely that when a claim is made for the showing of prior accidents, an element of a trial on collateral issues, sometimes termed a trial within a trial, is introduced with a real possibility of undue delay." Kelsay v. Consolidated Rail Corporation, 749 F.2d 437, 443 (7th Cir.1984). Moreover, "[e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of 'substantial similarity of conditions' between the immediate and the prior happenings." Marois v. Paper Converting Machine Co., 539 A.2d 621, 625 (Me.1988). "The question whether the essential preliminaries have been established is for the court, and the court's decision will not be disturbed unless there is clear and manifest error." Zheutlin v. Sperry & Hutchinson Co., supra, 149 Conn. at 367, 179 A.2d 829.
In an offer of proof, the plaintiff attempted to prove the similarity of the accidents through the testimony of Officer Michael Kehoe, who had investigated the prior accident. Kehoe testified that the prior accident occurred on the night of July 30, 1983, at approximately 9:45 p.m. Androcovich, while driving eastbound on the spur of exit 9 of I-84, attempted to take a left turn on [213 Conn. 453] routes 6 and 25 when he was struck by a car traveling southbound on routes 6 and 25. Kehoe testified that the road conditions at the time of the accident were clear and dry. Further, he testified that he issued a citation to Androcovich, the driver traveling eastbound on the spur attempting to take a left turn, for failure to yield a right-of-way after a stop. Significantly, on cross-examination, the officer testified that neither operator of the vehicles claimed that any brush or vegetation or sight line interference was a contributing factor to the accident.
In Facey v. Merkle, supra, this court stated that "in laying the foundation that the material conditions were substantially identical, two aspects are involved. One is that the [place] itself must have been substantially in the same condition. The other is that the use made of it must have been substantially identical in all material respects with the use which was actually involved in the case and was reasonably to be anticipated." Id., 146 Conn. at 136, 148 A.2d 261. The defendant does not contend that the intersection was not in "substantially" the same condition on the night of the prior accident but rather that the prior accident was not "substantially similar" to
the present accident because the plaintiff failed to establish that both accidents resulted from or even involved the same cause, i.e., the brush condition. Therefore, whether the Androcovich accident in this case is substantially similar involves the second aspect enunciated in Facey that "the use made of it must have been substantially identical in all material respects." Id.
In Facey, the plaintiff, as administrator of the decedent's estate, brought suit against the defendants, owners of a rest home, for damages as a result of a defective stairway that caused the death of the decedent. Id., at 131, 148 A.2d 261. In the defendant's case-in-chief, the defendant attempted to put into evidence, through the testimony of a witness, that others had used the same stairway [213 Conn. 454] on prior occasions without incident. Id., at 135-36, 148 A.2d 261. The court excluded the evidence because the defendant failed to show "that the use on the part of the [other individuals who used the stairway] was ... substantially identical with the reasonably anticipated use of this decedent." Id., at 136, 148 A.2d 261. The court held that there was no evidence that the prior individuals shared the same general physical condition as that of the decedent so as to make their use substantially identical. The defendant in Facey failed to prove that the contributing cause to the present accident, the physical condition of the decedent, was a factor in the prior use so as to make the prior use substantially similar.
Similarly, in the present case the plaintiff failed to prove that the alleged cause of the present accident, overgrown brush, was the same "cause" of the prior accident. In fact, Kehoe testified that he issued a citation to Androcovich for failure to yield a right-of-way after a stop at that very intersection, thus implying that the driver's own negligence was a contributing factor. Moreover, the fact that there was no evidence during the plaintiff's offer of proof that Androcovich had ever filed a claim or a lawsuit against the defendant further suggests that the driver's own negligence had caused the accident. See Kelsay v. Consolidated Rail Corporation, supra.
If the court had allowed the evidence of the prior accident, the jury might have inferred from such evidence alone that the defect in the highway existed and was the cause of the latter accident without those issues ever having been proved. Id. The term "substantially" in this context is relative in its significance and it is a term that must be evaluated according to the facts of a particular case in determining whether the trial court's exercise of discretion was "clear and manifest error." See Zheutlin v. Sperry & Hutchinson Co., supra. Although this court has never decided that, in order [213 Conn. 455] to be admissible, there must be evidence that the prior accident resulted from the same cause as the present accident, we note that other jurisdictions have required the offering party to prove the same cause in such cases. Gardner v. Southern Railway Systems, 675 F.2d 949 (7th Cir.1982) (per curiam); Ashby Division of Consolidated Aluminum Corporation v. Dobkin, 458 So.2d 335, 337 (Fla.App.1984); I.B.L. Corporation v. Florida Power & Light Co., 400 So.2d 1288, 1288-89 (Fla.App.1981) (must show similarity of conditions, causes and circumstances); Rucker v. Norfolk & Western Railway Co., 64 Ill.App.3d 770, 785, 21 Ill.Dec. 388, 381 N.E.2d 715 (1978), rev'd on other grounds, 77 Ill.2d 434, 33 Ill.Dec. 145, 396 N.E.2d 534 (1979) (generally, the rule in relation to the competing evidence of prior similar occurrences is that the evidence must tend to show a common cause); Freed v. Simon, 370 Mich. 473, 475, 122 N.W.2d 813 (1963) (evidence of prior accidents at the same place arising from the same cause is admissible); Schultz v. Webster Groves Presbyterian Church, 726 S.W.2d 491, 495 (Mo.App.1987) ("evidence of other 'accidents' of like character caused by the same condition and occurring under substantially the same conditions is admissible"); Cameron v. Small, 182 S.W.2d 565, 570 (Mo.1944) (must prove slipping of others occurred under same conditions, at the same place, and from the same cause as the slipping of the plaintiff).
As mentioned earlier, it is within the trial court's sound discretion to admit evidence
of prior accidents. Sound discretion, by definition, means a discretion " 'that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law.... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter....' " State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985). Given the circumstances of this case, especially the gravamen of the [213 Conn. 456] claimed overgrown brush condition, we cannot say that it was "clear and manifest error" to have excluded the prior accident evidence. 
The second evidentiary claim of error is that the trial court erred in excluding photographs that depicted the intersection after the defendant had cut back the brush from the sight line. The plaintiff contends that the policy prohibiting evidence of remedial measures is not applicable to a cause of action based on § 13a-144 and therefore the photographs are admissible to establish the existence of a defect. The plaintiff bases his argument on our holding in Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 143, 491 A.2d 389 (1985), where we stated that the policy prohibiting evidence of postaccident remedial measures is inapplicable in strict products liability cases. In the alternative, the plaintiff argues that even if the general rule excluding such evidence is applicable, the photographs should nonetheless be admitted on the issue of causation as an exception to the general rule. The defendant, on the other hand, contends that the general rule is applicable and Sanderson v. Steve Snyder Enterprises, Inc., supra, is inapposite. We find no error in this ruling.
The general rule is that evidence of subsequent repair is not admissible on the issue of negligence. Sanderson v. Steve Snyder Enterprises, Inc., supra; Rokus v. Bridgeport, 191 Conn. 62, 463 A.2d 252 (1983); Blanchard v. Bridgeport, 190 Conn. 798, 463 A.2d 553 (1983); C. McCormick, Evidence (3d Ed.1984) § 275; 2 J. Wigmore, Evidence (Chadbourn Rev.1979) § 283; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 11.5.4(a); see also Fed.R.Evid. 407 ("evidence [213 Conn. 457] of the subsequent [repair] is not admissible to prove negligence or culpable conduct"). We have said that "[i]t has long been the settled rule in this State that evidence of subsequent repairs is inadmissible to prove negligence or an admission of negligence at the time of the accident." Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936); see Rokus v. Bridgeport, supra, 191 Conn. at 65, 463 A.2d 252. This court, however, has admitted evidence of subsequent remedial measures if offered for other purposes such as: (1) to establish the defendant's control of the premises where a defect was located; Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Torre v. DeRenzo, 143 Conn. 302, 307, 122 A.2d 25 (1956); Shegda v. Hartford-Connecticut Trust Co., 131 Conn. 186, 188, 38 A.2d 668 (1944); (2) to show feasibility of repair in product liability cases; Sanderson v. Steve Snyder Enterprises, Inc., supra; and (3) to show the general area or scene of the injury. Rokus v. Bridgeport, supra; Blanchard v. Bridgeport, supra.
The rule of exclusion is "based on narrow public policy grounds, not on an evidentiary infirmity." Rokus v. Bridgeport, supra, 191 Conn. at 67 n. 1, 463 A.2d 252. In Rokus v. Bridgeport, supra, this court stated that the exclusion of subsequent remedial measures based on public policy grounds "presupposes that to admit evidence of subsequent repairs to an identified hazardous condition as proof of negligence penalizes the defendant for taking remedial measures. This discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger. This policy fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of ...