March 6, 2017
from Superior Court, judicial district of Hartford, Peck, J.
Kathleen F. Adams, with whom, on the brief, was Peter J.
Ponziani, for the appellants (defendant in each cases).
C. Sterling, with whom was Emily B. Rock, for the appellee
(plaintiff in both cases).
DiPentima, C. J., and Mullins and Norcott, Js.
these consolidated actions, the defendants, Ashley
Bartholomew and her employer, Eastern Connecticut Health
Network, Inc., appeal from the judgments of the trial court,
rendered in favor of the plaintiff in both actions, Herbert
Shook, following a jury trial. On appeal, the defendants
claim that the court improperly (1) refused to instruct the
jury on apportionment of liability on the basis of
comparative negligence despite the submission of a request to
charge on that doctrine, (2) permitted the plaintiff to
introduce evidence regarding his driving history, and (3)
denied their motion to set aside the verdict. We affirm the
judgments of the trial court.
jury reasonably could have found the following facts on the
basis of the evidence presented. On November 21, 2012, at
approximately 4:45 p.m., the plaintiff exited off of
Interstate 84 in Manchester. It was the day before
Thanksgiving and traffic was heavy. He stopped at the red
light on the exit ramp in preparation to take a left turn
onto Deming Street. The intersection is a busy four-way
intersection, essentially in the shape of a cross or a plus
sign, with many lanes. Some of the lanes of the intersection
are for left turns, some for right turns and some for
vehicles traveling straight through the intersection. There
are traffic signals in the center of the intersection. The
plaintiff's vehicle, which had exited Interstate 84, was
facing north toward Avery Street; running east to west at the
intersection is Deming Street. When the left arrow for the
plaintiff's lane turned green, the plaintiff proceeded
slowly into the intersection, intending to turn left (west)
onto Deming Street. Bartholomew, who was traveling east on
Deming Street in her Toyota Camry, hit the plaintiff's
vehicle directly on the driver's side door. Although
Bartholomew applied her breaks prior to impact, the plaintiff
still sustained serious life-threatening injuries. Several
witnesses saw the accident and gave statements to the police
and/or provided testimony to the jury. The statements and
testimony of those witnesses, varied greatly. Some of the
witnesses stated that Bartholomew ran through a red light,
and that the plaintiff had a green light. Other witnesses
stated that the plaintiff ran through a red light, and that
Bartholomew had a green light.
plaintiff filed a complaint sounding in negligence against
Bartholomew, and, in a separate action, he filed a complaint
alleging vicarious liability against Eastern Connecticut
Health Network, Inc., as the accident occurred during the
course of Bartholomew's employment. The defendants each
filed answers and the special defense of comparative
negligence. In their special defenses, the defendants alleged
that the plaintiff had been negligent in several different
ways, including, that he entered the intersection while his
light was red, that he failed to observe that east and west
traffic on Deming Street was crossing in front of him and
that it was not safe to enter the intersection, and that he
failed to maintain a reasonable lookout for other vehicles.
The plaintiff denied the special defenses.
separate cases that the plaintiff had filed, one against each
defendant, later were consolidated for trial, and counsel
agreed that the pleadings and the record in one case applied
equally to the other case and vice versa. The matter then was
tried to a jury over the course of several days.
November 23, 2015, the defendants submitted a request to
charge that included various proposed instructions on
comparative negligence. During the on-the-record charging
conference, the plaintiff's attorney argued that there
was no evidence to support a charge on comparative negligence
on the plaintiff's part. He contended that the evidence
demonstrated either that the plaintiff had a red light and
ran through it, or that Bartholomew had a red light and ran
through it, and that this was the manner in which the case
response, the defendants' attorney argued:
‘‘It's the defendants' position that the
evidence does support the issuance of the charge. The jury
could find comparative negligence here, even if it found one
operator or the other ran the red light, specifically if they
found [Bartholomew] went through the red light . . . . [T]he
jury could still find-whether it's a probability or not,
we don't know, but it's possible they could still
find- that, due to the configuration of this intersection,
the sightlines available, the opportunity to perceive and
react, [that] nonetheless, there is some comparative fault to
be apportioned here, even if they found that one operator or
the other, in fact, committed negligence per se in running
the red light. So it's the defendants' position that
the evidence in the case does support the issuance of the
charge on comparative negligence.''
court responded that it recognized that there was a special
defense alleging comparative negligence and that the
defendants had requested a comparative negligence
instruction, but that it did not ‘‘remember any
evidence at all concerning any of the sightlines.''
The court stated that it thought a comparative negligence
instruction, wherein the jury could apportion some liability
to the plaintiff, might confuse the jury because the case was
tried as one in which the only issue was ‘‘who
ran the red light.'' Additionally, the court stated
that it had not ‘‘heard anything from counsel,
very frankly, either in chambers or in court, that would
persuade [it] otherwise . . . .'' After some
unrelated discussion, the defendants' counsel stated that
he was taking an exception to the court's ruling on the
comparative negligence instruction.
the court instructed the jury, the defendants' counsel
again noted his exception. The jury returned a
plaintiff's verdict, and the defendants filed a motion to
set aside the verdict, which the court denied. On February
23, 2016, the ...