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Wager v. Moore

Court of Appeals of Connecticut

October 22, 2019

RACHEL WAGER
v.
ALEXANDRIA MOORE ET AL.

          Argued February 5, 2019

         Procedural History

         Action to recover damages for, inter alia, the defendants' negligence, and for other relief, brought to the Superior Court in the judicial district of New London; thereafter, the plaintiff withdrew the action as to the defendant Mitchell College; subsequently, the matter was tried to the jury before Cole-Chu, J.; thereafter, the court denied the plaintiff's motion for a mistrial; verdict for the named defendant; subsequently, the court denied the plaintiff's motion to set aside the verdict and rendered judgment in accordance with the verdict, from which the plaintiff appealed to this court; thereafter, the court, Cole-Chu, J., denied the plaintiff's motion for articulation. Affirmed.

          Cynthia C. Bott, with whom, on the brief, was J. Craig Smith, for the appellant (plaintiff).

          Laura Pascale Zaino, with whom, on the brief, was Lewis S. Lerman, for the appellee (named defendant).

          Sheldon, Moll and Seeley, Js.

          OPINION

          SEELEY, J.

         The plaintiff, Rachel Wager, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Alexandria Moore[1] in an action to recover damages for injuries that she sustained when she was struck by a vehicle operated by the defendant. On appeal, the plaintiff claims that the trial court erred when it (1) denied the plaintiff's motion to set aside the verdict on the basis of insufficient evidence to support the jury's finding of contributory negligence, [2] (2) instructed the jury on contributory negligence when such a charge was not supported by the evidence, (3) failed to instruct the jury on law essential to the plaintiff's claim regarding the defendant's negligence, and (4) denied the plaintiff's motion for a mistrial and later motion to set aside the verdict, which were based on the improper introduction of hearsay evidence against her at trial. We disagree and, accordingly, affirm the judgment of the trial court.

         The jury was presented with the following evidence on which to base its verdict. At approximately 10:30 p.m. on February 4, 2011, the defendant was driving in the southbound lane on Montauk Avenue in New London, near the campus of Mitchell College, when her vehicle collided with the plaintiff, a student at the college who was crossing Montauk Avenue on foot when the collision occurred.[3] The plaintiff had started on the east side of the road and crossed the entire northbound lane before, walking westward, she entered the southbound lane and proceeded to the point where the collision occurred.

         The plaintiff was not in a designated crosswalk at the time of the collision, although there was a marked crosswalk approximately 750 feet from the point of impact. The marked crosswalk was visible from the collision site, and a person crossing Montauk Avenue where the plaintiff attempted to cross it could have been able to use that marked crosswalk by walking northward to it on the sidewalk running on the east side of Montauk Avenue. The plaintiff was aware of the marked crosswalk and previously had used it to walk across Montauk Avenue. There were no cars parked on either side of Montauk Avenue at the time of the collision, but snowbanks then lined both sides of the street. At the time of the collision, the plaintiff was wearing a black jacket, dark jeans, and gold boots. The plaintiff was unable to remember anything about the collision or the period of time immediately before it.

         The defendant testified that at the time of the collision she was driving to a friend's house located in New London. She further testified that at the time, she was not speeding and she was not distracted.[4] According to the defendant, she was paying extra attention to the roadway because she was looking for a street sign. The defendant stated that the collision occurred when the plaintiff ‘‘popped out in front of [her car].'' The defendant knew she had hit something because she heard a thump, so she stopped her vehicle. She did not realize her vehicle had hit a person until after she had exited the vehicle and looked back in the roadway. No one else witnessed the collision.

         The plaintiff's accident reconstruction expert, Kristopher Seluga, testified that Montauk Avenue was flat and straight in the area of the collision and that the line of sight in that area was over 700 feet. He further testified that a person standing where he believed the plaintiff had been at the time of the collision would have been able to see the headlights of an oncoming vehicle prior to deciding whether or not to cross the road. Seluga also testified that the plaintiff should have been able to see the headlights of the defendant's vehicle and detect its presence on the roadway before the defendant would have been able to see the plaintiff.

         As a result of the collision, the plaintiff was thrown forward and landed approximately 42 feet south of the point of impact. When the initial emergency personnel arrived at the scene, the plaintiff was unconscious. The plaintiff was transported to Lawrence & Memorial Hospital in New London. Later that evening, she was transferred to Yale New Haven Hospital via Life Star helicopter due to the severity of her injuries, which included multiple fractures, lacerations, and a traumatic brain injury.

         A blood test performed at the hospital approximately thirty minutes after the collision revealed that the plaintiff had a blood alcohol level of 170 milligrams per deciliter, or .17 percent, which is equivalent to a .15 percent whole blood alcohol content measurement. Charles McKay, a toxicologist, testified that a .15 percent whole blood alcohol content measurement from a person of the plaintiff's size would represent more than nine standard alcoholic beverages consumed in a short period of time.[5] Earlier on the night of the collision, the plaintiff had shared a bottle of rum with six to eight friends in a dormitory at Mitchell College. The plaintiff appeared inebriated by 8:30 p.m., and she had trouble walking and needed help getting across campus. Footage from a surveillance camera on campus showed the plaintiff struggling to walk and stand on her own.

         The plaintiff admitted that everything appears slower and her judgment sometimes is impaired when she is intoxicated. McKay testified that as blood alcohol concentration rises in a person, it can lead to errors in judgment and processing of thoughts, a decrease in motor skills, and an inability to pay attention to multiple stimuli. According to McKay, the plaintiff's blood alcohol concentration of .15 significantly would have impacted her cognitive functioning (i.e., her ability to perceive and respond) and her motor functioning.

         Sergeant Lawrence Keating of the New London Police Department testified that while speaking with the defendant at the scene of the collision, he smelled alcohol on her breath. The defendant informed the police that she had consumed one alcoholic drink-a martini- approximately ninety minutes earlier. The police then administered a field sobriety test, which the defendant passed. One of the defendant's coworkers, who was with her shortly before the collision, testified that when she last saw the defendant she was acting normally.

         In 2013, the plaintiff brought this action against the defendant. The operative amended complaint, which the plaintiff filed on November 13, 2015, alleged various injuries the plaintiff sustained as a result of the collision and that those injuries were caused by the negligence of the defendant in one or more of the following ways: she operated a motor vehicle while under the influence of an intoxicating liquor in violation of General Statutes § 14-227a (a); she operated a motor vehicle in a reckless manner in violation of General Statutes § 14-222; she operated a motor vehicle at an unreasonably high rate of speed in violation of General Statutes § 14-218a; she failed to keep a proper lookout; she failed to properly control her vehicle; she failed to brake; she failed to yield the right-of-way to a pedestrian already in the roadway; she failed to swerve to avoid striking the plaintiff; she operated her vehicle at an unreasonable speed under the circumstances; and she otherwise failed to drive as a reasonable and prudent driver under the same or similar circumstances.

         On March 3, 2016, the defendant filed an answer to the plaintiff's operative complaint. The defendant also asserted, by way of special defense, that any injuries alleged by the plaintiff were proximately caused by her own negligence. Specifically, the defendant alleged that the plaintiff was negligent in one or more of the following ways: she failed to utilize the crosswalk in violation of General Statutes § 14-300b (a); she failed to yield the right-of-way to the defendant in violation of General Statutes § 14-300b (a); she left a place of safety and walked or ran into the path of the defendant's vehicle, causing an immediate hazard to herself, in violation of General Statutes § 14-300c (b); she ‘‘walked upon the roadway while under the influence of alcohol or drugs, rendering herself a hazard in violation of General Statutes [§ 14-300c (b)]''; she was inebriated, intoxicated, or impaired by the consumption of alcohol, and, as a result, walked or ran into the path of the defendant's vehicle; she failed to stop or wait for the defendant's vehicle to pass before entering the roadway, although by a reasonable and proper exercise of her faculties, she could and should have done so; she chose to cross the street while her ability to do so was impaired by the consumption of alcohol; she failed to keep a reasonable and proper lookout for vehicles on the roadway; and she failed to be attentive to her surroundings, including vehicles on the roadway. The plaintiff filed a reply generally denying the allegations in the special defense.

         Following a six day trial, the jury returned a verdict for the defendant and found the issues in the defendant's special defense in favor of the defendant. The jury found that the plaintiff ‘‘was more than 50 [percent]- specifically 90 [percent]-contributorily negligent in causing the subject accident on February 4, 2011, and her resulting injuries and damages, compared to the 10 [percent] total negligence of the defendant.''[6] The trial court denied the plaintiff's subsequent motion to set aside the verdict and for a new trial. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The plaintiff first claims that the trial court erred in denying her motion to set aside the verdict and for a new trial because the evidence was insufficient to support the jury's finding of contributory negligence. Specifically, the plaintiff argues that there was not sufficient evidence to remove the jury's finding that she was more than 50 percent negligent from the realm of speculation. The plaintiff argues that there was insufficient evidence from which the jury reasonably could have found that the plaintiff's alleged negligence was ‘‘causally connected to the collision.'' The plaintiff also contends that the defendant failed to present sufficient evidence from which the jury reasonably could have found that the plaintiff breached a duty of care as specified in the defendant's special defense. We disagree with the plaintiff and conclude that insofar as the jury's verdict was based on its finding of contributory negligence, the verdict was supported by sufficient evidence.

         ‘‘A party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a jury's verdict, we construe the evidence in the light most favorable to sustaining the verdict. . . . We do not ask whether we would have reached the same result. [R]ather, we must determine . . . whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . . If the jury could reasonably have reached its conclusion, the verdict must stand.'' (Internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 754-55, 189 A.3d 587 (2018).

         ‘‘The . . . judgment [will be reversed] only if we find that the [fact finder] could not reasonably and legally have reached [its] conclusion. . . . We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the [defendant] must produce sufficient evidence to remove the [fact finder's] function of examining inferences and finding facts from the realm of speculation.'' (Internal quotation marks omitted.) Reyes v. Chetta, 143 Conn.App. 758, 765, 71 A.3d 1255 (2013). ‘‘Moreover, with respect to the trial court's refusal to set aside the verdict, we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses. . . . The concurrence of the judgments of the [trial] judge and the jury . . . is a powerful argument for upholding the verdict.'' (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 371, 119 A.3d 462 (2015).

         ‘‘[I]t is [the] function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment. . . .

         ‘‘[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. . . . Finally, it is well established that a [defendant] has the same right to submit a weak [special defense] as he has to submit a strong one.'' (Emphasis in original; internal quotation marks omitted.) Procaccini v. Lawrence & Memorial Hospital, Inc., 175 Conn.App. 692, 716-17, 168 A.3d 538, cert. denied, 327 Conn. 960, 172 A.3d 801 (2017).

         To prove contributory negligence, the defendant must prove that the plaintiff's negligence was a proximate cause of or a substantial factor in the resulting harm. See Opotzner v. Bass, 63 Conn.App. 555, 566, 777 A.2d 718 (court properly instructed jury that it must determine whether plaintiff's negligence was substantial factor in bringing about collision), cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), and cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002). Put another way, ‘‘the defendant must . . . prove by a fair preponderance of the evidence that the plaintiff was in fact negligent.'' Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 294 n.4, 786 A.2d 1214 (2001).

         In the present case, when the court instructed the jury, it stated in relevant part: ‘‘The defendant's special defense is that, if the plaintiff sustained any injuries or damages as alleged in her complaint, then said injuries or damages were proximately caused by her own carelessness and negligence at said time and place, in one or more of the following ways: One, she crossed the street at a place other than the available crosswalk and failed to yield the right-of-way to the defendant; two, she left a place of safety and walked or ran into the path of the defendant's vehicle, causing a hazard; three, she walked upon the roadway while under the influence of alcohol, rendering herself a hazard; four, she was inebriated, intoxicated, or impaired by the consumption of alcohol and, as a result, walked or ran into the path of the defendant's vehicle; five, she failed to keep a reasonable and proper lookout for vehicles on the roadway; six, she failed to be attentive to her surroundings, including vehicles in the roadway.''

         First, we address the plaintiff's assertion that there was insufficient evidence from which the jury reasonably could have found that her alleged negligence was ‘‘causally connected to the collision.'' Contrary to the plaintiff's contention, [7] we conclude that the record contains ample evidence that the plaintiff was negligent as alleged in each of the six specifications pleaded in the special defense, on which the trial court charged the jury, and that such negligence was a substantial factor in causing her injuries. Specifically, there was evidence that the plaintiff was not in a designated crosswalk at the time of the collision, although such a crosswalk was located ...


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