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Wager v. Moore

Appellate Court of Connecticut

October 22, 2019

Rachel WAGER
v.
Alexandria MOORE et al.

         Argued February 5, 2019

         Appeal from Superior Court, Judicial District of New London, Cole-Chu, J.

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

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

         Sheldon, Moll and Seeley, Js.

          OPINION

         SEELEY, J.

         [193 Conn.App. 610] 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

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the jury on contributory negligence when such a charge was not supported by the evidence, (3) failed to instruct the jury on law essential [193 Conn.App. 611] 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.

         [193 Conn.App. 612] 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

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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.

         [193 Conn.App. 613] 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 [193 Conn.App. 614] 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

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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, [193 Conn.App. 615] 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 ...


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