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 ...