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 plaintiffs motion to set aside the verdict on the
basis of insufficient evidence to support the jurys 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 plaintiffs
claim regarding the defendants negligence, and (4) denied
the plaintiffs 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 friends 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
plaintiffs 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
defendants 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
plaintiffs 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
plaintiffs 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
defendants 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
plaintiffs 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
defendants 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 defendants vehicle; she failed to stop or
wait for the defendants 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 defendants 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 plaintiffs subsequent motion to set ...