Berchtold v. Maggi

Decision Date30 August 1983
Citation191 Conn. 266,464 A.2d 1
CourtConnecticut Supreme Court
PartiesLisa BERCHTOLD, PPA et al. v. Frank MAGGI III et al.

Harold A. Baran, Middletown, with whom, on brief, was Gary S. Genovese, Middletown, for appellants (plaintiff and third party plaintiff).

Elizabeth A. Dorsey, New Haven, with whom, on brief, were William F. Gallagher, L. Clayton Gery and Roger B. Calistro, New Haven, for appellees (defendants and third party defendants).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

ARTHUR H. HEALEY, Associate Justice.

The plaintiff, Lisa Berchtold, brought this action to recover damages for personal injuries resulting from a motor vehicle accident. After a trial to the court, Morelli, J., judgment was rendered for the defendant, and the plaintiff appealed. Our disposition of this appeal requires that we address two claimed errors of law: (1) whether the trial court erred in holding that the plaintiff had failed to sustain her burden of proof that her injuries were proximately caused by the defendant's negligence after it had denied a motion to dismiss made by the defendant after the plaintiff had rested her case; and (2) whether the trial court erred in applying case law that was allegedly inapplicable to the facts of the present case. We find no error.

The trial court could have reasonably found the following facts based upon the evidence presented by the plaintiff (the defendant did not put on any evidence): On July 18, 1976, at approximately 7:45 p.m., the plaintiff was a passenger in a Chevrolet pickup truck driven by the defendant, Frank Maggi III. It was a dry, clear and warm day. The plaintiff was almost sixteen years old at that time, while the defendant was a year or two older. The plaintiff's younger sister, Barbara Berchtold, and the defendant's younger brother, Joseph Maggi, were sitting in the open rear bed of the truck. The defendant was driving the pickup truck in a westerly direction on Route 148 in the town of Killingworth. Route 148 is a winding two lane blacktop road and, at a point just prior to the accident scene, it has a downgrade after which there is a curve. As the truck was going down the hill, Lisa Berchtold told the defendant to slow down two times. The defendant did not respond; he just gave her "a funny, crazy kind of smirk, and then he continued driving, and we were still going faster all the time." Barbara Berchtold testified that Joseph Maggi also told the defendant to slow down. After negotiating the curve, the truck struck the shoulder on the north side of Route 148. It then skidded across Route 148 where it left the road. It then struck and went over a stone wall, and finally came to rest after striking a tree. The police officer who investigated the accident testified that the truck left seventy-five feet of double skid marks.

At the close of the plaintiff's case, the defendant moved to dismiss the action for failure to make out a prima facie case under Practice Book § 302. 1 In an oral decision from the bench, the court denied the motion, stating, inter alia, that there was sufficient evidence to make out a prima facie case. It then stated: "This is not to say that at this point, that it is necessary for the Court to conclude that the Plaintiff has sustained his [sic] burden of proof by a fair preponderance of the evidence, and therefore, the Court will deny the motions [to] dismiss." Thereafter, the defendant rested his case without putting on any evidence.

On April 17, 1980, the trial court filed a memorandum of decision in which it set forth its reasoning in holding for the defendant. After reciting the relevant facts, it stated that the "only evidence which nears one of the allegations of negligence is the question of speed...." The plaintiff's complaint had alleged that the defendant was negligent in one of six ways. These included operating the truck at an unreasonable rate of speed, being inattentive, failing to keep the truck under reasonable control, operating the truck when it had unsafe tires and brakes, failing to drive in the proper lane and failing to turn or stop the truck in time to avoid the accident. In regard to the issue of speed the court found that there was "no creditable evidence of what rate of speed was travelled by the operator and that it was unreasonable, improper, or excessive, having regard to the width, traffic, and use of said highway, weather conditions, and other conditions prevailing at said time and place.... The only evidence which the court was able to consider was that of Lisa [Berchtold] who told the defendant operator to slow down and received a 'smirk.' This is hardly evidence of unreasonable speed." The court went on to state that any conclusion regarding the defendant's negligence would have been drawn "from a field of conjecture, surmise or guess." It then cited four cases for the proposition that a determination of negligence "cannot be predicated on conjecture and surmise." These four cases were O'Brien v. Cordova, 171 Conn. 303, 305, 370 A.2d 933 (1976); Badela v. Karpowich, 152 Conn. 360, 362, 206 A.2d 838 (1965); Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960); and Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959).

We now turn to the first claim of error raised by the plaintiff. She frames the issue essentially as follows: Once the trial court determined that there was sufficient evidence to establish a prima facie case of negligence, it was error not to render judgment in her favor because the defendant did not put on any evidence to rebut her prima facie case.

Professor Wigmore has stated that "[t]he term 'prima facie evidence' or 'prima facie case' is used in two senses." 9 Wigmore, Evidence (3d Ed.) § 2494. On the one hand, it identifies the situation "where the proponent, having the first duty of producing some evidence in order to [have his case submitted to the factfinder], has fulfilled that duty ... and may properly claim that the [factfinder] be allowed to consider his case." Id., § 2494(2). This court has stated this general proposition in the following fashion: "The phrase 'prima facie evidence' means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Emphasis added.) Mott's Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 489, 172 A.2d 381 (1961); see also State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973); Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956).

The second sense in which the term "prima facie case" has been utilized according to Wigmore is in those situations "where the proponent, having the burden of proving the issue ... has not only removed by sufficient evidence the duty of producing evidence to get past the judge to the jury, but has gone further, and, either by means of a presumption or by a general mass of strong evidence, has entitled himself to a ruling that the opponent should fail if he does nothing more in the way of producing evidence." (Emphasis added.) 9 Wigmore, Evidence (3d Ed.) § 2494(1); see also Husbands v. Pennsylvania, 395 F.Supp. 1107, 1139 (E.D.Pa.1975). It is this second use of the term "prima facie case" that the plaintiff seeks to impose in this case. She argues, in effect, that she is "entitled" to a judgment in her favor because the defendant rested and did not put on any evidence after the trial court had denied his motion to dismiss.

The fallacy in this argument is that it misconstrues the ramifications of a determination that a prima facie case has been established in denying a motion to dismiss pursuant to Practice Book § 302. We have recently restated that a motion for a judgment of dismissal has replaced the former nonsuit for failure to make out a prima facie case. Falker v. Samperi, 190 Conn. 412, 418, 461 A.2d 681 (1983). Under either motion it was, and is, the duty of the trial court to take as true the evidence offered by the plaintiff and interpret it in the light most favorable to him, with every reasonable inference being drawn in his favor. Id., 419, 461 A.2d 681; see also Hinchliffe v. American Motors Corporation, 184 Conn. (43 CLJ 3, pp. 14, 15), ---, ---, ---, 440 A.2d 810 (1981); Minicozzi v. Atlantic Refining Co., supra; Ace-High Dresses, Inc. v. J.C. Trucking Co., 122 Conn. 578, 579, 191 A. 536 (1937). Clearly, therefore, the fact that a trial court denies a motion to dismiss does not mean that the plaintiff is "entitled" to a judgment in its favor if the defendant does not put on any evidence. Rather, the determination that a plaintiff has established a prima facie case in this instance is comparable to the first definition cited from Wigmore, i.e., the effect of denying a motion to dismiss is to give the plaintiff the opportunity to have the factfinder pass upon the merits of the case.

Once a case is ultimately presented to the factfinder for final decision, an entirely different analysis is applied. Rather than being required to take as true the evidence offered by the plaintiff, the trier of fact can disbelieve any evidence, even if uncontradicted. Anderson v. Anderson, 191 Conn. 46, 463 A.2d 578 (1983); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 319, 321 A.2d 456 (1973). In addition, the trier of fact is no longer bound to interpret the evidence in the light most favorable to the plaintiff, or to draw every reasonable inference therefrom, for it is axiomatic that it is within the province of the trier of facts to assess the credibility of witnesses. Griffin v. Nationwide Moving & Storage Co., supra; Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 151, 429 A.2d 827 (1980).

In view of the foregoing principles, it was legally consistent for the trial court to determine that the plaintiff had established a prima facie case justifying a...

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