Bovat v. Waterbury

Decision Date20 November 2001
Docket Number(SC 16482)
Citation783 A.2d 1001,258 Conn. 574
CourtConnecticut Supreme Court

Borden, Norcott, Katz, Palmer and Zarella, JS. Charles E. Oman III, with whom, on the brief, was Bethany K. Karas, for the appellant (named defendant).

Robert S. Kolesnik, with whom, on the brief, was Maureen E. Norris, for the appellee (plaintiff).



The named defendant, the city of Waterbury (defendant), appeals1 from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Patrick Bovat, in his action to recover damages for personal injuries he sustained in an automobile accident that resulted from the defendant's breach of its duties under the municipal defective highway statute, General Statutes § 13a-149.2 On appeal, the defendant claims that the trial court improperly denied both its motion to set aside the verdict and its motion for remittitur. The defendant's motion to set aside the verdict had been predicated on the following claimed improprieties: (1) the jury's responses to written interrogatories finding liability, based on both design defect and defect in repair or maintenance, demonstrated a misapprehension of applicable legal principles; (2) the plaintiff failed to produce evidence that the defects were present from the time the road was built; (3) no reasonable jury could have found that the defendant had been the sole proximate cause of the plaintiff's injuries; (4) the jury was instructed on principles of causation that were applicable to a claim of ordinary negligence; and (5) the trial court precluded the defendant from introducing evidence of a settlement between the plaintiff and the operator of the vehicle in which the plaintiff was riding to contradict the plaintiffs denial that he had made a previous claim against the operator. With respect to the motion for remittitur, the defendant asks this court to reconsider the rule, as articulated in Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985), applied by the trial court that barred it from automatically reducing the plaintiffs award of damages by amounts received by way of settlements from third parties. We reject the defendant's claims and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of October 4, 1993, the plaintiff, his friend Steven D. Sylvester and two others, drove from the plaintiffs house to meet friends for dinner atthe Pontelandolfo Club on Farmwood Road in Waterbury. Farmwood Road is a city highway, owned and maintained by the defendant. Sylvester drove his car, with the plaintiff seated in the front passenger's seat and the other two individuals seated in the rear. It was dusk as the car approached Farmwood Road. As Sylvester drove in the eastbound lane on Farmwood Road, one of the passengers warned him that he should slow down because the road ahead was narrow and curvy. As the car approached a sharp curve in the road at the top of a hill, Sylvester slowed the car from thirty miles per hour to approximately fifteen to twenty miles per hour. At that moment, an oncoming vehicle came over the hill from the westbound lane. The lights of that vehicle temporarily blinded Sylvester, and both he and the plaintiff thought that the oncoming vehicle was crossing into their lane. While the oncoming vehicle never left its travel lane, Sylvester braked and veered his car to the right. His car skidded partly off the road and the car's right front side struck a utility pole owned by Connecticut Light and Power Company (power company)3 that was located a short distance from the edge of the road.

As a result of the accident, the plaintiff required surgery to repair a "shattered" elbow,4 which involved the insertion of two metal plates and screws to hold the bone together. The plaintiff was hospitalized for six days and received physical therapy for one and one-half months. As a consequence of the accident, the plaintiff has a 15 percent permanent partial disability of his right arm.

The plaintiff filed this action, alleging negligence against the power company and a violation of the defendant's obligations under § 13a-149. See footnote 2 of this opinion. Prior to trial, the plaintiff withdrew his claim against the power company after receiving a $10,000 settlement. In his subsequent amended complaint, the plaintiff alleged that the defendant's defective design and maintenance of the highway caused his injuries in that: (1) the defendant maintained the road without proper lighting; (2) the road was not reasonably safe for the uses or purposes intended; (3) the defendant maintained the road in a state of disrepair, causing it to be dangerous and hazardous; (4) the layout, grade or design of the road was improper; (5) the road was designed with an extremely sharp curve with a utility pole placed at the apex of the curve at the edge of the roadway, thereby creating a dangerous and hazardous condition; (6) the defendant failed to remedy the stated conditions when it was aware or should have been aware of them in the performance of routine inspections; and (7) the defendant failed to warn travelers of the dangerous and hazardous conditions.

Shortly after testimony began, the trial court conducted a hearing on the plaintiffs motion in limine to preclude the defendant from eliciting testimony regarding settlements with, or sums paid by, both the power company and Sylvester's insurance company, Liberty Mutual Insurance Company (Liberty Mutual), as well as evidence regarding claims against either of those parties. The defendant sought to introduce this evidence to rebut the plaintiffs contention that the defendant was the sole proximate cause of the plaintiffs injuries. In particular, the defendant contended that a claim by the plaintiff against Liberty Mutual was admissible to prove that the plaintiff initially had asserted that Sylvester's negligence had caused the accident.

The trial court denied, in part, the plaintiffs motion regarding the evidence related to the power company, ruling that the original complaint, the power company's answer, and the plaintiffs withdrawal of his action against the power company were evidentiary admissions relevant to whether a claim had been made against the power company. The trial court, however, precluded the defendant from eliciting testimony regarding a settlement or release between the plaintiff and the power company.5 Before ruling on the motion with respect to evidence from Liberty Mutual, the trial court inquired whether the defendant had any evidence of a claim against Sylvester or Liberty Mutual, such as a claim letter from the plaintiff or his counsel. The defendant responded that it had no such evidence. The trial court subsequently granted the plaintiff's motion to exclude evidence regarding any settlement with, any funds paid by, or a release obtained by Liberty Mutual. The trial court did, however, permit the defendant to cross-examine the plaintiff about whether he had made a claim against Liberty Mutual. The plaintiff denied that either he or anyone on his behalf, to the best of his knowledge, had made a claim against any party other than the defendant and the power company.

The plaintiff presented expert witness testimony from John Fitzgerald, a licensed professional engineer and land surveyor, on the condition of Farmwood Road at the site of the accident. Fitzgerald testified to the following information. Farmwood Road was constructed running east to west on a hill sloping down from north to south. There was a 260 foot curvature in the road where the accident occurred, which Fitzgerald characterized as "very sharp...." At this curve, vehicles traveling in either direction would be ascending a 6 percent grade. The two grades meet in a parabolic curve that blends in at the point of the crest. Due to these factors, an operator traveling eastbound would be affected more adversely than one traveling westbound because a westbound vehicle's lights would shine upward as it ascended the grade. As the westbound vehicle traveled over the crest, the vehicle's lights would fan across the front of an oncoming eastbound vehicle, shining its lights directly into that vehicle. In addition, as the eastbound operator approaches the curve, the lane narrows from a width of eight feet to five feet eight inches at the site of the accident.6 At the time of Fitzgerald's examination of the site, the eastbound lane was partly covered with dirt that had accumulated over time. The utility pole at the apex of this curve was situated three feet four inches from the edge of the dirt-packed portion of the road, as compared to a distance of five feet for another utility pole that was situated at the wider portion of the road. There were no signs warning drivers of the upcoming curve or any other traffic control signs posted on the road. Fitzgerald concluded that Farmwood Road was not reasonably safe at the site of the accident due to its curvature, narrow lanes, sight obstruction, pitch and grade. When asked whether the road had been constructed in the aforementioned manner, Fitzgerald responded: "Yes. It certainly was .... [It] did not exhibit any new construction."

At the conclusion of the plaintiffs case-in-chief, the defendant asked the court to consider the testimony of Michael DeStefano, a team manager in the claims department for Liberty Mutual, on the disputed issue of whether there had been a claim by the plaintiff against Sylvester. By agreement of the parties, DeStefano's testimony was heard outside the presence of the jury as an offer of proof. Specifically, the defendant sought to use DeStefano to introduce documents contained in Liberty Mutual's file regarding Sylvester as well as computer generated records pertaining to his file. DeStefano had not obtained the documents directly from the pertinent...

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