Burton v. City of Stamford

• Decision Date: 09 June 2009
• Docket Number: No. 28309.,No. 29468.,28309.,29468.
• Citation: 115 Conn.App. 47,971 A.2d 739
• Court: Connecticut Court of Appeals
• Parties: Godfrey BURTON et al. v. CITY OF STAMFORD.

971 A.2d 739

115 Conn.App. 47

Godfrey BURTON et al. v. CITY OF STAMFORD.

No. 28309.

No. 29468.

Appellate Court of Connecticut.

Argued March 9, 2009.

Decided June 9, 2009.

Kenneth B. Povodator, assistant corporation counsel, with whom, on the brief, was Thomas M. Cassone, corporation counsel, for the appellant-appellee (defendant).

William F. Gallagher, Syracuse, NY, with whom, on the brief, was Hugh D. Hughes, for the appellee-appellant (plaintiff).

FLYNN, C.J., and GRUENDEL and PETERS, Js.

GRUENDEL, J.

On the morning of October 11, 2002, two vehicles collided near the intersection of Main Street and Clinton Avenue in Stamford and a civil action followed. Both parties now appeal from the judgment of the trial court setting aside, and subsequently reinstating, a directed verdict. In AC 28309, the defendant, the city of Stamford, claims that the court abused its discretion in (1) permitting the plaintiff Godfrey Burton¹ to amend his complaint after it had directed a verdict in favor of the defendant and (2) granting the plaintiff's motion to set aside the directed verdict. In AC 29468, the plaintiff maintains that the court improperly directed a verdict in favor of the defendant in light of its determination that the evidence was insufficient as a matter of law on the issue of causation. We affirm the judgment of the trial court in AC 28309 and reverse the judgment of the trial court in AC 29468.

The underlying facts are largely undisputed. On October 11, 2002, the plaintiff was driving his wife's vehicle eastbound on Main Street in Stamford. He was headed to a Jamaican restaurant on Main Street, which is the third store west of the intersection with Clinton Avenue. That morning, Officer James Grabinski of the Stamford police department was operating a vehicle owned by the defendant. At approximately 8:30 a.m., Grabinski responded to a "code two call" on Clinton Avenue.² He proceeded westbound on Main Street with the vehicle's lights and siren activated.

As he approached the intersection of Main Street and Clinton Avenue (intersection),³ Grabinski saw the plaintiff's vehicle at rest and facing east in front of the Jamaican restaurant. Grabinski had a "free and clear unobstructed view and roadway" at that point, and observed no vehicles or pedestrians traveling in either the eastbound or westbound lanes. Grabinski testified that due to wet weather that day, he "started in a slow turn ... a slow, safe, reasonable turn." At trial, Grabinski was unable to recall precisely where he began his left turn onto Clinton Avenue. He further acknowledged that his vehicle was in the eastbound lane—that is, the oncoming lane—prior to the collision.

The plaintiff had no memory of the collision.⁴ Grabinski testified that once he had begun his left turn toward Clinton Avenue, "[s]uddenly, there was a car in front of me, and a collision occurred." He recounted: "I don't recall [the plaintiff's vehicle] being in the travel portion of the roadway until I was in my turn. I was in the process of my turn, and then I saw the vehicle as I was scanning across—then, boom. It was like that." Grabinski further stated that he did not see the plaintiff's vehicle until it was right in front of him.

The vehicles collided nearly head on. As the court found: "The photographs admitted into evidence at trial show the vehicles as they came to rest following the collision. Both cars have extensive front end damage.... As the cars came to rest on Main Street, their conjoined front ends are somewhat east of the ... intersection.... The bumper of the police car had crumpled the front bumper and left front fender of the [plaintiff's vehicle] back approximately to the point of its left front tire.... The plaintiff's [vehicle] is headed approximately straight east on Main Street with all four wheels approximately parallel to the double yellow line and well within the lane designated for eastbound traffic. The police car is positioned at a slight angle to the driver's left, or to the southwest. Its right front tire is several feet south of the double yellow line of Main street, approximately aligned with the left front tire of the [plaintiff's vehicle]; its right rear tire is inches south of the double yellow line. All four tires of the police car are in the eastbound lane of Main Street." (Citations omitted.)

The plaintiff immediately was transferred to Stamford Hospital. Neurologist Joel Feigenson testified that the plaintiff suffered a spinal cord injury between the C3 and C-6 vertebrae that caused a cervical myelopathy, producing weakness in the plaintiff's arms and legs, and a traumatic brain injury.

A civil action followed. By complaint dated September 23, 2003, the plaintiff alleged that the defendant, pursuant to General Statutes § 7-465,⁵ negligently caused the October 11, 2002 accident, which, in turn, caused the plaintiff to suffer physical injury, pain and anguish. A jury trial commenced in November, 2005. Following the close of the plaintiff's case-in-chief, the defendant, in accordance with Practice Book § 16-37, made an oral motion for a directed verdict predicated on two independent grounds: governmental immunity and evidential insufficiency. On November 22, 2005, the court granted that motion, stating: "The plaintiff [has] not proved a case under § 7-465 because [he] did not sue ... Grabinski, nor can [he] proceed under General Statutes § 52-557n or any other statute abrogating governmental immunity because [he has] not amended [his] complaint. The motion for a directed verdict [in favor of the defendant] is therefore granted on the ground of governmental immunity."⁶ Immediately following that oral ruling, the plaintiff sought to amend his complaint by removing the reference to § 7-465, which request the court denied, stating that "it's simply too late."

The plaintiff thereafter timely moved to set aside the directed verdict pursuant to Practice Book § 16-35, arguing, inter alia, that the court improperly denied his request to amend his complaint. After receiving supplemental briefs and conducting a hearing thereon, the court granted the motion to set aside by memorandum of decision filed November 17, 2006. The court acknowledged its earlier mistake, stating that the "court was in error in denying the motion [to amend] as made `too late.' A trial court has wide discretion in granting or denying amendments to pleadings before, during or even after trial." It continued: "The trial ... did not end with the granting of the motion for a directed verdict, and the [plaintiff's] motion to amend should have been considered on its merits in accordance with the court's discretionary powers." On the motion's merits, the court considered the length of the delay, the fairness to the respective parties and the plaintiff's negligence "in not requesting the amendment prior to the granting of a directed verdict." Exercising its discretion, the court determined that the plaintiff's motion to amend should have been permitted. The court further concluded that because the plaintiff had sufficiently apprised the defendant that he was proceeding under § 52-557n at trial, "the directed verdict must be set aside," and a new trial was ordered. From that judgment, the defendant appealed to this court in AC 28309.

In addition, the defendant filed a series of motions with the trial court.⁷ A hearing followed. With the consent of the parties, the court on May 2, 2007, vacated the order for a new trial. The court ordered that it "will decide part one of the defendant's motion for a directed verdict [alleging evidential insufficiency] on the merits.... The court will reconsider the issue of whether ... a new trial should be ordered in connection with its decision on part one of the motion for a directed verdict." On November 27, 2007, the court issued its memorandum of decision. The court concluded that there existed sufficient evidence for the jury reasonably to find that Grabinski was negligent in that he "did not keep a reasonable lookout for traffic in the moments prior to [the] collision" and that "Grabinski failed to take evasive action to avoid a collision despite actual knowledge that a collision was imminent." The court nevertheless concluded that the evidence was insufficient as a matter of law to establish that Grabinski's negligence caused the plaintiff's injuries, relying principally on Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007). As a result, the court once again directed a verdict in favor of the defendant and rendered judgment accordingly. From that judgment, the plaintiff has appealed in AC 29468. On January 5, 2009, the appeals were ordered consolidated.

I AC 28309

Before considering the defendant's specific claims on appeal, we first address a threshold question of subject matter jurisdiction. "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time.... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it.... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction...." (Internal quotation marks omitted.) Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). "A determination regarding a trial court's subject matter jurisdiction is a question of law" over which our review is plenary. Doe v. Roe, 246 Conn. 652, 660, 717 A.2d 706 (1998). In addition, when a decision as to whether a court has subject matter jurisdiction is required, "every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).

At issue is whether the defendant's appeal is moot. "Mootness implicates [the] court's subject matter jurisdiction.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction;...