Cavaliere v. Olmsted, No. 26666.
| Decision Date | 07 November 2006 |
| Docket Number | No. 26666. |
| Citation | 909 A.2d 52,98 Conn.App. 343 |
| Court | Connecticut Court of Appeals |
| Parties | Dominick J. CAVALIERE v. Virginia J. OLMSTED. |
Philip Russell, Greenwich, filed a brief for the appellant (plaintiff).
Kevin R. Murphy, Bridgeport, and Robert J. Sickinger filed a brief for the appellee (substitute defendant).
DiPENTIMA, McLACHLAN and PETERS, Js.
The plaintiff, Dominick Cavaliere, appeals from the judgment of the trial court rendered after a jury trial that culminated in a general verdict in favor of the substitute defendant, Joseph Olmsted, executor of the estate of Virginia J. Olmsted.1 On appeal, the plaintiff claims that the court improperly (1) failed to charge the jury on the applicable standard of care owed by the defendant motor vehicle operator to the plaintiff construction worker and (2) charged the jury as to comparative negligence. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. At approximately 7:30 a.m. on August 21, 2000, the plaintiff was performing road resurfacing work on Cherry Street in New Canaan. The plaintiff was an employee and part owner of Cavaliere Industries, Inc., and was the foreman at the work site. At that time, the defendant was operating her vehicle on Cherry Street and was proceeding through the road construction area at approximately ten to fifteen miles per hour. The plaintiff was walking along the roadway beside a milling machine, which is a large piece of construction equipment. He then walked several steps out into the roadway, without looking back to check for traffic, and was struck by the defendant's vehicle.
Vincent DeMaio, a sergeant with the New Canaan police department, witnessed the accident. Approximately five minutes before the plaintiff was struck, DeMaio had driven through the road construction area. He noticed that proper traffic controls were not in place. He observed that there were no flagmen at the site, no signs prohibiting access and no barricades to prevent vehicles from entering the roadway. DeMaio telephoned his lieutenant and requested that he come to the site so that proper traffic controls could be put in place or to close the construction site. DeMaio was looking for the foreman of the project to discuss the situation when he happened upon the accident. He observed the plaintiff, who was not wearing a reflective vest, walking across Cherry Street prior to impact with the defendant's vehicle. In his accident report, DeMaio listed the driver's obstructed view as a contributing factor. The line of sight obstruction was due to the position of the milling machine and the grade and curve of the roadway.
On April 9, 2002, the plaintiff filed this action, claiming that the defendant's negligent operation of her vehicle caused his injuries. The plaintiff alleged, inter alia, that the defendant breached her duty of care by "failing to exercise due care to avoid a pedestrian pursuant to . . . General Statutes § 14-300d" and by "failing to keep an appropriate look out for pedestrians . . . ." The defendant denied those allegations in her answer and asserted a special defense of contributory negligence. At trial, neither party requested jury interrogatories. The jury returned a general verdict in favor of the defendant, and the court denied the plaintiff's subsequent motion to set aside the verdict. This appeal followed.
The plaintiff claims that the court improperly failed to charge the jury on the applicable standard of care owed by the defendant, as an operator of a motor vehicle, to the plaintiff, as a construction worker in a road construction area. Specifically, the plaintiff argues that a special or heightened duty of care arises when motorists are aware of the existence of highway workers in a construction area. His second issue is related in that he claims that the court's charge to the jury on the defendant's special defense of contributory negligence was improper because the plaintiff was identified as a pedestrian, rather than as a construction worker.2 That issue also would implicate the applicable standard of care. The plaintiff claims that the degree of care he needed to exercise as a construction worker was not as high as that expected of a pedestrian.
Before we consider the merits of the plaintiff's claims on appeal, we first must determine whether our review of those claims is barred by the general verdict doctrine. (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d 888 (2004).
The defendant claims that without jury interrogatories, this court is unable to discern whether the jury found that the plaintiff had failed to prove the negligence allegations of his complaint or whether the jury found that the defendant had prevailed on her special defense of contributory negligence. Because the plaintiff challenges the court's determination of the applicable standard of care in a situation involving a motorist and a construction worker in a road construction area, the claimed error affects not only the claims of negligence in the complaint, but also the claim of contributory negligence in the special defense. If the plaintiff is correct that a construction worker is owed a higher duty of care in a work area, then the degree of care that he must exercise to avoid a claim of contributory negligence would be less than that required of a pedestrian under ordinary circumstances. The plaintiff's claim alleges a defect in the instruction that relates both to the plaintiff's theory of negligence and the defendant's theory of contributory negligence. For that reason, even if we assume that the jury rejected the plaintiff's allegations of negligence and found him contributorily negligent, both of those determinations are undermined by the court's...
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Klein v. Quinnipiac Univ.
..."untainted" route to the verdict, I do not find the general verdict rule applicable in the present case. See Cavaliere v. Olmsted , 98 Conn. App. 343, 347–48, 909 A.2d 52 (2006) (holding that general verdict rule did not apply because, even if this court assumed that jury rejected plaintiff......
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...judicial resources, at both the appellate and trial levels." (Emphasis added; internal quotation marks omitted.) Cavaliere v. Olmsted, 98 Conn.App. 343, 347, 909 A.2d 52 (2006). "Where two or more counts have been alleged in a complaint . . . the defendant has the right to save himself from......