Curry v. Burns
Decision Date | 16 November 1993 |
Docket Number | No. 9488,9488 |
Citation | 633 A.2d 315,33 Conn.App. 65 |
Court | Connecticut Court of Appeals |
Parties | Vicki S. CURRY v. J. William BURNS, Commissioner of Transportation. |
James H. Lee, Fairfield, for appellant (plaintiff).
Raymond J. Plouffe, Jr., Bridgeport, for appellee (defendant).
Before FOTI, FREDERICK A. FREEDMAN and SCHALLER, JJ.
This case was remanded from our Supreme Court, Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993).
The plaintiff brought this action under General Statutes § 13a-144, 1 against the defendant commissioner of transportation, for injuries she sustained in a motor vehicle accident allegedly caused by a defective highway. The defendant denied that he had breached his statutory duty to maintain the highway, and also denied that the plaintiff had given proper notice as required by § 13a-144. The case was tried to a jury and a verdict was returned in favor of the defendant. The plaintiff filed a motion to set aside the verdict. The court denied the motion and rendered judgment for the defendant.
In this appeal, the plaintiff alleges that the trial court acted improperly with respect to the issue of statutory notice in that it (1) quashed two subpoenas, (2) redacted the statutory notice given by the plaintiff, and (3) failed to instruct the jury as requested. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. On March 14, 1984, at about 5:30 a.m., the plaintiff was operating a tractor trailer eastbound in the center lane of Interstate 95 between exits four and five in Greenwich when her vehicle hit a pothole. The plaintiff's vehicle collided with an automobile attempting to pass her on the left. As a result of the collision, she sustained personal injuries.
The plaintiff first alleges that the trial court improperly quashed two subpoenas duces tecum issued on her behalf. The first was directed to the "District 3 Director of Maintenance Department of Transportation, of 140 Pond Lily Avenue, New Haven, State of Connecticut" (DOT). The plaintiff, through an offer of proof with respect to the relevancy of the materials sought to be discovered, indicated that the material solicited by the DOT subpoena was intended to show that subsequent remedial repairs to the defect had been made, thereby demonstrating that the notice given by the plaintiff was adequate. The defendant moved to quash this subpoena on the grounds that the person named on the subpoena did not exist, and that evidence of subsequent repairs is inadmissible in a highway defect matter.
The court granted the defendant's motions to quash both subpoenas, indicating that the jury must decide the sufficiency of the notice from the face of the notice, and further that the subpoena served on the "District 3 Director of Maintenance" was not issued for an existing person.
Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn.App. 693, 700, 622 A.2d 578 (1993). Trial courts have wide discretion in ruling on the relevancy of evidence. State v. Varricchio, 176 Conn. 445, 450, 408 A.2d 239 (1979). In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987).
The state highway notice requirement under General Statutes § 13a-144 must be strictly construed. Bresnan v. Frankel, 224 Conn. 23, 26 n. 3, 615 A.2d 1040 (1992); see also Pratt v. Old Saybrook, 225 Conn. 177, 183, 621 A.2d 1322 (1993). By its actions, it is clear that the trial court found the notice to be adequate as a matter of law and allowed the jury to decide the sufficiency of the notice. 2 The sufficiency of the notice is tested with reference to its purpose. Warkentin v. Burns, 223 Conn. 14, 18, 610 A.2d 1287 (1992). The purpose is to furnish the commissioner with such precise information as to the time and place of an accident or defect as will enable an intelligent inquiry into the facts of the matter, and to protect the state's interests. Bresnan v. Frankel, supra, 224 Conn. at 26, 615 A.2d 1040.
We agree that the general rule is that evidence of subsequent repair is not admissible on the issues of negligence, causation, or the existence of a defect. Hall v. Burns, supra, 213 Conn. at 456-65, 569 A.2d 10. We also agree that evidence of remedial repairs may not be presented to the jurors for the purpose of aiding them in determining the sufficiency of the notice. Murray v. Commissioner of Transportation, 31 Conn.App. 752, 756, 626 A.2d 1328 [33 Conn.App. 70] (1993). The plaintiff argues that if the remedial repair was made, then it follows that the notice was adequate. We do not agree. Subsequent remedial measures may have been performed in the regular course of business and not as a result of the notice. The repair and notice may be totally unconnected. We cannot conclude that the trial court abused its discretion in granting the motion to quash the subpoena.
Further, the court's action as to the DOT subpoena was proper for another reason. The plaintiff concedes that there is no such person as the "District 3 Director of Maintenance." We also conclude, therefore, that the trial court acted properly in quashing the subpoena because it was not in compliance with General Statutes § 52-143. 3
The second subpoena was directed to the claims manager of the Aetna Casualty and Surety Company (Aetna). The plaintiff indicated that material solicited by the Aetna subpoena was intended to establish notice. The plaintiff argued that since Aetna investigated the claim, it must have found the pothole. Since it found the pothole, "it follows that the notice served as a reasonable guide, and therefore, met that standard of adequacy."
We conclude that the trial court reasonably exercised its discretion in excluding evidence that the plaintiff attempted to gain through the Aetna subpoena. The sole issue to be determined by the jury was whether the notice afforded a reasonable guide to the commissioner in the conduct of his inquiries. The material sought by the plaintiff involved insurance, a new and collateral issue. Its introduction could only have impeded the jury in its deliberations.
Relevant evidence may be excluded if it has the potential to create prejudice or to raise a side issue that would unduly distract the jury from the main issue. State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982). Relevant evidence may also be excluded if it tends to confuse the issues or mislead the jury. We cannot conclude that the trial court abused its discretion in sub silentio determining that the probative value of the evidence sought to be obtained by the Aetna subpoena was outweighed by its prejudicial impact. See State v. Sharpe, 195 Conn. 651, 660, 491 A.2d 345 (1985); State v. Reid, 193 Conn. 646, 656, 480 A.2d 463 (1984).
The material sought through the Aetna subpoena was also intended to establish that the notice was adequate because (1) it fulfilled its statutory purpose, (2) it was not misleading in any way, and (3) it may have assisted an "agent" of the commissioner in conducting inquiries. Warkentin v. Burns, supra. The fact that someone may have actually investigated the claim is of no relevance to the sufficiency of the notice. As previously stated, the sole issue to be determined by the jury was whether the plaintiff's description of the location of the pothole was so inadequate that the defendant would not have been able readily to ascertain its location and to make an intelligent inquiry into the details of the accident. See Ozmun v. Burns, 18 Conn.App. 677, 680-81, 559 A.2d 1143 (1989). The trial court did not abuse its discretion in granting the defendant's motion to quash the subpoena.
The plaintiff next claims that the court improperly redacted her written notice when it was submitted to the jury. 4 When it was called to the plaintiff's attention after she had rested that the notice was not in evidence, the court offered to allow the plaintiff to reopen her case for the purpose of presenting evidence on that issue. While the defendant admitted to receiving the notice, he disputed its adequacy; he claimed it was technically insufficient as a statutory notice. The plaintiff chose not to offer any additional evidence, and the parties attempted to agree on a redaction of the notice. The court, upon determining that no such agreement would be reached, advised both parties what would not be allowed, and the redacted notice was then submitted to the jury. The court indicated that the only relevant portions of the notice were those required by the statute. The plaintiff's counsel represented that he was in substantial agreement, but took an exception when the redacted notice was submitted.
The only issue raised by the defendant's denial of the adequacy of the plaintiff's notice was whether the description of the location of the defect "in the eastbound center lane of the Connecticut Turnpike (I-95), east of Exit 4"; see footnote 4; was sufficient. The final redacted notice submitted to the jury included all of the essential elements prescribed by the statute: written notice of the injury, a general description of that injury, the cause, the time and the place.
It is not disputed that the court...
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