D'Arcy v. Shugrue

• Decision Date: 20 August 1985
• Docket Number: No. 2516,2516
• Citation: 496 A.2d 967,5 Conn.App. 12
• Court: Connecticut Court of Appeals
• Parties: Paula D'ARCY, Administratrix (ESTATES OF Roy T. D'ARCY and Sarah E. D'Arcy) v. James F. SHUGRUE, Commissioner of Transportation.

Page 967

496 A.2d 967

5 Conn.App. 12

Paula D'ARCY, Administratrix (ESTATES OF Roy T. D'ARCY and Sarah E. D'Arcy) v. James F. SHUGRUE, Commissioner of Transportation.

No. 2516.

Appellate Court of Connecticut.

Argued May 14, 1985.

Decided Aug. 20, 1985.

William F. Gallagher, New Haven, with whom, on the brief, were Terence A. Zemetis and Joseph M. Delaney, Wallingford, for appellant-appellee (defendant).

Richard A. Bieder, Bridgeport, with whom was Alex A. Knopp, East Norwalk, for appellee-appellant (plaintiff).

Before HULL, BORDEN and DALY, JJ.

BORDEN, Judge.

The plaintiff is the administratrix of the estates of her husband, Roy T. D'Arcy, and her daughter, Sarah E. D'Arcy. They died when their motor vehicle was struck on Interstate Highway 84 by another motor vehicle, operated by Chester Milton, who had lost control of his vehicle, crossed over the grassy median divider and collided with the D'Arcy vehicle.

The case involves the question of whether the failure of the defendant, the commissioner of transportation, to erect a metal beam divider at that point in the highway could rationally be found to be the sole proximate cause of the deaths of the D'Arcys. We hold that, under the circumstances of this case, as a matter of law the defendant's negligence could not have been the sole proximate cause of their deaths.

On August 18, 1975, at approximately 4 p.m., Roy T.D'Arcy was operating his vehicle, in which the plaintiff and his daughter were passengers, in a westerly direction on Interstate 84, a divided, limited access state highway in Farmington. Milton was operating his vehicle at an excessive rate of speed in an easterly direction on the other side of the highway when he lost control of his vehicle. He crossed the grassy median divider at a point at which there was no barrier and collided with the D'Arcy vehicle in the westbound lane. The collision caused the deaths of Roy T. D'Arcy and Sarah E. D'Arcy.

The plaintiff sued the defendant pursuant to General Statutes § 13a-144, which imposes liability on the commissioner for injuries suffered "through the neglect or default of the state or any of its employees by means of any defective highway ... which it is the duty of the commissioner of transportation to keep in repair...." This liability, however, can only be imposed if the defect in the highway is the sole proximate cause of the plaintiff's injuries and if those injuries are not also proximately caused by the negligence of the plaintiff or a third person. Roth v. MacDonald, 124 Conn. 461, 463, 200 A.2d 725 (1938).

The trial court reserved decision on the defendant's motion for a directed verdict and submitted the case to the jury, together with a series of special interrogatories. The jury rendered a verdict for the plaintiff. In response to the special interrogatories, they found specifically that the defendant was negligent because the absence of a metal beam divider in the construction plan of the highway rendered it unsafe from the date of its opening in 1969 to the date of the collision. The jury also specifically found that this negligence was the sole proximate cause of the deaths because it was the only proximate cause and because it superseded the conduct of Milton.

The defendant moved, pursuant to Practice Book § 321, for judgment in accordance with his earlier motion for a directed verdict, and to set aside the verdict. The trial court denied both motions and rendered judgment on the verdict. The defendant appeals, raising several claims of error. The plaintiff cross appeals, urging us to abandon the rule which predicates the commissioner's liability on a determination that his negligence is the sole proximate cause of the plaintiff's injuries. We find error on the appeal, and no error on the cross appeal.

THE DEFENDANT'S APPEAL

Although the defendant raises several claims on appeal, both parties agree, as do we, that the central issue is whether there was sufficient evidence to support the verdict. "We are mindful that the 'ruling of the trial court on a motion to set aside a verdict is entitled to great weight' because of the court's familiarity with the facts and circumstances of the case." Nielson v. D'Angelo, 1 Conn.App. 239, 244, 471 A.2d 965, cert. dismissed, 193 Conn. 801, 474 A.2d 1259 (1984). We are also mindful of the fact that the jury answered the special interrogatories favorably to the plaintiff, and that, on reviewing a claim of evidentiary sufficiency, we must view the evidence most favorably to sustaining the verdict. Id., 245, 471 A.2d 965. We are also aware, of course, that the issue of causation in a negligence action is a question of fact for the trier, subject to reversal by the court only if the evidence is insufficient as a matter of law to support the verdict. See Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384-86, 441 A.2d 620 (1982). We conclude, nonetheless, that the evidence in this case was insufficient, as a matter of law, to support the verdict and that the court erred in denying the defendant's motions for judgment and to set aside the verdict.

I

Since the claimed negligence of the defendant pursuant to General Statutes § 13a-144 consisted of a design defect, namely, the absence of a metal beam divider, it was incumbent on the plaintiff to establish that the highway's " 'plan of construction [was] one which was totally inadmissible, [i.e., that] the highway would have been in such a defective condition as to have been out of repair from the beginning.' " Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970). The plaintiff introduced sufficient evidence for the jury to find, as it did, this requirement satisfied. It was also necessary, however, that the plaintiff establish that the defendant's negligence was the sole proximate cause of the deaths of the decedents. The evidence was insufficient, as a matter of law, to establish this sole proximate cause.

The evidence most favorable to sustaining the verdict was as follows: At the area of the highway in question the grassy median divider was 45 feet wide between the eastbound and westbound lanes. There are large concrete pilings, known as a "stack," located on the median. The stack was originally constructed to support intersecting highways which were stacked above and crossed over the highway. There was a metal guardrail protecting the stack. There were also concrete parapets connected to a bridge overpass where the highway crosses over a local road. A metal guardrail ran from the parapet toward the stack. The end of this guardrail was buried in the grassy median. Thus, there was a gap, approximately 1250 feet long, in the grassy median, between the metal guardrail protecting the stack and the buried end of the metal guardrail protecting the parapet.

The D'Arcy vehicle was traveling westerly in the right, or slow, lane. Milton's vehicle left the eastbound lane, began to spin and yaw as it crossed the grassy median, struck the buried end of the metal rail, entered the westbound lanes and struck the D'Arcy vehicle.

It was critical to the plaintiff's claim of the defendant's negligence that she prove that the absence of a metal beam divider in the 1250 foot gap, through which Milton's vehicle traveled, was a factual, or "but for," cause of the collision. In order to do so, she produced two experts who in essence supplied the opinions necessary to her claim.

The first was Harry Gough, a consulting engineer, who reconstructed the accident as follows: When Milton left the eastbound highway he was traveling approximately 87.7 miles per hour. When the right rear of his vehicle hit the end of the metal barrier, where it entered the ground, he was traveling at 79.9 miles per hour. When he collided with the D'Arcy vehicle, he was traveling at 55 miles per hour. The D'Arcy vehicle was traveling at 55 miles per hour prior to the collision. Roy T. D'Arcy had applied his brakes and slowed to 48 miles per hour at the moment of impact. Milton left 250 feet of skid marks from the point at which his vehicle had left the highway to the point of collision. As it crossed the median, the center of gravity of the Milton vehicle was traveling at a 21.28 degree angle, although the vehicle itself had rotated to a 33 degree angle. The right central area, just forward of the door of the Milton vehicle, collided with the D'Arcy vehicle.

The second expert witness was Robert Brenner, a mechanical, traffic and safety engineer. The critical part of Brenner's testimony was in response to a hypothetical question which assumed the following facts, inter alia: The portion of the highway was essentially as already described. When the Milton vehicle first contacted the grassy median it was at an angle of 11 degrees and was traveling at 87.2 miles per hour, with its brake lights on. It continued until it contacted the corner of the beam rail, at which point its angle was 19.5 degrees and its speed 79.5 miles per hour. A portion of the vehicle hit the guardrail, and it continued to spin and hit the D'Arcy vehicle, which had pulled to the right. The Milton vehicle weighed 4482 pounds. Roy T. D'Arcy and Sarah D'Arcy died as a result of the collision.

In response to this hypothetical question, which also included other relevant assumed facts concerning the absence of and the costs of installing a metal beam median barrier, Brenner testified as follows: But for the absence of a median barrier, the collision would not have occurred because such a barrier would have redirected the Milton vehicle, and, alternately, but for the end of the guardrail, which caused the Milton vehicle to spin, Milton would have had a chance to regain control of his vehicle and avoid the collision. He also testified that these conditions rendered the highway unreasonably dangerous from the time it opened.

The plaintiff also introduced the police report of the accident, which indicated, inter alia, that the Milton vehicle was traveling faster...