Elliott v. Larson, (AC 23923).

• Court: Appellate Court of Connecticut
• Writing for the Court: LAVERY, C. J.
• Citation: 840 A.2d 59,81 Conn. App. 468
• Parties: JAMES ELLIOTT v. MARY T. LARSON
• Docket Number: (AC 23923).
• Decision Date: 10 February 2004

81 Conn. App. 468
840 A.2d 59

JAMES ELLIOTT
v.
MARY T. LARSON

(AC 23923).

Appellate Court of Connecticut.

Argued October 27, 2003.

Officially released February 10, 2004.

Lavery, C. J., and Foti and Dranginis, Js.

81 Conn. App. 469

John K. McDonald, with whom, on the brief, was Melissa A. Scozzafava, for the appellant (defendant)

Olga E. Zargos, with whom were Jeffrey L. Ment and, on the brief, Brenda M. Hamilton, for the appellee (plaintiff).

Opinion

LAVERY, C. J.

In this negligence action, the defendant, Mary T. Larson, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, James Elliott. On appeal, the defendant claims that the court improperly (1) denied her motion for a directed verdict, (2) denied her motion for a judgment notwithstanding the verdict and (3) granted the plaintiff's motion for an additur. We affirm the judgment of the trial court. Because the defendant did not accept the court's additur, a new trial is warranted.

81 Conn. App. 470

The record discloses the following relevant facts and procedural history. On February 19, 2000, at approximately 6:30 p.m., the plaintiff, an officer with the Hartford police department, was operating his personal motor vehicle, a pickup truck, in a northerly direction on Cooke Street in Plainville. As he stopped his truck and waited to turn left onto Betsy Road, his truck was struck from behind by the defendant's car, which also was traveling in a northerly direction on Cooke Street. The sky was dark at the time of the accident, and Cooke Street was covered with snow, ice and slush as a result of a storm that had ended a few hours earlier

In May, 2001, the plaintiff commenced this negligence action against the defendant, seeking damages for personal injuries and other losses that he allegedly sustained in the accident. In his complaint, the plaintiff alleged, inter alia, that the defendant had been negligent in that she operated her vehicle at a rate of speed greater than was reasonable under the conditions in violation of General Statutes § 14-218a, she operated her vehicle with inadequate brakes in violation of General Statutes § 14-80h, she operated her vehicle too close to the rear of the plaintiff's vehicle and failed to apply her brakes in time to avoid the collision in violation of General Statutes § 14-240, and she failed to keep her vehicle under proper and reasonable control. The defendant filed an answer and special defenses claiming that the plaintiff's injuries and losses were the result of his negligence in that he had stopped suddenly without reasonable warning, failed to signal his intention to stop in a reasonable manner and failed to signal his intention to turn left.

The trial commenced on October 16, 2002. At the close of the plaintiff's case-in-chief, the defendant made an oral motion for a directed verdict on the ground that the plaintiff had failed to present sufficient evidence to establish that she had been negligent in the operation

81 Conn. App. 471

of her vehicle. The court denied the motion. Thereafter, the defendant proceeded to present her defense. On October 22, 2002, the jury returned a verdict awarding the plaintiff $18,338.70 in economic damages. The jury did not award any noneconomic damages. The damages award was reduced to $11,003.22 on the basis of the jury's finding that the plaintiff had been 40 percent comparatively negligent

On October 29, 2002, the plaintiff filed a motion to set aside the verdict or for an additur, and the defendant filed a motion for a judgment notwithstanding the verdict. On January 28, 2003, the court granted the plaintiff's motion for an additur,¹ entering an additur of $12,000 in noneconomic damages for a total award of $30,338.70, which was reduced by 40 percent to $18,203.22 on the basis of the plaintiff's comparative negligence. The defendant did not accept the court's additur. The court also denied the defendant's motion for a judgment notwithstanding the verdict.² This appeal followed.

I

The defendant first claims that the court improperly denied her motion for a directed verdict, which she made at the close of the plaintiff's case-in-chief. "[W]hen a trial court denies a defendant's motion for a directed verdict at the close of the plaintiff's case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling. . . .

81 Conn. App. 472

The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiff's] case. . . . On appeal in such cases, the question becomes whether . . . there is evidence in the entire record to justify submitting the matter to a trier of fact. . . . Although we have questioned the continuing viability of the waiver rule in the criminal context . . . we have never questioned its applicability in the civil context." (Citations omitted; emphasis in original; internal quotation marks omitted.) In re James L., 55 Conn. App. 336, 340-41, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999)

The defendant has articulated no reason why the rationale underlying the "waiver rule" should not operate in this case. We conclude, therefore, that the waiver rule precludes our review of the defendant's first claim. See id., 341.

II

The defendant next claims that the court improperly denied her motion for a judgment notwithstanding the verdict. Specifically, the defendant contends that there was insufficient evidence to permit a reasonable jury to conclude that the defendant was negligent in the operation of her vehicle. We disagree.

"Appellate review of a trial court's refusal to render judgment notwithstanding the verdict occurs within carefully defined parameters. We must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial. . . . This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony. . . . Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion

81 Conn. App. 473

that they did reach." (Internal quotation...