Graham v. Comm'r of Transp.

• Decision Date: 03 August 2021
• Docket Number: AC 43919
• Citation: 206 Conn.App. 497,260 A.3d 1275
• Parties: Barry GRAHAM v. COMMISSIONER OF TRANSPORTATION
• Court: Connecticut Court of Appeals

206 Conn.App. 497

260 A.3d 1275

Barry GRAHAM

v.COMMISSIONER OF TRANSPORTATION

AC 43919

Appellate Court of Connecticut.

Argued May 18, 2021

Officially released August 3, 2021

Ralph J. Monaco, with whom, on the brief, was Eric J. Garofano, New London, for the appellant (substitute plaintiff).

Paul T. Nowosadko, with whom was Lorinda S. Coon, Hartford, for the appellee (defendant).

Bright, C.J., and Clark and Bear, Js.

BEAR, J.

The substitute plaintiff, Ethan Raymond Graham, the administrator of the estate of the plaintiff, Barry Graham,¹ appeals from the judgment of the trial court denying his motion to set aside a jury verdict in favor of the defendant, the Commissioner of Transportation, after the jury found the defendant not liable for the plaintiff's motor vehicle accident and resulting injuries under the defective highway statute, General Statutes § 13a-144.² On appeal, the substitute plaintiff claims that the trial court (1) abused its discretion by refusing to accept the jury's initial verdict, and by returning the jury to continue its deliberations to rectify an inconsistency in its verdict, and (2) erred with respect to the instruction that it gave to the jury prior to returning the jury to continue its deliberations. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our consideration of the substitute plaintiff's claims on appeal. This matter arose out of a motor vehicle accident that occurred on December 12, 2011, on the Gold Star Memorial Bridge (bridge) on Interstate 95 over the Thames River between New London and Groton. The plaintiff brought this action against the defendant pursuant to § 13a-144, the "defective highway statute," alleging that his accident was caused by black ice, which constituted a highway defect. The defendant filed a motion for summary judgment claiming, among other things, a lack of notice of the icy spot on the bridge that caused the plaintiff's accident and that, even if notice of the icy condition of the bridge existed, the plaintiff's accident occurred before there was a reasonable amount of time to respond to and remedy that condition. It was undisputed that another ice related car accident had occurred on the bridge earlier that day, at 5:40 a.m., and that the state police had notified the Department of Transportation (department) at 5:49 a.m. of the icy conditions on the bridge.

The defendant submitted affidavits describing the prompt activation of the department's after-hours call out protocol and the activities of the department's crew in traveling from their homes to a department garage in Waterford, loading a truck with salt, and driving to the bridge. The plaintiff's accident occurred at 6:38 a.m., before the arrival of the department's crew. The trial court granted the defendant's motion for summary judgment, concluding that, even if the defendant had constructive notice of the icy conditions of the bridge on the basis of the earlier accident, the department's response time was reasonable as a matter of law.

On appeal, this court reversed the trial court's granting of the defendant's motion for summary judgment, concluding that there were genuine issues of material fact with respect to the reasonableness of the defendant's response after he received notice of the defect, and that this "multifactorial determination" should be made by a jury. See Graham v. Commissioner of Transportation , 168 Conn. App. 570, 586, 148 A.3d 1147 (2016), rev'd in part on other grounds, 330 Conn. 400, 195 A.3d 664 (2018). Our Supreme Court granted the defendant's petition for certification to appeal in part, focusing on a sovereign immunity issue that is not relevant to the present appeal. See Graham v. Commissioner of Transportation , 330 Conn. 400, 403 n.2, 195 A.3d 664 (2018). Our Supreme Court remanded the case for trial, noting that "the sole factual issue remaining ... [was] the reasonableness of the commissioner's response to the highway defect after receiving notice from the state police." (Emphasis in original.) Id., at 427, 195 A.3d 664.

Because the plaintiff died during the pendency of that appeal, following the remand, the administrator of the plaintiff's estate was substituted as the plaintiff.

The case was tried to a jury in November, 2019, and the defendant maintained at trial that the department's crew acted reasonably and did not have time to travel to the bridge prior to the plaintiff's accident. The defendant submitted proposed jury interrogatories to the substitute plaintiff's counsel, who "reviewed the interrogatories and made a change unrelated to the present controversy." Interrogatory number four, which is central to this appeal, provided: "Do you find that the defendant had a reasonable time to remedy the specific defect after [he] knew of it prior to the plaintiff's accident?"

After three days of deliberations, the jury attempted to return a plaintiff's verdict while also answering "no" to interrogatory number four (initial verdict).³ The court thereafter stated: "Ladies and gentlemen of the jury, it is apparent to me, from a review of the jury interrogatories and verdict form that you have submitted, that you've made a mistake. Specifically, I'm returning you to the jury deliberation room to reconsider your verdict in light of the jury interrogatories and to correct that mistake. If you need portions of the evidence or charge reread to assist you, please provide me with a note in accordance with the procedures I've previously described. I think at this stage that's all I'll say. And if you need further guidance, you can advise me accordingly." There was no contemporaneous objection to the court's instruction. The jury returned a few minutes later with a defendant's verdict, maintaining its "no" answer to interrogatory number four. The court accepted the verdict. The substitute plaintiff thereafter filed a motion to set aside the verdict, which the court denied. This appeal followed.

I

The substitute plaintiff claims that the trial court abused its discretion by refusing to accept the initial verdict and by returning the jury to its deliberations to rectify the inconsistency in that verdict. Specifically, the substitute plaintiff argues that the initial verdict was "supported by the answers to interrogatories [one, two, three, five, and six],⁴ taken in combination with the presumption that the jury followed the jury charge," and that, because interrogatory number four "contains language that is markedly different than the jury charge," therefore "[t]he negative answer to [interrogatory number four] does not defeat the plaintiff's verdict." (Footnote added.) Additionally, the substitute plaintiff argues that "there was extensive evidence of prior accidents on the bridge covered with ice to allow the jury to make a fact specific determination that the [department's] response time was not reasonable." We are not persuaded.

We begin with our standard of review. "The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. ... Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done. ... [T]he role of the trial court on a motion to set aside the jury's verdict is not to sit as [an additional] juror ... but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... In reviewing the action of the trial court in denying [or granting a motion] ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion ...." (Internal quotation marks omitted.) Rendahl v. Peluso , 173 Conn. App. 66, 94–95, 162 A.3d 1 (2017).

Additionally, this court stated in Rendahl that, "[p]ursuant to General Statutes § 52-223, [t]he court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration. See also Practice Book § 16-17....

"A trial court may decline to accept a verdict and return the jury to continue its deliberations when the verdict form or accompanying interrogatories, if any: are legally inconsistent; e.g., Bilodeau v. Bristol , 38 Conn. App. 447, 455, 661 A.2d 1049 ([w]here answers to interrogatories are inconsistent, trial court has duty to attempt to harmonize the answers), cert. denied, 235 Conn. 906, 665 A.2d 899 (1995) ; contain incomplete findings as to the essential elements of a cause of action or fail to completely dispose of an essential issue; e.g., Tisdale v. Riverside Cemetery Assn. , 78 Conn. App. 250, 258–60, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003) ; or are so ambiguous that the verdict cannot be said to contain an intelligible finding ...." (Internal quotation marks omitted.) Rendahl v. Peluso , supra, 173 Conn. App. at 95–96, 162 A.3d 1 ; see also Kregos v. Stone , 88 Conn. App. 459, 470, 872 A.2d 901 ("[a] verdict that is inconsistent or ambiguous should be set aside"), cert. denied, 275 Conn. 901, 882 A.2d 672 (2005).

In the present case, interrogatory number four asked the jury to determine whether the defendant had a reasonable amount of time to remedy the specific defect of an icy road surface after he became aware of the defect prior to the plaintiff's accident. The jury found that he did not have a reasonable time to remedy the highway defect....