Hall v. Burns

• Decision Date: 23 January 1990
• Docket Number: No. 13711,13711
• Court: Connecticut Supreme Court
• Parties: Lawrence HALL, Guardian (ESTATE OF Jessica HALL) v. J. William BURNS, Commissioner of Transportation.

Page 10

569 A.2d 10

213 Conn. 446

Lawrence HALL, Guardian (ESTATE OF Jessica HALL) v. J. William BURNS, Commissioner of Transportation.

No. 13711.

Supreme Court of Connecticut.

Argued Oct. 10, 1989.

Decided Jan. 23, 1990.

[213 Conn. 447] Richard A. Bieder, with whom, on the brief, was Joan C. Harrington, Bridgeport, for appellant (plaintiff).

Arnold J. Bai, with whom were Lawrence Russ, Asst. Atty. Gen., and, on the brief, James E. Coyne, Garie J. Mulcahey, Bridgeport, and H. Owen Chase, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal concerns an action brought under General Statutes § 13a-144 ¹ by the plaintiff Lawrence Hall, as guardian of the estate of Jessica Hall, his granddaughter, against the defendant commissioner of transportation, J. William Burns, for injuries sustained in a motor vehicle accident allegedly caused by the defendant's neglect and default in maintaining routes 6 and 25 in Newtown. The case was heard before a jury and was bifurcated on the issues of liability and damages. On October 28, 1988, the jury returned a verdict in favor of the defendant. The plaintiff subsequently filed a motion to set aside the verdict that was denied on March 3, 1989, and the court, Stodolink, J., rendered judgment for the defendant. From that judgment the plaintiff appeals. Pursuant to Practice Book § 4023, we transferred the case to ourselves. We find no error.

The jury could reasonably have found the following facts, which will be supplemented as the issues require. On August 4, 1983, Jessica Hall was involved in a motor vehicle accident at the intersection of routes 6 and 25 and the spur from exit 9 of I-84 in Newtown. Jessica was a passenger in a 1983 model pickup truck driven by her mother, Wendy Hall. Wendy Hall left exit 9 of I-84 and proceeded eastbound on the spur to routes 6 and 25. At this point, routes 6 and 25 overlap into one road. When she approached the intersection of the spur and routes 6 and 25, she attempted to take a left turn to go north on routes 6 and 25. She testified that because her vision was obstructed by brush she could not see traffic traveling south on routes 6 and 25 so she inched her way onto the highway to obtain a view. At that point, a tractor trailer truck driven by Charles Zekelsky was driving southbound on routes 6 and 25. Wendy Hall did not see the tractor trailer until it was suddenly upon her vehicle. Zekelsky attempted to avoid a collision by braking and swerving to the left but was unable to do so and struck Wendy Hall's truck, severely injuring Jessica Hall.

The plaintiff brought an action against the defendant in two counts based on General Statutes § 13a-144. The first count alleged that the defendant's neglect and default in maintaining routes 6 and 25 was the cause of Jessica Hall's injuries. The second count alleged, in the alternative, that the defendant's neglect and default in maintaining routes 6 and 25 was the sole proximate cause of Jessica Hall's injuries. Specifically, the complaint alleged that the highway was in a defective and hazardous condition in that trees or brush, upon or near the traveled portion of said highway, were overgrown "or misplaced," thereby obstructing the view of drivers approaching the intersection. In addition to alleging the improper placement of a stop sign on this spur, the complaint went on to allege that the defendant failed to provide adequate warning devices to alert drivers traveling on routes 6 and 25 of the approaching intersection. On April 15, 1987, the defendant moved to strike the first count of the plaintiff's complaint for failure to plead that the defendant was "the sole proximate cause" of Jessica Hall's injuries. On July 20, 1987, the trial court, Sullivan, J., granted the defendant's motion to strike count one of the complaint.

The case proceeded to trial on the issue of liability and the jury returned a general verdict in favor of the defendant. The trial court denied the plaintiff's motion to set aside the verdict and the plaintiff appeals.

The plaintiff claims that the trial court committed a number of errors in its evidentiary rulings and instructions to the jury. Specifically, the plaintiff claims that the trial court erred in its evidentiary rulings concerning the: (1) exclusion of evidence of a prior accident; (2) exclusion of photographs of subsequent remedial measures; (3) exclusion of a photograph which "significantly" affected an eyewitness's credibility; and (4) permission given to defense counsel to comment on the lack of prior problems at this intersection during closing argument. In addition, the plaintiff claims that the trial court made the following errors in its instructions to the jury: (1) charging the jury that it may draw an adverse inference from the plaintiff's failure to call a witness; (2) charging the jury that it could consider the defendant's workload; (3) failing to charge on the defendant's subduty to investigate; (4) failing to charge on the defendant's duty to close the highway; and (5) charging the jury that the defendant's neglect and default must be the sole proximate cause of the plaintiff's injuries.

I

EVIDENTIARY RULINGS

First, the plaintiff contends that the trial court erred in excluding evidence of a prior accident that occurred at the same intersection of routes 6 and 25 and the spur from exit 9 of I-84. The prior accident, the plaintiff asserts, was substantially similar to the present accident and should have been admitted to prove the existence of a defect. The defendant, on the other hand, claims that the trial court properly rejected the evidence because there was insufficient It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983). Evidence of other similar accidents is admissible "to prove the existence of a particular physical condition, situation, or defect." C. McCormick, Evidence (3d Ed.) § 200; Zheutlin v. Sperry & Hutchinson Co., 149 Conn. 364, 179 A.2d 829 (1962); Facey v. Merkle, 146 Conn. 129, 136, 148 A.2d 261 (1959); Wilkins v. G. Fox & Co., Inc., 125 Conn. 738, 7 A.2d 434 (1939). A party attempting to offer evidence of prior accidents or "evidence of the experience of others" has the burden of proving "that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. Wray v. Fairfield Amusement Co., 126 Conn. 221, 226, 10 A.2d 600 [1940]; Wilkins v. G. Fox & Co., Inc., [supra, 125 Conn. at 739, 7 A.2d 434]; Shuchat v. Stratford, 125 Conn. 566, 571, 7 A.2d 387 [1939]...." Zheutlin v. Sperry & Hutchinson Co., supra, 149 Conn. at 366-67, 179 A.2d 829. "We cannot ignore completely that when a claim is made for the showing of prior accidents, an element of a trial on collateral issues, sometimes termed a trial within a trial, is introduced with a real possibility of undue delay." Kelsay v. Consolidated Rail Corporation, 749 F.2d 437, 443 (7th Cir.1984). Moreover, "[e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of 'substantial similarity of conditions' between the immediate and the prior happenings." Marois v. Paper Converting Machine Co., 539 A.2d 621, 625 (Me.1988). "The question whether the essential preliminaries have been established is for the court, and the court's decision will not be disturbed unless there is clear and manifest error." Zheutlin v. Sperry & Hutchinson Co., supra, 149 Conn. at 367, 179 A.2d 829.

                proof of similarities.   Specifically, the defendant maintains that there was no claim that the prior accident in any way resulted from a sight line obstruction caused by brush or vegetation as in the present case.   Moreover, the defendant asserts that the testimony offered regarding the specifics of the prior accident was based on hearsay from the police officer who conducted the investigation of the prior accident.   We find no error on this ruling
                

In an offer of proof, the plaintiff attempted to prove the similarity of the accidents through the testimony of Officer Michael Kehoe, who had investigated the prior accident. Kehoe testified that the prior accident occurred on the night of July 30, 1983, at approximately 9:45 p.m. Androcovich, while driving eastbound on the spur of exit 9 of I-84, attempted to take a left turn on routes 6 and 25 when he was struck by a car traveling southbound on routes 6 and 25. Kehoe testified that the road conditions at the time of the accident were clear and dry. Further, he testified that he issued a citation to Androcovich, the driver traveling eastbound on the spur attempting to take a left turn, for failure to yield a right-of-way after a stop. Significantly, on cross-examination, the officer testified that neither operator of the vehicles claimed that any brush or vegetation or sight line interference was a contributing factor to the accident.

In Facey v. Merkle, supra, this court stated that "in laying the foundation that the material conditions were substantially identical, two aspects are involved. One is that the [place] itself must have been substantially in the same condition. The other is that the use made of it must have been substantially identical in all material respects with the use which was actually involved in the case and was reasonably to be anticipated." Id., 146 Conn. at 136, 148 A.2d 261. The defendant does not contend that the intersection was...