Isaac v. Truck Service, Inc.

• Decision Date: 06 April 1999
• Docket Number: (AC 17072)
• Court: Connecticut Court of Appeals
• Parties: MARY G. ISAAC v. TRUCK SERVICE, INC., ET AL.

52 Conn. App. 545

727 A.2d 755

MARY G. ISAAC v. TRUCK SERVICE, INC., ET AL.

(AC 17072)

Appellate Court of Connecticut.

Argued December 7, 1998.

Officially released April 6, 1999.

Lavery, Schaller and Spear, Js.

John T. Scully, for the appellant (plaintiff).

James V. Somers, with whom on the brief, was Kathleen A. St. Onge, for the appellees (defendants).

Opinion

LAVERY, J.

The plaintiff, Mary G. Isaac, appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the defendants, Truck Service, Inc. (Truck Service), and Mary Ann West. On appeal, the plaintiff claims that the trial court abused its discretion by (1) permitting the defendants to amend their answer to the complaint during closing argument, (2) failing to read or otherwise inform the jury of all of the allegations of negligence contained in the plaintiffs complaint, (3) failing to read or otherwise inform the jury of the allegations of negligence contained in the defendants' special defense concerning comparative negligence and (4) improperly charging the jury concerning the plaintiffs duty to mitigate damages. The defendants claim, as an alternative ground for affirming the judgment, that the plaintiffs action against them was barred by the doctrine of res judicata. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. By summons and complaint dated September 28, 1993, the plaintiff commenced an action against the defendants alleging that she had sustained personal injuries as the result of a motor vehicle accident that occurred on Interstate 91 in Windsor on February 25, 1992. The complaint alleges that West, an employee of Truck Service, was operating a truck owned by Truck Service that swerved into the lane of traffic in which the plaintiff was traveling, striking the plaintiff's vehicle and causing her personal injuries. The complaint also alleges that the accident was due to the carelessness and negligence of West in that she operated the truck in breach of one or more common law or statutory duties of care she owed the plaintiff.

In response to the complaint, the defendants left the plaintiff to her proof that she was involved in a motor vehicle accident as alleged in paragraph one,¹ admitted that West was operating the truck involved in the accident as an agent for and with the consent of Truck Service as alleged in paragraph two² and denied that the accident and the plaintiffs alleged injuries were due to West's breach of any duty of care owed to the plaintiff. The defendants alleged two special defenses The first alleged that the plaintiffs claim was barred by the doctrine of res judicata because the plaintiff had previously obtained a judgment against the defendants;³ the second alleged that the accident was due to the plaintiffs comparative negligence based on her breach of one or more common law duties of care. The plaintiff denied both special defenses.

In November, 1996, a jury rendered a verdict for the defendants. The plaintiff moved to set aside the verdict, and the trial court denied the motion. This appeal followed. Additional facts will be recited as necessary.

I

The plaintiffs first claim is that the trial court abused its discretion by permitting the defendants to amend their answer to paragraph two of the complaint during closing arguments.⁴ We agree.

"Whether to grant a request to amend the pleadings is a matter within the discretion of the trial court, and this court will rarely overturn the decision of the trial court.... Judicial discretion ... is always legal discretion, exercised according to the recognized principles of equity.... While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done." (Citations omitted; internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, 239 Conn. 515, 521, 686 A.2d 481 (1996).

"`Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.' [Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968)]; see Moore v. Sergi, 38 Conn. App. 829, 835-37, 664 A.2d 795 (1995). `Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.' ... Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995)." Constantine v. Schneider, 49 Conn. App. 378, 389, 715 A.2d 772 (1998). "The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial. Moore v. Sergi, supra, 836, quoting Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956)." (Internal quotation marks omitted.) Constantine v. Schneider, supra, 390.

In this case, the defendants admitted in their response to paragraph two of the plaintiffs complaint that West was driving the truck involved in the accident with the plaintiff. As a result of the defendants' admission that West was operating the truck, the plaintiff conducted no discovery other than filing standard court-approved interrogatories and requests for production.⁵ In answer to one interrogatory, the defendants responded that West, her husband Norris West and the plaintiff were the "persons ... who were present at the time of the incident alleged in the complaint or who observed or witnessed all or part of the incident." Notably, the plaintiff did not depose West and attended the deposition of the plaintiffs passenger, Jennie Kendrick, unaware that the defendants would amend their answer to paragraph two of the complaint. Furthermore, the plaintiffs trial strategy was predicated on the defendants' having admitted that West was operating the truck involved in the accident because the answer constituted a judicial admission. Specifically, the plaintiff did not offer other evidence to prove who was driving the truck.⁶

At trial, during the defendants' case, West testified that she did not have any specific recollection of the accident and that her recollection was based on what she had been told about the accident. Evidence concluded on a Friday. On the following Monday, the trial court heard argument on the defendants' motion for a directed verdict based on the special defense of res judicata and held a charging conference. The next day, during the plaintiffs closing argument, the defendants moved to amend their answer to conform to West's testimony at trial. The trial court granted the motion, stating that the admission was an oversight on the part of the defendants. Finally, after the jury was dismissed, the trial court met with the jurors and later reported to both counsel that at least one juror informed the court that he had concluded that the plaintiff failed to prove that West was operating the truck involved in the accident.

"An admission in a defendant's answer to an allegation in a complaint is binding as a judicial admission. Franchi v. Farmholme, Inc., 191 Conn. 201, 214, 464 A.2d 35 (1983); Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976); Bridgeport v. Stratford, 142 Conn. 634, 646, 116 A.2d 508 (1955)." United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 753, 603 A.2d 1190 (1992). "`The admission of the truth of an allegation in a pleading is a judicial admission conclusive on the pleader.' Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); see also West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); Argentinis v. Gould, 23 Conn. App. 9, 18, 579 A.2d 1078 (1990), rev'd in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991)." Cross v. Hudon, 42 Conn. App. 59, 65, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996). "A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it." Drew v. K-Mart Corp., 37 Conn. App. 239, 250, 655 A.2d 806 (1995). "Upon the amendment of the original answer, the superseded pleading ceases to be a conclusive judicial admission and becomes nothing more than an evidentiary admission to be weighed and considered by the trial court along with the rest of the evidence." Crowell v. Danforth, 222 Conn. 150, 155, 609 A.2d 654 (1992).

In view of the facts of this case, we conclude that the trial court's granting of the defendants' motion to amend their answer to paragraph two of the complaint worked an injustice on the plaintiff. Paragraph two clearly alleges that "West was operating the truck involved in this accident," and the defendants admitted that allegation in their answer filed in November, 1993, three years prior to the trial of this matter. According to our case law, the defendants' answer constituted a judicial admission and the plaintiff was entitled to rely on that admission and not produce evidence at trial as to the driver of the truck involved in the accident. The trial court's granting of the defendants' motion to amend after the plaintiff had completed part of her closing argument was unfair and an abuse of discretion.

Furthermore, the defendants' motion to amend was the product of their own negligence. Through their investigation of the subject accident and counsel's conversations with West in preparation for trial, the defendants should have known the substance of West's trial testimony well before she gave it.

The defendants also argue that the plaintiff should have moved to open evidence or for a continuance and that her failure to do so did not preserve her claim for appellate review. We disagree. The plaintiff was not required to move for a continuance. See Smith v. New Haven, supra, 144 Conn. 133. The defendants'...