Lamb v. Burns, 12730

• Citation: 202 Conn. 158,520 A.2d 190
• Decision Date: 27 January 1987
• Docket Number: No. 12730,12730
• Parties: Dorothy LAMB et al. v. J. William BURNS, Commissioner of Transportation.
• Court: Connecticut Supreme Court

Page 190

520 A.2d 190

202 Conn. 158

Dorothy LAMB et al. v. J. William BURNS, Commissioner of Transportation.

No. 12730.

Supreme Court of Connecticut.

Argued Nov. 5, 1986.

Decided Jan. 27, 1987.

Eugene A. Cooney, Hartford, for appellant (defendant).

William R. Moller, with whom were Wesley W. Horton, Hartford, and Mario Paul Mikolitch, Mystic, for appellees (plaintiffs).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CALLAHAN, JJ.

SHEA, Associate Justice.

This action was brought against the commissioner of transportation for the state of Connecticut pursuant to General Statutes § 13a-144 to recover for personal injuries sustained by the plaintiffs when the car in which they were riding passed over an ice patch, swerved out of control, and collided with a bridge abutment. Following a jury trial bifurcated on the issues of liability and damages, the court rendered judgment in accordance with verdicts in favor of the plaintiffs and awarding them a total of $342,500. This appeal concerns various issues relating to the trial court's (1) restrictions upon the defendant's voir dire examination of prospective jurors, and (2) jury instructions that negligence on the part of the state police could provide a basis upon which to find against the defendant. We find error with respect to the first issue only and remand for a new trial.

The following facts do not appear to be in dispute: On a Saturday afternoon, January 22, 1983, the plaintiff Dorothy Lamb was driving her car on Route 2A in Preston. Her three children, also plaintiffs, were passengers in the car. At approximately 4:15 p.m., the plaintiffs' car, after having rounded a curve in the road near the Brookside Inn, skidded across an ice patch and struck a guard post and a concrete bridge abutment. As a result of the accident, all of the plaintiffs were seriously injured.

At about 3 p.m. on the same day, Jean Webster had been driving past the Brookside Inn on Route 2A when her car slid across ice and barely missed careening into an embankment. A few minutes later she told her husband of this incident, which he immediately reported to the state police. Although the state police had "had a couple of complaints on that already," only then, at approximately 3:30 p.m., did they assign a state trooper, Gerald Luty, to investigate the road condition in the area of the Brookside Inn. Luty arrived at the inn within ten minutes, saw that "one or two ... vehicles as they came around the corner slid a little bit on the ice," and, considering the road condition to be hazardous, radioed the barracks requesting that a sand truck be sent. Luty next lit some warning flares rated to burn for thirty minutes and placed them in the highway fence posts and on the ground. Expecting that the sand truck would arrive before the flares had expired Luty left the scene to check another area. The accident involving the plaintiffs occurred before the sand truck arrived, but after the flares had expired.

After having received Luty's request that a sand truck be sent to the Brookside Inn, the desk officer at the state police barracks telephoned Llewellyn Palmer, a department of transportation (DOT) supervisor, at his home, in accordance with a procedure that had been established between the DOT and the state police. Because DOT offices are staffed only Monday through Friday from 8 a.m. to 3:30 p.m., the DOT distributes to state and local police a list of the home telephone numbers of DOT maintenance employees for use at other times. Palmer called Roland Gauthier, his crew leader, at about 3:45 p.m., assigning him the task of sanding along Route 2A "and other spots." Gauthier then called a coworker for assistance before driving approximately five miles to the DOT garage. At the garage, after having waited for his coworker for about ten minutes, Gauthier received a radio call directing him to go immediately to Route 2A from a DOT superintendent who had come upon the plaintiffs' accident.

I

The defendant attempted to ask the following questions during the voir dire examination of a prospective juror: (1) "If you knew nothing else about a case coming in here to be a juror except that the plaintiff was injured, now would you on that basis alone think that the jury ought to give that person some money?" and (2) "[I]f you met a person when you were walking down the street and that person exhibited some signs of injury or was disabled, would you feel feelings of sympathy for that person?" The court sustained the plaintiffs' objections to those questions because the former, it said, "infring[ed] on one of the areas that is not permitted, that is, the juror's knowledge of the law," and the latter "is irrelevant on the issue of prejudice." ¹ The defendant contends that the trial court thus erroneously thwarted the defendant's legitimate objective of determining which prospective jurors were most apt to be hindered in making factual assessments at trial by feelings of sympathy. We agree.

Section 19 of article first of the constitution of Connecticut, as amended by article IV, states in part: " 'The right of trial by jury shall remain inviolate.... In civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.' " See State v. Marsh, 168 Conn. 520, 521, 362 A.2d 523 (1975). Further, General Statutes § 51-240 provides in part: "(a) In any civil action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto." We have stated that although the trial court is vested with wide discretion in respect to the extent of the voir dire examination, the court should grant such latitude as is reasonably necessary to accomplish the purposes of the voir dire. " 'Clearly, therefore, if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice....' State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956)." State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985).

In this case, the issue of whether feelings of sympathy would influence the jury's determinations was particularly significant. The plaintiffs had suffered severe personal injuries that included bone fractures and disfiguring facial lacerations. Moreover, it was indicated to the jury that the three plaintiffs who are the adult children of the named plaintiff are mentally retarded and, consequently, are especially dependent upon her. The evidence further showed that, because he had recently suffered a stroke, the husband of the named plaintiff was also greatly dependent upon her, and that as a result of the accident her ability to assist him had substantially diminished. When a considerable potential exists for feelings of sympathy to have a bearing upon the outcome of a case, a query seeking to uncover the extent of a juror's susceptibility to such feelings should be permitted. ² It was of vital importance to the defendant that any such susceptibility be brought to light. "He was entitled to explore this area of possible disqualification prior to the impanelling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge." State v. Hill, 196 Conn. 667, 673, 495 A.2d 699 (1985).

The first question of the defendant precluded by the trial court upon the plaintiffs' objection was whether the juror, knowing only that the plaintiff had suffered an injury, would think that the jury ought to award damages. The court stated that it was sustaining the plaintiffs' objection because the question sought, in effect, to elicit the juror's knowledge of the law. It is true that a juror's knowledge or ignorance with respect to questions of law is not a proper subject of inquiry on voir dire. State v. Anthony, 172 Conn. 172, 176, 374 A.2d 156 (1976); State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973); Duffy v. Carroll, 137 Conn. 51, 56-57, 75 A.2d 33 (1950). " '[A]ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the venireman will be to certain issues of fact or law or, at least, to implant in his mind a prejudice or prejudgment on those issues. Such an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.' State v. Mendill, 141 Conn. 360, 362, 106 A.2d 178 [1954]." State v Clark, supra, 164 Conn. at 226, 319 A.2d 398.

The question posed in the present case, however, did not call for a statement by the prospective juror of what he thought the law was. The case of Duffy v. Carroll, supra, is instructive. In Duffy it was alleged that the defendant's car had struck the six year old plaintiff as a result of the defendant's negligent driving. The trial court had overruled the defendant's objections to the following question posed during the voir dire by the plaintiff's counsel: " 'Do you feel that a six year old boy is expected to use as much care and caution in crossing a street as an adult person twenty-one years of age?' " Id., 137 Conn. at 55, 75 A.2d 33. This court upheld the trial court's rulings, stating that rather than eliciting the veniremen's knowledge of the law, the questions "were designed to expose the jurors' ideas of what they in their own minds would expect by way of care from a young boy as contrasted with an adult. The questions were calculated to disclose what the natural mental reactions of the...