Lemonious v. Burns

• Decision Date: 09 June 1992
• Docket Number: No. 10763,10763
• Citation: 27 Conn.App. 734,609 A.2d 254
• Court: Connecticut Court of Appeals
• Parties: Clarette LEMONIOUS v. J. William BURNS, Commissioner of Transportation, et al.

Page 254

609 A.2d 254

27 Conn.App. 734

Clarette LEMONIOUS v. J. William BURNS, Commissioner of Transportation, et al.

No. 10763.

Appellate Court of Connecticut.

Argued March 26, 1992.

Decided June 9, 1992.

Louis B. Blumenfeld, with whom was Lorinda S. Coon, Hartford, for appellant (named defendant).

Allisan Lee Adams, Waterbury, for appellee (plaintiff).

Before NORCOTT, LAVERY and LANDAU, JJ.

NORCOTT, Justice.

The defendant J. William Burns, commissioner of transportation (commissioner), appeals from the judgment of the trial court, rendered after a jury trial, awarding $85,000 in damages to the plaintiff for injuries she sustained as a result of the commissioner's violation of General Statutes § 13a-144, ¹ one of this state's highway defect statutes. The commissioner claims (1) that the jury could not have reasonably and logically inferred from the evidence presented at trial that the road where the plaintiff fell was not closed pursuant to General Statutes § 13a-145, and (2) that the trial court's jury instruction was inadequate. We affirm the trial court's judgment.

After the verdict, the commissioner moved to set it aside as contrary to the evidence. The court then granted the motion and rendered judgment for the commissioner. The plaintiff appealed to this court. We subsequently reversed the trial court's decision and remanded the case for further consideration. See Lemonious v. Burns, 23 Conn.App. 735, 583 A.2d 1328 (1991). The trial court then denied the commissioner's motion to set aside the verdict and rendered judgment for the plaintiff on the jury's verdict. This appeal followed.

Because the facts of this case are fully set forth in our earlier decision, a brief synopsis here will suffice. On August 20, 1984, the plaintiff was on her way to a bus stop when she fell in a hole located in a public highway, where construction work was being performed under the aegis of the commissioner. The plaintiff suffered serious injuries and brought suit against the commissioner, alleging that her injuries resulted from his breach of the statutory duty under § 13a-144 with regard to maintenance of public highways. Testimony at trial disclosed that the construction foreman's daily report should have indicated whether special safety precautions were taken to prevent such incidents. The contractor's records, however, did not indicate whether such precautions were taken just prior to the plaintiff's fall.

The commissioner first claims that the jury could not have reasonably and logically reached any other conclusion but that the road where the plaintiff fell was legally closed, pursuant to General Statutes § 13a-145, at the time of the incident in question. We disagree.

The following additional facts are necessary to the resolution of this claim. General Statutes § 13a-145 provides in part that a person using any state highway that has been designated as closed pursuant to General Statutes § 13a-115 "shall do so at his own risk except with respect to any injury or loss not traceable to a defect caused in the process of construction, reconstruction or repair." General Statutes § 13a-115(a) provides in part that the commissioner may close a section of a state highway "by posting notices at each end of such section of highway...."

The commissioner argues that the testimony at trial established conclusively that such notices had been posted prior to the plaintiff's fall. Both Neal Robison, owner of the construction company, and Stephen Zentara, the state inspector for the project, testified that signs had been placed at each end of the construction area prior to the plaintiff's fall and that they were in place at the time she fell. The plaintiff testified, however, that she did not pass any such sign en route to the bus stop. A witness to the incident, Lillian Harrison, also testified that she did not see signs posted, although she acknowledged that they could have been in place.

It is well established that the credibility of witnesses and the weight to be accorded their testimony is a matter wholly within the province of the jury. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992). Here, the jury chose to believe the plaintiff and Harrison as opposed to the commissioner's witnesses. The plaintiff and Harrison were on the scene at the time of the incident; the commissioner's witnesses were not. Further, the commissioner presented no documentary or other evidence in support of his claim that the signs were posted.

Although the commissioner argues forcefully that the testimony of the plaintiff's witnesses did not contradict that of Robison and Zentara, this is unavailing because the jury may nevertheless have found the commissioner's witnesses to be lacking in credibility. Further, the commissioner argues that during Robison's testimony, a photograph of a sign was admitted into evidence, establishing that notice was posted at the time of the plaintiff's fall. The commissioner relies on the trial court's brief remark to the jury in admitting the photograph that "it's a photo of a sign at the site."

A review of the record, however, clearly shows that at no time did Robison testify that the photograph in question depicted a sign that was posted at the site the day the plaintiff fell. The record also shows that the photograph was admitted only to show the type of sign that would have been posted there, and that the court never changed that ruling. ² Contrary to the commissioner's assertions on appeal, the record of his closing argument to the jury shows that this was his understanding as well. ³ Whether the sign was posted is a matter of fact involving a question of truth to be decided on conflicting evidence. See Sweet v. Sweet, 190 Conn. 657, 663, 462 A.2d 1031 (1983). Here, the jury apparently chose to believe the plaintiff's witnesses as opposed to those of the commissioner. Our review of the record leads us to conclude that the jury could have reasonably and logically inferred from the evidence presented that the road was not legally closed at the time the plaintiff fell.

The commissioner next claims the trial court failed to charge the jury adequately with respect to the road closure statutes, General Statutes §§ 13a-115 and 13a-145. Specifically, the commissioner claims that the court's instruction was inadequate because it contained no explanation of the statutes and did not relate them to the evidence. We disagree.

A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988). The charge is to be read as a whole, with the instructions claimed to be improper read in that context. Carfora v. Globe, Inc., 5 Conn.App. 526, 530, 500 A.2d 958 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). A reviewing court does not critically dissect the charge to discover possible inaccuracies. Ellice v. INA Life Ins. Co. of New York, supra. The test to determine if a jury charge is proper is whether " 'it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.' " Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992), quoting Preston v. Keith, 217 Conn....