Martins v. Connecticut Light and Power Co.

• Decision Date: 14 September 1994
• Docket Number: No. 12165,12165
• Citation: 645 A.2d 557,35 Conn.App. 212
• Court: Connecticut Court of Appeals
• Parties: Teresa MARTINS, Conservatrix (Estate of Carlos Martins), et al. v. CONNECTICUT LIGHT AND POWER COMPANY.

Page 557

645 A.2d 557

35 Conn.App. 212

Teresa MARTINS, Conservatrix (Estate of Carlos Martins), et al. v. CONNECTICUT LIGHT AND POWER COMPANY.

No. 12165.

Appellate Court of Connecticut.

Argued Jan. 11, 1994.

Decided June 14, 1994.

Certification Denied Sept. 14, 1994.

Carey B. Reilly, with whom, on the brief, was Richard A. Fuchs, Bridgeport, for appellant (plaintiff).

Maureen Danehy Cox, with whom, on the brief, were James K. Robertson, Jr., and Giovanna M. Tiberii, Waterbury, for appellee (defendant).

Before DUPONT, C.J., and FOTI, LAVERY, LANDAU, FREDERICK A. FREEDMAN, SCHALLER and SPEAR, JJ.

DUPONT, Chief Judge.

The plaintiff is appealing from the judgment for the defendant, the Connecticut Light and Power Company (CL & P), ¹ in a negligence action, rendered in accordance with a jury verdict. She claims that a new trial must be ordered because the trial court improperly (1) excluded evidence of allegedly similar prior accidents, and (2) allowed the defendant to challenge peremptorily a prospective juror on the basis of gender. Because we conclude that the plaintiff must be awarded a new trial, we also consider the defendant's claim that the trial court improperly failed to admit into evidence the plaintiff's requests for admissions and the defendant's admissions thereof. ² Practice Book § 4013(a)(1)(B).

The plaintiff, Teresa Martins, brought suit individually ³ and as conservatrix for the estate of her husband, Carlos Martins, alleging that he had sustained severe injuries as a result of the negligence of the defendant. On September 22, 1983, Martins received an electric shock when, in the course of his employment as a laborer for the Guerrera Construction Company, the hydraulic hose of an excavator came into contact with the defendant's uninsulated overhead wires in Stamford. At the time, Martins was working on a sewer construction project, and the excavator was being used to suspend a plate to be placed over a hole in the road. Martins was guiding the plate into position when the excavator struck the overhead wires.

I

The plaintiff claims that the trial court improperly excluded evidence of prior accidents involving the defendant's uninsulated overhead wires. The plaintiff sought to introduce evidence of nine fatal accidents occurring between 1960 and 1981 that involved contact of a crane or boom-type equipment with the defendant's overhead wires and the accident reports of those accidents prepared by the department of public utilities. All of the reports were in the records of the defendant. The reports were marked as exhibits for identification only and an offer of proof was made through an expert. The expert testified that statistics are kept as to those contacts between boom-type vehicles and high voltage power lines that cause injury, that two of the accidents involved sewer construction projects, and that one of those two occurred in Stamford. The expert also testified that the conditions of all of the accidents were substantially similar to that of Martins' accident and that the fatal accident involving Michael McInerney in May of 1979 was most similar. The McInerney accident occurred four years before the Martins accident in the same city during a sewer project. Both accidents occurred when power equipment being used to lift a plate to be placed in the road struck the defendant's overhead power lines. Both injured workers were guiding the plates into place when the contacts occurred. The McInerney report concluded that the fatality was not caused by the defendant's equipment but was caused by the accidental contact between the boom of a power shovel and the defendant's overhead wires.

The plaintiff claimed that the evidence was relevant to show that the defendant knew or should have known of the dangers of its wires, and should have reasonably anticipated that harm would likely result from its act or failure to act. The plaintiff did not offer the evidence to prove the existence of a particular physical condition or defect. The plaintiff's complaint alleged that Martins' injuries were caused by the negligence of the defendant in that the defendant "failed to prevent the injury ... from occurring by moving, de-energizing or insulating the wires when it knew or should have known that substantially similar accidents had previously occurred [and] failed to analyze properly the data available to it concerning previous accidents, so as to avoid this accident...." The plaintiff argues that the evidence relates to foreseeability and notice and should have been admitted.

The trial court excluded the evidence on several grounds. The court found that the plaintiff failed to demonstrate that any of the prior accidents were sufficiently similar to the accident in the present case. The trial court also stated that because the defendant had admitted that its electrical facilities had the potential to cause serious injuries, the evidence of prior accidents had marginally probative significance. The court concluded that the prejudicial effect of the evidence outweighed its probative value, and that the introduction of the evidence would serve only to lengthen and complicate the trial.

Evidence of prior accidents "is admissible to prove the existence of a particular physical condition, situation, or defect"; Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Colucci v. PJR's, Inc., 31 Conn.App. 757, 760, 626 A.2d 1326 (1993); or to prove notice of a dangerous character. Sacks v. Connecticut Co., 109 Conn. 221, 238-39, 146 A. 494 (1929); Aaronson v. New Haven, 94 Conn. 690, 693, 110 A. 872 (1920); see also Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985). Such evidence is admissible to show that the defendant knew or should have known of the hazards created by a particular condition or danger. Sacks v. Connecticut Co., supra, at 238-39, 146 A. 494; Aaronson v. New Haven, supra, at 693, 110 A. 872; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 8.9.3; annot., Modern Status of Rules as to Admissibility of Evidence of Prior Accidents or Injuries at Same Place, 21 A.L.R.4th 472 (1983).

A plaintiff attempting to introduce evidence of prior accidents must show that the circumstances of the other accidents were substantially similar to those under which the plaintiff was injured. Hall v. Burns, supra, 213 Conn. at 452, 569 A.2d 10; Colucci v. PJR's, Inc., supra, 31 Conn.App. at 760, 626 A.2d 1326. The requirement of a substantially similar condition is lessened when the evidence is offered to show notice of a dangerous condition. In such a case, the prior accidents need "only be such as [would] call defendant's attention to the dangerous situation that resulted in the litigated accident." C. McCormick, Evidence (4th Ed.1992) c. 18, § 200, p. 849; see also annot., 21 A.L.R.4th 472 (1983).

Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff. Chouinard v. Marjani, 21 Conn.App. 572, 575, 575 A.2d 238 (1990). A trial court has broad discretion in ruling on the admissibility of evidence, and we will not disturb such a decision absent an abuse of discretion. Id. Nevertheless, "[t]he exercise of discretion to omit evidence in a civil case should be viewed more critically than the exercise of discretion to include evidence. It is usually possible through instructions or admonitions to the jury to cure any damage due to inclusion of evidence, whereas it is impossible to cure any damage due to the exclusion of evidence." Larensen v. Karp, 1 Conn.App. 228, 237, 470 A.2d 715 (1984) (Dupont, J., dissenting); see also Batick v. Seymour, 186 Conn. 632, 637, 443 A.2d 471 (1982) (suggesting that the standard for admitting evidence that is challenged as prejudicial should be lower in a civil case than in a criminal case); C. Tait & J. LaPlante, supra, § 8.1.3. "To be excluded the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted." Chouinard v. Marjani, supra, at 576, 575 A.2d 238; see also Richmond v. Longo, 27Conn.App. 30, 39, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).

In this case, the plaintiff alleged that the defendant was negligent for a number of reasons. One was the failure to prevent injury when it knew that substantially similar accidents had occurred. Another was the failure to analyze the data available to it concerning previous accidents in order to prevent the plaintiff's injury. The evidence of the nine prior accidents was relevant, therefore, to prove the defendant's knowledge of the dangerous condition, to prove that the defendant failed to analyze data available to it in order to prevent the plaintiff's injury, and to prove that the defendant should have anticipated that harm would likely result from the condition. Although all nine prior accidents were relevant does not mean that evidence as to all of them should have been admitted.

The evidence of one of the nine accidents was relevant and also substantially similar to the accident here, as the expert witness testified during the offer of proof. We conclude, on the basis of the facts as previously stated, that the circumstances of the 1979 accident and the litigated accident were essentially the same. Although the 1979 accident occurred four years before the litigated accident, that fact goes to the weight of the evidence rather than to its admissibility. See annot., 21 A.L.R.4th 472 (1983). Substantially similar does not mean exactly similar, and the extent to which the conditions may vary does not prevent admissibility. See State v. Dontigney, 215 Conn. 646, 649-51, 577 A.2d 1032 (1990); annot., 21 A.L.R.4th 472 (1983).

We also conclude that the evidence of the 1979 accident was highly probative. In order for a plaintiff to maintain a cause of action in negligence, the plaintiff must show the existence of a duty of care. Calderwood...