McGloin v. Town of Southington, 5355

• Decision Date: 23 August 1988
• Docket Number: No. 5355,5355
• Citation: 15 Conn.App. 668,546 A.2d 906
• Court: Connecticut Court of Appeals
• Parties: Phyllis McGLOIN et al. v. TOWN OF SOUTHINGTON.

Page 906

546 A.2d 906

15 Conn.App. 668

Phyllis McGLOIN et al. v. TOWN OF SOUTHINGTON.

No. 5355.

Appellate Court of Connecticut.

Argued May 17, 1988.

Decided Aug. 23, 1988.

Herbert Watstein, with whom, on the brief was Julius Watstein, Bristol, for appellants (plaintiffs).

John W. Lemega, with whom, on the brief, was Richard C. Tynan, Hartford, for appellee (defendant).

Before DALY, STOUGHTON and FOTI, JJ.

STOUGHTON, Judge.

The plaintiffs brought this action against the town of Southington alleging a breach of its statutory duty under General Statutes § 13a-149 ¹ in failing to sand Canal Street, a town road, following a winter storm. The plaintiffs appeal from the judgment rendered by the trial court on the jury's verdict for the defendant. The plaintiffs claim that the trial court erred in (1) refusing to charge the jury that it could draw an adverse inference from the failure of the defendant to produce certain witnesses, (2) failing to charge the jury that damage to the named plaintiff's car could not be considered in deciding whether she exercised due care, and (3) refusing to charge the jury that skidding is not negligence per se, and that the named plaintiff was not under a duty to stay at home on the day of the accident. We find no error.

From the testimony and the evidence adduced at trial, the jury could reasonably have found the following facts. On the evening of December 27, 1981, Southington experienced a snow and rain storm. The town responded to the storm by dispatching all of its sanding crews, but did not deem there to be sufficient snowfall to warrant plowing of roads. On December 28, the temperature was well above freezing and a light rain fell until 6 a.m. on December 29.

On December 29, 1981, at about 8 a.m., the named plaintiff, Phyllis McGloin, was driving her car in a northerly direction on Canal Street. Her husband was driving another vehicle approximately five car lengths ahead of her car. The husband testified that both cars were traveling at twenty miles per hour and that the roads were covered with ice. He lost sight of his wife's car when it was about 100 yards from the route 84 overpass. Somewhere in the last 100 yards, the named plaintiff lost control of her car and struck one of the concrete bridge abutments of route 84. She suffered personal injuries, and the repair of the damage to her car cost $3500. The named plaintiff had no recollection of the accident, and there were no eyewitnesses.

The plaintiffs' first claim is that the trial court erred in refusing to charge the jury that it could draw an adverse inference from the failure of the defendant to produce certain witnesses. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The plaintiffs' claim that Lawrence DellaVecchia, the defendant's employee who sanded the road, was a witness the defendant would naturally have produced. They also contend that Marvin Zelman, a psychiatrist who examined the named plaintiff on behalf of the defendant, was a witness whom the defendant would naturally have produced. Testimony was elicited during trial that DellaVecchia was still employed by the defendant at the time of the trial, and that Zelman was practicing psychiatry in Hartford.

We note initially that the plaintiffs' request to charge as to DellaVecchia was not made in compliance with Practice Book § 318. ² The request to charge did not state the proposition of law to be applied, nor did it state "the evidence to which the proposition would apply." Practice Book § 318; see Battista v. United Illuminating Co., 10 Conn.App. 486, 498, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987); see also State v. Robinson, 14 Conn.App. 40, 43-46, 539 A.2d 606 (1988). The record shows that DellaVecchia's name was merely penciled into the request to charge concerning Zelman. Such noncompliance with our rules of practice alone permits the trial court to refuse to give the requested charge. Shelnitz v. Greenberg, 200 Conn. 58, 72, 509 A.2d 1023 (1986); Battista v. United Illuminating Co., supra, 10 Conn.App. at 499, 523 A.2d 1356. Beyond that, however, the plaintiffs failed to show that they were entitled to a Secondino charge.

" ' "If a party fails to call a witness, then the Secondino rule permits the jury to draw an inference that the witness's testimony would have been unfavorable to the party's cause if the jury first finds that: (1) the witness was available; and (2) the witness was one the party would naturally produce. Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963 [1975]; Raia v. Topehius, 165 Conn. 231, 237, 332 A.2d 93 [1973]; Secondino v. New Haven Gas Co., [supra, 147 Conn. at 675, 165 A.2d 598]. To charge the jury on the rule, the party claiming the benefit of the rule must show that he is entitled to it. State v. Brown, 169 Conn. 692, 704, 364 A.2d 186 [1975]; Raia v. Topehius, supra; Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 [1972]." Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190 (1976).' Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979)." Grabowski v. Fruehauf Trailer Corporation, 2 Conn.App. 167, 170, 477 A.2d 685 (1984).

The plaintiffs contend that under Nichols v. Coppola Motors, Inc., supra, 178 Conn. at 342, 422 A.2d 260, the availability requirement may be shown "from the relationship, usefulness, or nature of the expected testimony...." Our Supreme Court, however, has subsequently made it clear that proof of the existence of a relationship alone will not satisfy the plaintiff's burden of showing availability. It must be shown that the party was able to procure the witness' physical presence in court. Shelnitz v. Greenberg, supra, 200 Conn. at 74-75, 509 A.2d 1023; Omar v. Mezvinsky, 13 Conn.App. 533, 537, 537 A.2d 1039 (1988).

The mere fact that DellaVecchia was in the defendant's employ does not require a determination that he was available for trial. There must be more. In State v. Hudson, 14 Conn.App. 463, 541 A.2d 534 (1988), where we upheld the trial court's delivery of a Secondino charge concerning an alibi witness, the state produced not only evidence that the missing witness was the defendant's brother, but also that he currently lived in New Haven and had been seen there only three weeks before trial. Id., 469 n. 2, 541 A.2d 534. We concluded that this was sufficient evidence to support a finding by the jury that the witness was available. Id., 469, 541 A.2d 534. In the present case, however, the plaintiffs did not produce any evidence concerning DellaVecchia's whereabouts either before or during trial. We therefore uphold the trial court's determination that the evidence produced was insufficient to justify giving the Secondino charge to the jury.

Moreover, the only evidence DellaVecchia could offer concerned the condition of Canal Street two days before the accident. In the time between the storm and the accident, it rained and the temperature rose above freezing. Because it was not shown that DellaVecchia could testify as to the condition of Canal Street on December 29, he was not necessarily a witness the defendant would naturally have produced. The plaintiffs were not entitled to a Secondino charge regarding DellaVecchia.

The plaintiffs also failed to produce evidence to show that Zelman was available within the meaning of Secondino. Again, a mere statement by another witness that Zelman was practicing psychiatry in Hartford does not constitute a showing of present availability; ³ see Shelnitz v Greenberg, supra, 200 Conn. at 76, 509 A.2d 1023; Omar v. Mezvinsky, supra.

The plaintiffs' second claim is that the trial court erred in allowing the jury to consider the amount of the damage to the named plaintiff's automobile in deciding whether she had been in the exercise of due care at the time of the accident. ⁴ The trial court correctly charged that in order to recover under General Statutes § 13a-149, the named plaintiff was required to prove, among other things, that the defect in the highway was the sole proximate cause of her injuries. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981); Janow v. Ansonia, 11 Conn.App. 1, 3, 525 A.2d 966 (1987). In other words, the named plaintiff had to prove she was not contributorily negligent. There is no presumption under General Statutes § 13a-149 that the named plaintiff was exercising due care at the time of the injury. ⁵ Janow v. Ansonia, supra, 4, 525 A.2d 966, citing Jacen v. East Hartford, 133 Conn. 243, 246, 50 A.2d 61 (1946), and Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531 (1935).

Whether the plaintiff was in the exercise of due care may be shown by circumstantial evidence when there is no direct evidence of the incident in question. Burke v. West Hartford, 147 Conn. 149, 152, 157 A.2d 757 (1960). The amount or type of physical damage that a car sustains in an accident is one of the factors a jury may consider in deciding whether or not due care was being exercised at the time of the accident. Notarino v. Powers, 6 Conn.App. 300, 505 A.2d 17 (1986); Meyer v. Barnes, 2 Conn.App. 485, 488, 479 A.2d 1236 (1984). " 'When the circumstances point as strongly to the absence as to the existence of due care, or point in neither direction, there is no basis for a finding of due care.' Burke v. West Hartford, [supra], [147 Conn. at] 152 ." Roy v. Michaud, 5 Conn.App. 695, 700, 501 A.2d 1231 (1985), cert. denied, 198 Conn. 806, 504 A.2d 1060 (1986).

Under the circumstances of this case, the jury could infer from the physical damage that the car sustained, that the named plaintiff was traveling at an unreasonable speed given the conditions, and thus, was not exercising due care. Meyer v. Barnes, supra; see also Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). We will not disturb a verdict if, from the evidence presented, the jury could reasonably have reached the conclusion it did. Patrick v. Burns, 5 Conn.App. 663, 666, 502 A.2d...