Menon v. Dux

• Citation: 838 A.2d 1038,81 Conn. App. 167
• Decision Date: 20 January 2004
• Docket Number: (AC 23563).
• Court: Appellate Court of Connecticut
• Parties: HEMA MENON v. ANN DUX

81 Conn. App. 167

838 A.2d 1038

HEMA MENON v. ANN DUX

(AC 23563).

Appellate Court of Connecticut.

Argued October 22, 2003.

Officially released January 20, 2004.

Schaller, McLachlan and Berdon, Js.

John R. Williams, for the appellant (plaintiff).

Kieran S. Cassidy, for the appellee (defendant).

Opinion

McLACHLAN, J.

This appeal arises out of a negligence action brought by the plaintiff, Hema Menon, for the alleged liability of the defendant, Ann Dux, in causing an automobile collision. The plaintiff challenges both the trial court's judgment in favor of the defendant, rendered after a jury verdict, and the court's subsequent denial of her motion to set aside the verdict. On appeal, the plaintiff claims that the court improperly (1) excluded certain testimony relating to the cost of repairing the damage to her vehicle as a result of the collision, (2) instructed the jury concerning its discretion in determining the verdict and (3) denied her motion to set aside the verdict. We affirm the judgment of the trial court.

Following jury selection, the court bifurcated the trial into two phases, liability and damages. During their testimony in the liability phase, the plaintiff and defendant provided conflicting versions of the events leading to the accident, essentially offering competing accounts of the directions in which the vehicles were traveling and the manner in which the collision occurred. Officer Lawrence Frinton of the Danbury police department, who investigated the accident scene, also testified. In his original accident report, Frinton provided a diagram of the accident based on his conversations with the plaintiff and the defendant immediately following the accident, and on his observations of the scene. This diagram was consistent with the version of events advanced by the defendant. Frinton's report also contained a narrative, however, which contained certain statements that contradicted the diagram and, in fact, supported the plaintiff's version of events. Frinton later filed a narrative supplement to the accident report in which he indicated that in his original report, he mistakenly described the position and directional movement of the defendant's vehicle. He clarified that this description was in error and that in his opinion, the collision had occurred in the manner described by the defendant.¹

Following the conclusion of evidence in the liability phase, the jury returned a verdict in favor of the defendant. The plaintiff subsequently filed a motion to set aside the verdict, pursuant to Practice Book § 16-35, on the ground, inter alia, that the verdict was contrary to the evidence. The motion was denied, and judgment was rendered in favor of the defendant. The plaintiff now appeals.

I

The plaintiff first claims that the court improperly excluded evidence concerning the cost of repairing the damage to her vehicle as a result of the collision. The court excluded that evidence on the ground that although it would be appropriate in the damages phase of the trial, it was irrelevant to the liability phase. The plaintiff asserts for the first time on appeal that this testimony should have been permitted as circumstantial evidence showing that at the time of the collision, the defendant's vehicle was traveling at a high rate of speed. We decline to review the claim.

The record reveals that on redirect examination, the plaintiff's counsel questioned the plaintiff about the damage to her vehicle. After the plaintiff explained the nature of the damage, counsel inquired as to the cost of repairing such damage. The defendant's counsel objected to that question on relevancy grounds and, in sustaining the objection, the court reasoned that because the testimony was relevant only to the issue of damages, it should be postponed until the damages phase of the trial. In response to the court's determination, the plaintiff's counsel articulated no rationale for permitting the testimony or any objection to the court's ruling and, quite to the contrary, expressly acquiesced to the ruling.²

The plaintiff now asserts that the testimony should have been permitted because the extent of damage to her vehicle comprised circumstantial evidence of the speed at which the defendant's vehicle was traveling at the time of the collision. The plaintiff now maintains that because such testimony would have supported her argument that the defendant was speeding prior to the collision, the testimony was relevant to the issue of liability and, therefore, should have been permitted. It is well established that "[t]his court will not review issues of law that are raised for the first time on appeal.... We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim." (Internal quotation marks omitted.) Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003).

Although the plaintiff attempted to introduce testimony of the extent of the damage to her vehicle, she did not articulate any evidentiary rule on which such testimony was admissible. For this court now to consider her claim on the basis of a specific legal ground not raised during trial would "amount to trial by ambuscade, unfair both to the trial court and to the opposing party." (Internal quotation marks omitted.) State v. Westberry, 68 Conn. App. 622, 628 n.3, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). Accordingly, we will not afford review to that unpreserved claim.³

II

The plaintiff next claims that the court improperly instructed the jury concerning its discretion in determining a verdict. Specifically, the plaintiff claims that the court's charge conveyed to the jury that it had unbridled discretion to disregard the law in reaching a verdict. The plaintiff concedes that she did not take exception to the jury charge at trial, and our review of the record reveals that she did not submit a written request to charge. Accordingly, the plaintiff's claim was not preserved for appellate review. See Practice Book § 16-20; Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002).⁴ Nevertheless, a party may prevail on an unpreserved claim under the plain error doctrine if such review is affirmatively requested. See Practice Book § 60-5; State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002).⁵ As the plaintiff has requested plain error review, we must consider whether such review is warranted.

As we often have stated, "[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.... Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial." (Citation omitted; internal quotation marks omitted.) State v. Thompson, 71 Conn. App. 8, 12 n.4, 799 A.2d 1126 (2002).

The plaintiff has failed to demonstrate that the court's instruction was so obviously erroneous that it affected the fairness and integrity of and public confidence in the judicial proceedings or that failure to grant the requested relief will result in manifest injustice.⁶ See id. We accordingly conclude that plain error review is unwarranted.

III

The plaintiff last claims that the court improperly denied her motion to set aside the jury's verdict. Specifically, the plaintiff claims that the evidence adduced at trial demonstrated that the collision could not have occurred in the manner alleged by the defendant and subsequently accepted by the jury. We disagree.

"[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial ... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of...