Mezes v. Mead
| Decision Date | 07 April 1998 |
| Docket Number | No. 15895,15895 |
| Citation | 48 Conn.App. 323,709 A.2d 597 |
| Parties | Sharon MEZES v. Edward MEAD et al. |
| Court | Connecticut Court of Appeals |
Christina L. Sippel, Westport, with whom, on the brief, was Bruce J. Corrigan, for appellant (plaintiff).
Michael T. McCormack, West Hartford, with whom, on the brief, were Linda Gray MacDonald and John R. Lilliendahl III, Hartford, for appellees (defendants).
John R. Mitola, Southport, for appellee (intervening plaintiff).
Before FOTI, SCHALLER and SULLIVAN, JJ.
The plaintiff, Sharon Mezes, appeals from the judgment rendered following a jury verdict in favor of the defendants, Edward Mead and Lend Lease Cars, Inc. In her complaint, the plaintiff sought to recover damages for personal injuries that were allegedly caused by the defendants' negligence and sustained during the course of the plaintiff's employment. The plaintiff's employer, Perkin-Elmer Corporation (Perkin-Elmer), filed an intervening complaint to recover payments made under the Workers' Compensation Act. The defendants filed a counterclaim against Perkin-Elmer seeking indemnification in the event that the plaintiff prevailed on her claim. Following the jury's verdict in favor of the defendants, the trial court rendered judgment in favor of Perkin-Elmer on the defendants' counterclaim. The defendants claim that the trial court improperly rendered judgment in favor of Perkin-Elmer on their counterclaim. For purposes of this appeal, we will treat the defendants' claim as a request for review of an adverse ruling of the trial court pursuant to Practice Book § 4013(a)(1)(B), now Practice Book (1998 Rev.) § 63-4(a)(1)(B). 1
On appeal, the plaintiff claims that the trial court improperly (1) denied her motion to set aside the verdict as it was against the weight of the evidence, (2) denied her motion to set aside the verdict or, in the alternative, to declare a mistrial as a result of defense counsel's reference during closing argument to a document not in evidence, (3) permitted defense counsel to elicit a lay opinion from a witness while denying the plaintiff's counsel the opportunity to elicit a lay opinion from another witness on the same subject, (4) refused to allow the plaintiff to call a rebuttal witness who had been excluded from testifying during the plaintiff's case-in-chief, (5) refused to allow the plaintiff to call a witness due to the plaintiff's late disclosure, (6) allowed the defendants' expert witness to testify as to matters that exceeded the scope of his disclosed expert opinions, (7) commented, during its charge to the jury, on the testimony of the defendants' liability expert to the exclusion of the testimony of the plaintiff's medical experts and the "relevant testimony" of a defense witness, (8) denied the plaintiff's request for leave to amend her complaint filed during the course of the trial, and (9) denied Perkin-Elmer's pretrial motion for summary judgment thereby precluding the plaintiff from requesting a jury charge on the doctrine of res ipsa loquitur. We disagree and therefore affirm the judgment of the trial court.
The following facts and procedural history are relevant to this appeal. On August 23, 1989, the plaintiff, an employee of Perkin-Elmer, attended a company picnic at its headquarters in Norwalk. The picnic was held in an area adjacent to the company's shipping department. In preparation for the picnic, maintenance workers employed by Perkin-Elmer set up the grounds and roped-off the access road leading to the shipping building. The road barrier set up prior to the picnic was made of one-quarter to one-half inch thick yellow nylon rope. The rope was tied at one end to a stationary object and was stretched across the roadway where it was attached to a portable metal stanchion that was placed along the edge of the roadway. There were no flags tied to the rope and no other warning devices were used to make the road barrier more visible.
At approximately 4:10 p.m., the defendant Edward Mead, driving a delivery van for a private delivery company, arrived at Perkin-Elmer for his daily pickup of packages. The defendant turned into Perkin-Elmer's access road and traveled approximately one quarter of a mile. As the defendant turned into the road leading to the shipping department, the van struck the rope. As a result, the portable stanchion was pulled into the side of the van and was propelled through the air where it struck the plaintiff, who was sitting at a picnic bench in a grassy area to the left of the roadway.
The plaintiff brought suit to recover damages for injuries to her head, face, neck, right wrist and elbow. On November 1, 1995, the jury returned a verdict in favor of the defendants. On November 6, 1995, the plaintiff filed a motion to set aside the verdict. On April 1, 1996, the trial court denied the plaintiff's motion to set aside the verdict and rendered judgment in favor of Perkin-Elmer on the defendants' counterclaim. On July 23, 1996, the defendants filed an appeal of the trial court's order rendering judgment in favor of Perkin-Elmer on their counterclaim. On September 25, 1996, we entered an order that the defendants' appeal be dismissed and their claim treated as a request for review of an adverse ruling of the trial court pursuant to § 4013(a)(1)(B).
The plaintiff first claims that the trial court abused its discretion in denying her motion to set aside the verdict as it was against the weight of the evidence. The plaintiff argues that, during the trial, she presented substantial evidence that Mead's negligence was the proximate cause of her injuries.
(Internal quotation marks omitted.) White v. Edmonds, 38 Conn.App. 175, 182, 659 A.2d 748 (1995). The trial court may set aside a jury's verdict only if it finds that the jury could not reasonably and legally have reached their conclusion. Mulligan v. Rioux, 229 Conn. 716, 726, 643 A.2d 1226 (1994), on remand, 38 Conn.App. 546, 662 A.2d 153 (1995).
Although the plaintiff presented evidence in support of her theory that Mead's negligence was the proximate cause of her injuries, the defendants also presented evidence that the road barrier set up by Perkin-Elmer was not reasonably visible to Mead. This evidence included Mead's testimony that he could not see the rope prior to striking it. There was also undisputed testimony that the rope across the roadway had no flags on it and that there were no warning devices in the area to indicate that the roadway was closed.
On the basis of that evidence, the jury reasonably could have concluded that Mead was not negligent and that the deficient road barrier was the cause of the accident. The trial court, therefore, properly denied the plaintiff's motion to set aside the verdict on the ground that it was against the weight of the evidence.
The plaintiff next claims that the trial court abused its discretion in failing to declare a mistrial or to set aside the verdict as a result of defense counsel's reference during closing argument to a document not in evidence. The plaintiff argues that during closing argument defense counsel improperly read to the jury excerpts from a police accident report that expressed the opinion of the investigating officer that the road barrier was inadequate.
The trial court has broad discretion in deciding whether counsel's comments before the jury are so prejudicial as to require the declaration of a mistrial. Berry v. Loiseau, 223 Conn. 786, 812-13, 614 A.2d 414 (1992). "A cautionary instruction is a relevant factor to be considered in determining if the trial court properly exercised its discretion ... as is the absence of bad faith on the part of ... counsel...." (Citations omitted.) Drew v. K-Mart Corp., 37 Conn.App. 239, 247, 655 A.2d 806 (1995). "The trial judge is in the best position to determine whether the admonition given was a sufficient antidote for improper argument." Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 204, 470 A.2d 705 (1984).
In this case, the plaintiff's counsel immediately objected to the statements made by defense counsel and asked that they be stricken. The trial court sustained the objection and instructed the jury that the statement "was not in evidence and the jury [should] disregard [it]." Defense counsel then apologized to the court and rephrased her argument. The plaintiff's counsel neither objected to the scope of the curative instruction given by the court nor moved for a mistrial. Under these facts, we cannot conclude that the trial court abused its discretion in failing to declare a mistrial or to set aside the verdict.
The plaintiff next claims that the trial court abused its discretion in permitting defense counsel to elicit a lay opinion from the plaintiff's witness, Edward Eckert, concerning the adequacy of the road barrier, while denying the plaintiff's counsel the opportunity to elicit a lay opinion from another witness on the same subject.
The admissibility of opinion testimony from lay witnesses (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 371, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct....
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