Ormsby v. Frankel

• Decision Date: 06 July 1999
• Docket Number: (AC 17621)
• Court: Connecticut Court of Appeals
• Parties: CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION

54 Conn. App. 98

734 A.2d 575

CAROLYN ORMSBY v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION

(AC 17621)

Appellate Court of Connecticut.

Argued March 24, 1999.

Officially Released July 6, 1999.

O'Connell, C. J., and Schaller and Sullivan, JS. Louis B. Blumenfeld, with whom, on the brief, was William J. Scully, for the appellant (defendant).

Kathryn Calibey, with whom was Douglas W. Hammond, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant, Emil Frankel, commissioner of transportation, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Carolyn Ormsby, on her complaint brought pursuant to General Statutes § 13a-144,¹ the defective roads and highway statute. The defendant claims that the trial court improperly (1) admitted evidence pertaining to actual and constructive notice, (2) denied his motions to set aside the verdict and for a directed verdict where there was insufficient evidence to support a finding of actual notice and constructive notice and (3) instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, February 20, 1993, between 2 and 3 p.m., the plaintiff was driving westbound on Route 6 in Farmington over Rattlesnake Mountain. Route 6 is a state highway, and, as such, the department of transportation (department) is responsible for its maintenance. The plaintiff was driving at approximately forty-five miles per hour in a forty-five mile per hour zone. In the course of her descent down Rattlesnake Mountain, she approached a lefthand curve. A department warning sign on the side of the highway, placed prior to the curve, informed drivers of the curve. Additionally, there was an advisory speed placard indicating that the recommended speed in the curve was forty miles per hour.

On February 20, 1993, the temperature was below freezing and the road was dry. The plaintiff entered the curve and encountered a large ice patch approximately 250 feet long in the westbound lane that had not been sanded or salted by the department. The plaintiff had no warning that the ice patch was on the curve and could not see it prior to encountering it. After the plaintiff crossed the ice patch, she lost control of her car and tapped her brakes two or three times to attempt to regain control of her vehicle. Her efforts were unsuccessful and she attempted to steer to regain control. Her car fishtailed approximately 180 degrees and ended up in the eastbound lane where her car collided with another vehicle driving eastbound up the hill. The plaintiff suffered serious injuries as a result of the collision.

An eyewitness to the accident, Jennifer White, was traveling westbound behind the plaintiffs car at a distance of approximately one to two car lengths. She was also traveling at approximately forty-five miles per hour. As she entered the curve and crossed the ice patch, she also began to lose control, but eventually managed to regain it.

The first police officer on the scene, Charles Pritchard, approached the accident from the east. He approached the curve at approximately five to ten miles per hour, a much slower speed than the plaintiff or White, because he did not know the exact location of the accident. He also was unaware of the ice patch until he encountered it and his police cruiser slid on the ice. Additional facts will be set forth where necessary to the resolution of this appeal.

I

The defendant first claims that the trial court improperly admitted evidence regarding actual and constructive notice. Specifically, the defendant claims that the trial court improperly admitted evidence concerning (1) ice on Route 6 at times prior to the accident, (2) a prior accident at the same location and (3) hearsay testimony. We are not persuaded by the first two claims but agree with the third.

"Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Emphasis added; internal quotation marks omitted.) Pacific Land Exchange v. Hunts, 52 Conn. App. 362, 363-64, 727 A.2d 1281 (1999).

A

The defendant first claims that the trial court improperly admitted evidence of prior ice patches at the same location. We disagree.

The plaintiff presented evidence from various Farmington police officers and dispatchers that the area where the accident occurred was notorious for icing in the winter. The defendant claims that the testimony, which was admitted over objectipn, is "irrelevant to the question of whether the defendant had notice of the ice/water condition that existed at the time of the accident."

Evidence is admissible only if it is relevant. "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable." (Internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 41, 719 A.2d 923 (1998). Although relevant, evidence will not be admitted if its probative value is outweighed by its prejudicial effect. See Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992). "It is well settled that questions of relevance are committed to the sound discretion of the trial court." (Internal quotation marks omitted.) First Federal Bank FSB v. Gallup, supra, 41-42.

In highway defect cases, the notice required "is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. `Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.' Smyth v. Bangor, 72 Me. 249, 252 [1881]; Pendelton v. Northport, 80 Me. 598, 600, 16 A. 253 [1888]; Ryerson v. Abington, 102 Mass. 526, 532 [1869]." (Emphasis added.) Carl v. New Haven, 93 Conn. 622, 628, 107 A. 502 (1919).

The defendant relies on Carl for the proposition that evidence of prior alleged defective conditions is irrelevant. That reliance is misplaced. Carl makes clear that the question of prior conditions goes to the issue of sufficiency rather than relevancy. Both our Supreme Court and this court have dealt with cases where evidence of prior conditions was admitted. In those cases, neither court declared the evidence inadmissible, but dealt with the sufficiency of the evidence to prove constructive notice. See Prato v. New Haven, 246 Conn. 638, 640, 717 A.2d 1216 (1998) (evidence of prior bonfires at intersection every July 3, for fifteen consecutive prior years before court "not sufficient notice"); Aaronson v. New Haven, 94 Conn. 690, 692,110 A. 872 (1920) (prior toppling over of silent policeman entered in evidence); Pajor v. Wallingford, 47 Conn. App. 365, 372 n.3, 704 A.2d 247 (1997), cert. denied, 244 Conn. 917, 714 A.2d 7 (1998) ("[s]uch evidence would often be relevant to prove the existence of the defect relied upon, its nature and the time when it should have been observed by the municipality").

The plaintiffs evidence that icing existed on prior occasions at the location of her accident is relevant to whether the department had constructive notice of the icing at the time of the accident. Moreover, we conclude that the admission of the evidence of prior icing conditions was not so prejudicial to the defendant as to outweigh its probative value. Whether it sufficiently proved that the department had constructive notice is a question of fact that the trial court properly left to the jury.² The trial court did not abuse its discretion as evidentiary gatekeeper.

B

The defendant next claims that the trial court improperly admitted evidence of a prior accident at the same location. We disagree.

"A party attempting to offer evidence of prior accidents or evidence of the experience of others has the burden of proving that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff.... Moreover, [e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of substantial similarity of conditions between the immediate and the prior happenings.... The question whether the essential preliminaries have been established is for the court, and the court's decision will not be disturbed unless there is clear and manifest error." (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 452, 569 A.2d 10 (1990); see also Claveloux v. Downtown Racquet Club Associates, 246 Conn. 626, 630, 717 A.2d 1205 (1998); Sacks v. Connecticut Co., 109 Conn. 221, 238-39, 146 A.2d 494 (1929) (prior accident evidence admissible to show defendant knew or should have known of hazard created by particular condition or danger); Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 216, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

The plaintiff offered the following facts, outside the presence of the jury, to establish the similarities between the prior accident and the plaintiffs accident. One day prior to the plaintiff's accident, on February 19, 1993, between 2 and 3 p.m., Matthew Eagan was driving westbound on Route 6 over Rattlesnake Mountain. He was driving approximately forty to forty-five miles per hour, and the roads were dry. As he entered the same...