Rokus v. City of Bridgeport

• Decision Date: 09 August 1983
• Citation: 191 Conn. 62,463 A.2d 252
• Court: Connecticut Supreme Court
• Parties: Albert ROKUS v. CITY OF BRIDGEPORT et al.

Page 252

463 A.2d 252

191 Conn. 62

Albert ROKUS v. CITY OF BRIDGEPORT et al.

Supreme Court of Connecticut.

Argued June 8, 1983.

Decided Aug. 9, 1983.

James E. O'Donnell, Bridgeport, with whom was Daniel D. McDonald, Bridgeport, for appellants (defendants).

T. Paul Tremont, Bridgeport, with whom, on the brief, was Robert R. Sheldon, Bridgeport, for appellee (plaintiff).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and SHEA, JJ.

SPEZIALE, Chief Justice.

The plaintiff, Albert Rokus, brought suit against the defendants, the city of Bridgeport and its employee, Rafael Gomez, for damages incurred when the city's truck, driven by Gomez, struck the plaintiff. The case was tried to a jury which found in favor of the plaintiff against the defendants and awarded the plaintiff $275,000 in damages. The defendants have appealed from the trial court's judgment rendered on the verdict.

The jury reasonably could have found the following facts: On October 26, 1976, the plaintiff was employed at the Sikorsky Aircraft Corporation plant on South Avenue in Bridgeport. About 6:30 a.m. that day he drove to an employee parking area located at the southwest corner of the South Avenue and Barnum Dyke intersection. South Avenue carries traffic generally east and west; Barnum Dyke carries traffic north and south. They intersect at the western terminus of South Avenue and the northern terminus of Barnum Dyke, forming an "L" shape. In order to walk from the parking lot to the Sikorsky plant Rokus had to cross Barnum Dyke and proceed east along South Avenue to the entrance gate. As Rokus was crossing Barnum Dyke, Gomez was driving a dump truck, owned by the city, westerly on South Avenue. As Gomez turned left from South Avenue to Barnum Dyke the front of his truck struck the plaintiff and knocked him to the pavement. A critical issue at trial was the exact point of impact. The plaintiff alleged that he had already reached the southeast curb of the intersection when the truck mounted the curb and struck him as he stood on the sidewalk. The defendants denied that the truck had mounted the curb and claimed that the plaintiff's injuries resulted from his own negligence.

The defendants raise three claims of error on appeal: (1) that a photograph and a survey map of the intersection, offered by the plaintiff, should not have been admitted into evidence; (2) that the trial court erred in not allowing the defendants to introduce on cross- examination of a police officer, statements made at the scene by the defendant Gomez regarding the accident; and (3) that the trial court erred in excusing a juror from the regular panel and substituting an alternate during the first day of trial.

I ADMISSIBILITY OF PHOTOGRAPH AND SURVEY MAP

At trial the plaintiff introduced a photograph and a survey map of the intersection of South Avenue and Barnum Dyke. Both exhibits were made well after the accident and both depicted an asphalt cap that the defendant city of Bridgeport had placed over the curbing at the southeast corner of the intersection. The defendants contend that because the plaintiff's case was founded on a claim that the truck mounted the curb at this point, and because both exhibits illustrate repairs to the curb, the jury reasonably might have inferred that the truck had in fact mounted the curb and struck the plaintiff. The city argues that the introduction of the exhibits is thus barred by the subsequent repair doctrine.

"It has long been the settled rule in this State that evidence of subsequent repairs is inadmissible to prove negligence or an admission of negligence at the time of the accident." Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936); see Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Gustafson v. Meriden, 103 Conn. 598, 602, 131 A. 437 (1925); Donovan v. Connecticut Co., 84 Conn. 531, 538, 80 A. 779 (1911). Connecticut's subsequent repair rule conforms with that of other jurisdictions. "At all events the courts do exclude, when offered as admissions of negligence or fault, evidence of remedial safety measures taken after an injury ...." McCormick, Evidence (2d Ed.) § 275; see also Fed.R.Evid., 407 ("evidence of the subsequent [repair] is not admissible to prove negligence or culpable conduct"). The central question is the plaintiff's purpose in introducing the evidence. The doctrine bars evidence of subsequent repairs when offered to prove negligence. It does not exclude such evidence when offered to prove some other material issue. We have held, for example, that "[w]here control of premises is one of the issues in a case, such evidence is admissible to prove it." Williams v. Milner Hotels Co., 130 Conn. 507, 510, 36 A.2d 20 (1944); Staples v. Bernabucci, 119 Conn. 443, 450, 177 A. 380 (1935); see McCormick, supra, noting many other situations in which evidence of subsequent repairs was admitted.

When the defendants objected to the introduction of the photograph and the survey map at trial, the plaintiff's attorney declared that his only purpose in introducing the exhibits was to demonstrate "the layout" of the intersection of South Avenue and Barnum Dyke. In response to the defendants' objection, the plaintiff's counsel explicitly stated that the exhibits were not intended as proof of the city's negligence or culpability. The trial court in overruling the defendants' objection based its decision to admit the photograph and the survey map on its finding that the exhibits were offered for a purpose "exclusive" of showing negligence.

Because the exact point of impact was critical to his case, it was entirely reasonable for the plaintiff to use illustrations of the accident scene. We find no indication from the record that the trial court erred in concluding that the photograph and the survey map were introduced solely to show the configuration of the streets and adjacent sidewalks rather than to show negligence. We hold therefore that the subsequent repair rule is inapplicable ¹ and that the court properly admitted the exhibits for the limited purpose offered.

The defendant now complains that the trial court did not instruct the jury that the evidence should be considered only for that purpose. The defendant did not, however, request a limiting instruction when the photograph and the survey map were admitted. Where a claimed error is not brought to the attention of the trial court, we will not review the claim on appeal absent special circumstances not demonstrated in this appeal. Practice Book § 3063; Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982); Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982). Although it is the better practice for the trial court to instruct the jury whenever evidence is admitted for a limited purpose even when not requested to do so; see Blanchard v. Bridgeport, 190 Conn. 798, 463 A.2d 553 (1983); we cannot say that the trial court's failure to do so in this case was error.

II ADMISSIBILITY OF STATEMENTS OF DEFENDANT GOMEZ

In presenting his case the plaintiff called the police officer, Julio Santos, who investigated the accident. On direct examination the plaintiff asked the officer if the defendant truck driver, when questioned at the scene, had said that he "could not see the victim Mr. Rokus in time before he struck him." Santos replied that the defendant had said that. On cross-examination the defendant tried to elicit the entire conversation from which that comment was excerpted:

"Q. And you talked to Mr. Gomez. He was still there.

"A. Yes.

"Q. Is that right?

"A. Yes.

"Q. And he told you, did he not, how this accident happened. Didn't he?

"A. Yes.

"Q. And what did he tell you?"

Before Santos responded, the plaintiff's counsel objected to the question on the grounds that the out-of-court statement of Gomez would be self-serving, and thus inadmissible. The trial court sustained the plaintiff's objection over the defendants' claim that they had a right to elicit the entire conversation in which Gomez told the officer that he did not see the victim in time to stop. The defendants now advance that same claim on appeal.

"It is an elementary rule of evidence that where part of a conversation has been put in evidence by one party to a litigation or prosecution, the other party is entitled to have the whole conversation, so far as relevant to the question, given in evidence, including the portion which is favorable to him." State v. Savage, 161 Conn. 445, 448, 290 A.2d 221 (1971); see Sullivan v. Nesbit, 97 Conn. 474, 477, 117 A. 502 (1922); Clark v. Smith, 10 Conn. 1, 5 (1833). "[T]he entire conversation in which an admission was contained should be related in order to prevent statements from being taken out of context ...." State v. Hicks, 169 Conn. 581, 589, 363 A.2d 1081 (1975).

At trial, the plaintiff was able to introduce the out-of-court statement of Gomez through Santos' testimony because it constituted an admission by a party opponent. The statement was therefore exempted from the rule barring hearsay evidence. Ferris v. Polycast Technology Corporation, 180 Conn. 199, 204, 429 A.2d 850 (1980). The defendants, of course, could not avail themselves of that exception, because in most circumstances Santos' recitation of the defendant Gomez' out-of-court statement would be inadmissible hearsay evidence when offered by the declarant. The principle announced in State v. Savage and State v. Hicks, however, is an independent exception to the rule against hearsay. When a portion of a party's out-of-court admission is placed in evidence by an opponent, the party has a right to introduce other relevant portions of the conversation from which it was excerpted, irrespective of whether it is self-serving or hearsay. State v. Hicks, supra, 169 Conn. 589, 363 A.2d 1081; 7 Wigmore, Evidence (3d Ed.) § 2094. Thus, the trial court erred in not allowing the defendant to introduce the entire conversation between...