Shea v. Tousignant

• Decision Date: 07 December 1976
• Citation: 172 Conn. 54,372 A.2d 151
• Court: Connecticut Supreme Court
• Parties: Michael SHEA v. Suzanne TOUSIGNANT et al.

Page 151

372 A.2d 151

172 Conn. 54

Michael SHEA v. Suzanne TOUSIGNANT et al.

Supreme Court of Connecticut.

Dec. 7, 1976.

Donald W. O'Brien, Hartford, for appellants (defendants).

William F. Gallagher, New Haven, with whom, on the brief, was, John P. McKeon, Hartford, for appellee (plaintiff).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The plaintiff, Michael Shea, brought this action to recover damages for personal injuries and other losses he sustained on May 15, 1970, as a result of a collision between the automobile he was operating and an automobile owned by the defendant Noe Tousignant and operated by his daughter, the other defendant, Suzanne Tousignant. The plaintiff alleged in his complaint that the named defendant negligently drove the automobile which she was operating in a northerly direction into the southbound lane of route 2 directly into the plaintiff's vehicle which was proceeding in the opposite direction. The plaintiff further alleged that the defendant had consumed alcoholic beverages and was unfit to operate her car at the time of the collision. The defendants pleaded the plaintiff's contributory negligence as a special defense. Following a trial, the jury awarded the plaintiff $36,600 as damages.

The defendants have appealed to this court from the judgment rendered upon the verdict and claim error in the court's denial of their motion to set the verdict aside, in the court's charge to the jury, and in several rulings on the admissibility of evidence.

The defendants first claim that the trial court erred in refusing to charge the jury with respect to the effect on liability of the named defendant's having either fallen asleep or become unconscious, contending that this was an issue which should have been submitted to the jury as the trier of fact. See Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432.

The named defendant testified that before the accident she had been in an East Hartford restaurant for about four hours during which time she had consumed two beers. She testified that she did not know how the accident happened, stating that she either passed out or fell asleep before the accident, and that before she lost consciousness she did not in any way feel sleepy, nor did she feel herself dozing, nor feel her eyes closing. She testified further that she felt no effect from the two beers she had consumed while in the restaurant, and that the beers had not affected her driving ability. She also stated she was not feeling well when she left the restaurant. The defendants requested that the court charge the jury as follows: 'The defendant Suzanne Tousignant has testified in this case that prior to the accident she had lost consciousness, fainted or fallen asleep. I instruct you that under the law of this state it is not negligent merely to fall asleep, faint or suddenly lose consciousness, and thereby lose control of a car. For you to find that the defendant was negligent by reason of failling asleep, fainting, or losing consciousness, you must first find that she had some advance notice that she was going to fall asleep, faint or lapse into unconsciousness. If you do not find that she had such advance notice, then you may not find that her falling asleep, fainting, or losing consciousness was negligence. Likewise, if you so find that her falling asleep or losing consciousness was without any advance notice, then you may not find her negligent by reason of failing to keep a reasonable and proper lookout for other vehicles, or failing to keep her vehicle under reasonable and proper control, or by reason of driving in the wrong direction on the highway, or by operating her vehicle in such a manner as to endanger life, limb and property.' The court refused to charge as requested. It is the defendants' contention that by failing to give the requested charge, the court left the jury totally without guidance as to the effect of becoming unconscious or falling asleep. In the leading case of Bushnell v. Bushnell, supra, where the defendant operator momentarily fell asleep, causing the automobile to run off the highway and to strike a tree, resulting in injuries to a passenger, the trial court submitted to the jury the question whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence. This court stated (p. 590, 131 A. p. 434): 'Certainly in all reason he who, stricken by paralysis or seized by an epileptic fit, still continues with his hands upon the wheel of the automobile he was driving, and, unconscious, so directs it as to cause its collision with another, cannot be held negligent for the way in which he controlled it; and no more can he who exercises a like direction after he has been overtaken by sleep. In such a case, the question must be, was the defendant negligent in permitting himself to fall asleep.' See annot., 28 A.L.R.2d 44, § 22, and cases collected therein. Similar reasoning applies when a driver momentarily lapses into unconsciousness. 'Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning of his condition.' 8 Am.Jur.2d 245, Automobiles and Highway Traffic, § 693 n. 17.

We stated further in Bushnell v. Bushnell, supra, 592, 131 A. 435, that in the case of the ordinary driver 'the mere fact of his going to sleep while...