Shook v. Bartholomew, AC 38945

• Decision Date: 20 June 2017
• Docket Number: AC 38945
• Citation: 165 A.3d 256,173 Conn.App. 813
• Court: Connecticut Court of Appeals
• Parties: Herbert SHOOK v. Ashley BARTHOLOMEW Herbert Shook v. Eastern Connecticut Health Network, Inc.

173 Conn.App. 813

165 A.3d 256

Herbert SHOOK

v.Ashley BARTHOLOMEW

Herbert Shook

v.Eastern Connecticut Health Network, Inc.

AC 38945

Appellate Court of Connecticut.

Argued March 6, 2017

Officially released June 20, 2017

Kathleen F. Adams, with whom, on the brief, was Peter J. Ponziani, for the appellants (defendant in each cases).

Alinor C. Sterling, with whom was Emily B. Rock, for the appellee (plaintiff in both cases).

DiPentima, C.J., and Mullins and Norcott, Js

MULLINS, J.

In these consolidated actions, the defendants, Ashley Bartholomew and her employer, Eastern Connecticut Health Network, Inc., appeal from the judgments of the trial court, rendered in favor of the plaintiff in both actions, Herbert Shook, following a jury trial. On appeal, the defendants claim that the court improperly (1) refused to instruct the jury on apportionment of liability on the basis of comparative negligence despite the submission of a request to charge on that doctrine, (2) permitted the plaintiff to introduce evidence regarding his driving history, and (3) denied their motion to set aside the verdict. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts on the basis of the evidence presented. On November 21, 2012, at approximately 4:45 p.m., the plaintiff exited off of Interstate 84 in Manchester. It was the day before Thanksgiving and traffic was heavy. He stopped at the red light on the exit ramp in preparation to take a left turn onto Deming Street. The intersection is a busy four-way intersection, essentially in the shape of a cross or a plus sign, with many lanes. Some of the lanes of the intersection are for left turns, some for right turns and some for vehicles traveling straight through the intersection. There are traffic signals in the center of the intersection. The plaintiff's vehicle, which had exited Interstate 84, was facing north toward Avery Street; running east to west at the intersection is Deming Street. When the left arrow for the plaintiff's lane turned green, the plaintiff proceeded slowly into the intersection, intending to turn left (west) onto Deming Street. Bartholomew, who was traveling east on Deming Street in her Toyota Camry, hit the plaintiff's vehicle directly on the driver's side door. Although Bartholomew applied her breaks prior to impact, the plaintiff still sustained serious life-threatening injuries. Several witnesses saw the accident and gave statements to the police and/or provided testimony to the jury. The statements and testimony of those witnesses, varied greatly. Some of the witnesses stated that Bartholomew ran through a red light, and that the plaintiff had a green light. Other witnesses stated that the plaintiff ran through a red light, and that Bartholomew had a green light.

The plaintiff filed a complaint sounding in negligence against Bartholomew, and, in a separate action, he filed a complaint alleging vicarious liability against Eastern Connecticut Health Network, Inc., as the accident occurred during the course of Bartholomew's employment. The defendants each filed answers and the special defense of comparative negligence. In their special defenses, the defendants alleged that the plaintiff had been negligent in several different ways, including, that he entered the intersection while his light was red, that he failed to observe that east and west traffic on Deming Street was crossing in front of him and that it was not safe to enter the intersection, and that he failed to maintain a reasonable lookout for other vehicles. The plaintiff denied the special defenses.

The two separate cases that the plaintiff had filed, one against each defendant, later were consolidated for trial, and counsel agreed that the pleadings and the record in one case applied equally to the other case and vice versa. The matter then was tried to a jury over the course of several days.

On November 23, 2015, the defendants submitted a request to charge that included various proposed instructions on comparative negligence. During the on-the-record charging conference, the plaintiff's attorney argued that there was no evidence to support a charge on comparative negligence on the plaintiff's part. He contended that the evidence demonstrated either that the plaintiff had a red light and ran through it, or that Bartholomew had a red light and ran through it, and that this was the manner in which the case was tried.

In response, the defendants' attorney argued: "It's the defendants' position that the evidence does support the issuance of the charge. The jury could find comparative negligence here, even if it found one operator or the other ran the red light, specifically if they found [Bartholomew] went through the red light .... [T]he jury could still find—whether it's a probability or not, we don't know, but it's possible they could still find—that, due to the configuration of this intersection, the sightlines available, the opportunity to perceive and react, [that] nonetheless, there is some comparative fault to be apportioned here, even if they found that one operator or the other, in fact, committed negligence per se in running the red light. So it's the defendants' position that the evidence in the case does support the issuance of the charge on comparative negligence."

The court responded that it recognized that there was a special defense alleging comparative negligence and that the defendants had requested a comparative negligence instruction, but that it did not "remember any evidence at all concerning any of the sightlines." The court stated that it thought a comparative negligence instruction, wherein the jury could apportion some liability to the plaintiff, might confuse the jury because the case was tried as one in which the only issue was "who ran the red light." Additionally, the court stated that it had not "heard anything from counsel, very frankly, either in chambers or in court, that would persuade [it] otherwise ...." After some unrelated discussion, the defendants' counsel stated that he was taking an exception to the court's ruling on the comparative negligence instruction.

After the court instructed the jury, the defendants' counsel again noted his exception. The jury returned a plaintiff's verdict, and the defendants filed a motion to set aside the verdict, which the court denied. On February 23, 2016, the court rendered judgments in favor of the plaintiff. This appeal followed.

I

The defendants claim that the court improperly refused to instruct the jury that it could apportion liability on the basis of comparative negligence as requested in their proposed charge. They argue that there was a "clear record [of] evidence supporting a comparative negligence finding," and that there are statutes supporting such a finding and a jury charge on this issue. Additionally, the defendants contend that, even if the plaintiff had the green light, "Supreme Court authority expressly holds that comparative negligence principles apply when the plaintiff operator has the green light and the right-of-way." The defendants cite to specific evidence in the record, statutes, and Supreme, Appellate and Superior Court case law to support their contentions. The plaintiff argues in part that the defendants failed to alert the trial court to the applicability of the cases and the statutes they now cite on appeal.

We conclude that the defendants did not present these evidentiary arguments, statutes, and cases to the trial court, and, further, that they failed to comply with the specific requirement in Practice Book § 16–23 to set forth evidence to support a comparative negligence instruction in their request to charge. See also Practice Book § 16–21. Accordingly, we decline to review this claim.

"Pursuant to Practice Book § 60-5 : ‘The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial....’ ‘As we have repeatedly reiterated, issues not properly raised before the trial court will ordinarily not be considered on appeal.... We have referred to the policy reasons underlying the preservation requirement on several occasions. The policy serves, in general, to eliminate the possibility that: (1) claims of error would be predicated on matters never called to the attention of the trial court and upon which it necessarily could have made no ruling in the true sense of the word; and (2) the appellee ... would be lured into a course of conduct at the trial which it might have altered if it had any inkling that the [appellant] would ... claim that such a course of conduct involved rulings which were erroneous and prejudicial to him.’ " Rendahl v. Peluso , 173 Conn.App. 66, 105–106, 162 A.3d 1 (2017).

Our decision also is guided by other rules of practice. Practice Book § 16–20 provides: "An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. The exception shall be taken out of the hearing of the jury."

Practice Book § 16–21 provides in relevant part: "Any party intending to claim the benefit of the ... provisions of any specific statute shall file a written request to charge on the legal principle involved." See also Mancaniello v. Guile , 154 Conn. 381, 385, 225 A.2d 816 (1966) (party intending to rely on specific statute should submit written request to charge specifically citing statute). The party requesting a charge on a specific statute has the burden to demonstrate the statute's application, meaning, and effect on the case. See Lowell v. Daly , 148 Conn. 266, 269–71, 169 A.2d 888 (1961).

Practice Book § 16–23 (a) provides: "When there are several requests, they shall be in separate and numbered...