Smith v. Czescel

• Decision Date: 23 December 1987
• Docket Number: No. 5397,5397
• Court: Connecticut Court of Appeals
• Parties: Leonard SMITH et al. v. John CZESCEL

Page 223

533 A.2d 223

12 Conn.App. 558

Leonard SMITH et al. v. John CZESCEL

No. 5397.

Appellate Court of Connecticut.

Argued Sept. 30, 1987.

Decided Nov. 10, 1987.

Certification Denied Dec. 23, 1987.

Arthur M. Field, Fairfield, for appellants (plaintiffs).

William F. Gallagher, New Haven, with whom, on brief, was Gwen B. Weltman, Bethany, for appellee (defendant).

Before BORDEN, DALY and O'CONNELL, JJ.

BORDEN, Judge.

The principal issue of this appeal is whether the trial court committed plain error in its charge to the jury regarding falling asleep while operating a motor vehicle. We conclude that the charge as given does fall within the plain error doctrine.

The named plaintiff, Leonard Smith, and his minor daughter, Kristen Smith (the plaintiff), appeal from the judgment rendered upon a verdict for the defendant, who was the owner and operator of a motor vehicle in which the plaintiff was a passenger. The plaintiffs' principal claims of error concern the court's instructions to the jury arising out of evidence that the defendant momentarily fell asleep while driving his vehicle.

The plaintiffs' evidence was, in part, as follows: On December 31, 1981, at approximately 7:30 p.m., the plaintiff went to a New Year's Eve party in Naugatuck with the defendant, who was her boyfriend. Some time after midnight, they left to go home in the defendant's Chevrolet Blazer. The plaintiff climbed into the back of the vehicle and fell asleep. The defendant had nearly reached his home when he remembered that the plaintiff was asleep in the back of his vehicle. He then drove toward the plaintiff's home. After driving for a total of about forty minutes, they were traveling southbound on Coram Road, in Shelton, approximately one mile from the plaintiff's house. At 3 a.m., while traveling approximately thirty-five miles per hour, the vehicle left the road, and struck a mailbox and a telephone pole. The plaintiff incurred serious and undisputed injuries.

The plaintiff recalled only climbing into the back of the vehicle, falling asleep, and waking up in the hospital emergency room. She testified that, while the defendant was visiting her in the hospital three days after the accident, the defendant told her that he "started to doze off," that he felt the vehicle go off the road, and that he attempted to steer it back onto the road before hitting the pole. The defendant testified that "[f]rom the time I was headed southbound on Coram Road, almost at the scene of the accident, I have a blank spot from there and the next thing I knew, I was headed off the road." He stated in his motor vehicle accident report, introduced into evidence, that he "was traveling south on Coram Road. Everything fine. Must have dozed for [a] second. Next thing I knew a mailbox and telephone pole [were] in front of me." He also testified that this written account was true "[t]o the best of my knowledge, I cannot--the dozed off part is the only thing--I got that black spot, that blank," that he "must have dozed off for a second," and "I got that blank spot, that's all I can really say." It is clear, therefore, that the court was required to charge the jury on the rules of law applicable to a situation in which the operator of a motor vehicle falls asleep.

The court charged in this respect as follows: "Now, in this case the defendant has testified that prior to the accident he had lost consciousness, blacked out I think was the word that was used. I instruct you that under the laws of this state, it is not negligence 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 falling asleep, fainting or losing consciousness, you must first find that he had some advance notice that he was going to fall asleep, faint or lapse into unconsciousness. If you do not find that he had such advance notice, you may not find that his falling asleep, fainting or losing consciousness was negligence. Likewise, if you so find that his falling asleep or losing consciousness was without any advance notice, you may not find him negligent by reason of failing to keep a reasonable and proper lookout for other vehicles or failing to keep his vehicle under reasonable and proper control or by reason of driving in the wrong direction on the highway or by operating his vehicle in such a manner to endanger life, limb and property. Certainly in all reason, he who being stricken for the first time by paralysis still continues with his hands upon the wheel of an automobile he was driving and unconscious so directs it to cause its collision with another cannot be held negligent for the way in which he controlled it. Similarly where a driver has been overtaken by sleep, the question must be was the defendant negligent in permitting himself to fall asleep? Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints or suffers sudden attack and losing consciousness or control of the car when he is without premonition or warning of his condition. However, the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case and sufficient for recovery by the plaintiff if no circumstances tending to excuse or justify his conduct are proven." ¹ Thereafter, during its deliberations, the jury requested the court to repeat its charge "about negligence and blacking out by the defendant." The court repeated for the jury its original charge on falling asleep or losing consciousness. The jury returned a general verdict for the defendant. The court denied the plaintiffs' motion to set aside the verdict, and rendered judgment for the defendant. This appeal followed.

The plaintiffs raise a constellation of claims of error regarding the court's instructions. The defendant correctly argues, however, that the plaintiffs failed to preserve properly their claims for appellate review because they neither filed a request to charge regarding sleep, nor took exceptions which were distinct enough to alert the court to their claims of error. ² Indeed, the plaintiffs took no exception at all to the court's repetition, after the jury's request, of its original instruction. Such procedural failures ordinarily preclude appellate review. Practice Book § 315. ³ Despite these gross procedural inadequacies, however, we conclude that the plaintiffs' claims qualify for review under the plain error doctrine. This court "may in the interests of justice notice plain error not brought to the attention of the trial court." Practice Book § 4185. "Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 221 (1980). An important factor in determining whether to invoke the plain error doctrine is whether the claimed error "result[ed] in an unreliable verdict or a miscarriage of justice." State v. Hinckley, supra, 198 Conn. at 88, 502 A.2d 388. This is such a case.

Our Supreme Court first considered the issue of the relationship between sleep and negligence in operating a motor vehicle in Bushnell v. Bushnell, 103 Conn. 583, 588-92, 131 A. 432 (1925). In that case, the plaintiff passenger sued the defendant driver who had momentarily fallen asleep, causing the car to leave the road and hit a tree. The trial court "submitted to the jury the question [of] whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence on his part." Id. at 588, 131 A. 432. The defendant argued that, as a matter of law, he could not be negligent "because no man can tell when sleep will fall upon him." Id. at 590, 131 A. 432.

The court, in rejecting the defendant's argument, pointed out that, although one cannot precisely fix the moment when he falls asleep, "it is not true that ordinarily sleep comes unheralded." Id. at 590-91, 131 A. 432. The court then reviewed "the chief phenomena of ordinary, healthy sleep"; id. at 591, 131 A. 432; namely, diminishing consciousness of ordinary stimuli, either external or internal to the sleeper; a sense of well-being; relaxation of the muscles and limbs; drooping eyelids; contracted pupils; slow and deeper breathing; slower pulse; general lowering of body temperature; and slowing of metabolic processes. Id. This is particularly true where sleep comes to one in a situation such as driving a car, where there is "prolonged action" of the motion of the car, little voluntary movement, and muscular relaxation, "acting upon one who has become more or less fatigued and is sitting down in a warm atmosphere." Id.

The court then stated: "Sleep in such a situation does not ordinarily come upon one unawares, and by watching for indications of its approach, or heeding circumstances which are likely to bring it about, one may either ward it off or cease an activity capable of danger to himself or to others. There are few ordinary agencies so fraught with danger to life and property as an automobile proceeding upon the highway freed of the direction of a conscious mind, and because this is so, reasonable care to avoid such a danger requires very great care. Mulligan v. New Britain, 69 Conn. 96, 102, 36 A. 1005 [1897]; Brown v. New Haven Taxicab Co., 93 Conn. 251, 254, 105 A. 706 [1919]; Walters v. Hansen, 99 Conn. 680, 683, 122 A. 564 [1923]; Towers v. Camp, 103 Conn. 41, 47, 130 A. 86 [1925]. In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent, it lies within...