Wassell v. Hamblin

• Decision Date: 18 June 1985
• Court: Connecticut Supreme Court
• Parties: Stanley P. WASSELL et al. v. Wolcott C. HAMBLIN, Jr.

Page 870

493 A.2d 870

196 Conn. 463

Stanley P. WASSELL et al. v. Wolcott C. HAMBLIN, Jr.

Supreme Court of Connecticut.

Argued March 15, 1985.

Decided June 18, 1985.

Snow Gene Munford, Hartford, for appellants (plaintiffs).

Ralph G. Eddy, Hartford, with whom, on the brief, was Michael E. Riley, Hartford, for appellee (defendant).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and O'NEILL, JJ.

ARTHUR H. HEALEY, Associate Justice.

In this tort action, which arose out of a two-car collision on December 24, 1980, the complaint sought damages for personal injuries sustained by the plaintiffs, Gail Wassell and Pia Nordlander, against the defendant Wolcott C. Hamblin, Jr. The Hamblin car crossed over to the wrong side of the highway and struck the Wassell car which was operated at the time by Stanley Wassell. Gail, Stanley's wife, was a passenger in the front seat and Pia was a passenger seated in the rear at the left. At the time of the accident, neither plaintiff was using the seat belts with which the car in which they were riding was equipped.

Just prior to jury selection, the defendant admitted liability and was permitted, over objection, to amend his answer. The amended answer contained two special defenses, one directed to Gail and the other to Pia. They each alleged: "The Plaintiff[s'] ... failure to wear seat belts contributed to the damages being claimed by [them]." During the trial, the defendant did not call any witnesses or adduce any evidence, but relied solely on his cross-examination of the plaintiffs' witnesses. At the close of the evidence, the plaintiffs moved to "dismiss" the special defenses on the ground that there was insufficient evidence that the nonuse of seat belts contributed to any of the injuries and damages claimed by either plaintiff. The trial court denied the motion. The trial court charged the jury on the special defenses and the plaintiffs duly excepted. ¹ The jury returned a verdict for each of the plaintiffs. The trial court denied the plaintiffs' motion to set aside the verdicts, again rejecting their claim that the evidence was insufficient to justify the jury instruction on the special defenses of nonuse of seat belts, and further found that, in any event, "[a]ny error claimed" was cured by the general verdict in the case. This appeal followed.

On appeal, the plaintiffs claim that the trial court erred in: (1) allowing the defendant to amend his answer on the day of trial to allege the special defenses of nonuse of seat belts; (2) denying their motion to dismiss the special defenses at the close of the evidence; (3) instructing the jury on this special defense when there was no evidence introduced on this issue and no proof of any causation between the nonuse of the seat belts and the damages claimed; and (4) refusing to set aside the verdicts on the ground that the existence of a general verdict in this case cured any error claimed by the plaintiffs. We find error.

Initially, the plaintiffs claim in this court that the trial court erred in allowing the defendant to amend his answer to include the special defenses, claiming that the amendments were untimely and clearly prejudicial. "The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court." Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980); Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983). "In the interest of justice courts are liberal in permitting amendments; unless there is a sound reason, refusal to allow an amendment is an abuse of discretion." Tedesco v. Julius C. Pagano, Inc., supra. "The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. 'The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.' " (Citations omitted.) Wallingford v. Glen Valley Associates, Inc., supra, 161-62, 459 A.2d 525, quoting Tedesco v. Julius C. Pagano, Inc., supra, 341-42, 438 A.2d 95. At the time the amendments were granted, although the plaintiffs did argue untimeliness, they did not request any continuance nor did they make any claim of prejudice. Under the circumstances, we cannot find an abuse of discretion in granting the amendments.

Turning to the seat belt issue, we point out that the plaintiffs have not challenged the legal sufficiency of the special defenses pleaded in this case, and the parties all agree that these pleadings were interposed solely as a ground for "mitigating" the damages claimed by the plaintiffs. The special defenses alleged that each plaintiff's "failure to wear seat belts contributed to the damages being claimed by [each of them]." ² (Emphasis added.) We review this issue on the theory upon which it was presented and decided in the trial court. Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985), and cases there cited; see Maltbie, Conn.App.Proc. § 42. In their brief, the plaintiffs contend "that notwithstanding the propriety of allowing the nonuse of seat belts to be considered by the jury on the issue of mitigation of damages, the submission in the instant case was error because there was no evidence presented on this issue." ³ In claiming that the defendant did not sustain his burden on this issue, they maintain that "submission of the special defense ... was clearly erroneous because of the total lack of evidence linking nonuse of a seat belt to the plaintiffs' injuries." On the other hand, the defendant argues that not only was there sufficient evidence on the issue to justify submitting it to the jury but, in any event, the application of the general verdict rule "precludes consideration of the plaintiffs' claims of error in the jury instruction on the seat belt special defense." We agree with the plaintiffs.

The plaintiffs' claim that the trial court erred in submitting the special defenses to the jury because there was no evidence linking the plaintiffs' nonuse of the seat belts to their injuries is meritorious. The special defenses in their terms, the theory of the case as tried by the parties, and the trial court's instructions all have the common predicate that the alleged nonuse "contributed" to the damages suffered. The defendant thus had the burden of proof on the issue so raised by him, and this required that he prove that the damages, or at least a portion of them, were proximately caused by the nonuse of the seat belts. ⁴ After an examination of the record in this case, we agree with the plaintiffs' claim that there was no evidence that the nonuse of the seat belts had "contributed" to their injuries, and, therefore, the jury was left to sheer speculation on the element of causation. ⁵ "It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 [1975]." Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); see Josephson v. Meyers, 180 Conn. 302, 306, 429 A.2d 877 (1980); Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978); Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).

The error committed by the trial court in submitting the seat belt special defenses to the jury requires that the general verdict claim advanced by the defendant be rejected. See Novak v. Anderson, supra.

There is error, the judgment is set aside, and the case is remanded for a new trial limited to the issues of damages of the plaintiffs.

In this opinion the other Judges concurred.

1 The trial court's instructions on the special defenses were as follows:

"Now, when a defendant asserts a Special Defense, he has the burden of proving his allegations by a fair preponderance of the evidence, and you will recall my definition of a fair preponderance of the evidence; additionally the defendant must prove that the plaintiffs' failure to wear seat belts was the proximate cause which contributed to the damages being claimed by them.

"The question you should consider is whether the conduct of the plaintiffs in not wearing seat belts was a substantial factor in contributing to their injuries. If so, then the plaintiffs' conduct may be found to be a proximate cause in contributing to their injuries. If the conduct of the plaintiffs, in not wearing seat belts, was not a substantial factor in contributing to their injuries, then it was not a proximate cause and you may accordingly disregard the defendant's Special Defense. The burden of proving these two Special Defenses rests upon the defendant. The plaintiffs do not have to disprove them....

"Now, in evaluating the damages to be awarded to the plaintiffs, you may consider the allegations of the defendant's special defense, namely that their failure to wear seat belts contributed to the damages being claimed by them.

"Applying the rules of proof and proximate cause previously charged, if you find that the plaintiffs' failure to wear seat belts did in fact contribute to their damages, then you may offset from any sum to be awarded, a sum attributable to their failure to fasten their seat belts. In arriving at this sum however, you may not speculate or guess. You must find in the evidence some reasonable basis upon which to arrive at a set-off or discount for failure to wear a seat belt. Whether the plaintiffs' damages would have been lessened had they been wearing seat belts at the time of the accident, is for you to determine. If on the other hand, you find that the defendant has not proved his special defenses or that the plaintiffs' damages would have been lessened, then you may disregard the special defense."

The plaintiffs' exception to the instructions was as follows:

"Mr. Munford: I just have the same exception, Your Honor. Well, not the same I just except to the--

"The ...