Williamson v. Commissioner of Transp., 13366

CourtSupreme Court of Connecticut
Citation209 Conn. 310,551 A.2d 704
Docket NumberNo. 13366,13366
Decision Date13 December 1988

Page 704

551 A.2d 704
209 Conn. 310
No. 13366.
Supreme Court of Connecticut.
Argued Oct. 12, 1988.
Decided Dec. 13, 1988.

[209 Conn. 311]

Page 705

Bruce L. Levin, Orange, with whom, on the brief, was Serge G. Mihaly, Bridgeport, for appellant (plaintiff).

Michael T. Bologna, Stamford, for appellee (defendant).

Before [209 Conn. 310] PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and HULL, JJ.

[209 Conn. 311] HULL, Associate Justice.

Pursuant to General Statutes § 13a-144, 1 the plaintiff, Sonia Torres Williamson, instituted this action sounding in negligence against the defendant commissioner of transportation alleging that she sustained personal injuries as a result of the state's failure adequately to maintain its highways. After a trial, the jury returned a verdict in favor of the defendant. The plaintiff appealed from the judgment rendered on the verdict. We find no error.

The jury could reasonably have found the following facts. On July 4, 1980, the plaintiff, who lived in Bridgeport, was participating in a picnic trip to Lake Quassapaug with family and friends. The group proceeded in three vehicles north to Interstate 84 and was heading west when the plaintiff's fiance, Larry Williamson, driving the first car, heard a noise in the car's engine. [209 Conn. 312] He pulled the car over to the shoulder of the highway and stopped so that the doors on the passenger side were adjacent to a catch basin. The other vehicles stopped a short distance behind the lead car. Larry Williamson got out of the car, raised the hood, and discovered some ravelings on the fan belt, which he proceeded to cut off. At this time, he asked the plaintiff to go to the second vehicle, a van, and get him a beer. While the plaintiff was returning to the first car with a beer in hand, her right leg slipped or fell into an opening in the catch basin, causing the injuries.

After presentation of all the evidence, the court proceeded to charge the jury. In accordance with a long line of decisions discussing actions brought under General

Page 706

Statutes § 13a-144, the court instructed the jury, inter alia, that it was the plaintiff's burden to show that the defective highway was the sole proximate cause of her injuries. At the close of its instructions, the trial court provided the jury with a special verdict form on which to answer interrogatories relating to the allegations of the complaint. In response to these interrogatories, the jury found that the state had a duty to maintain the section of the highway where the plaintiff[209 Conn. 313] claimed to have been injured and failed to do so, making the area unsafe for public travel. The jury also found, however, that the plaintiff did not exercise due care, and, therefore, that the highway defect was not the sole proximate cause of her injuries. 2 Accordingly, the jury returned a verdict in favor of the defendant. After denying the plaintiff's motion to set aside the verdict and for a new trial, the court rendered judgment in accordance with the verdict. This appeal ensued.

On appeal, the plaintiff claims that the trial court erred in charging the jury: (1) on the burden of proof; (2) that the highway defect must be the sole proximate cause of the plaintiff's injuries; (3) that the plaintiff was not on the "travel portion" of the highway when she was injured; (4) with respect to sovereign immunity, and (5) on third party negligence. The plaintiff also [209 Conn. 314] claims that the trial court "unduly emphasized" in its charge the plaintiff's burden to prove that she exercised due care.


The plaintiff first contends that two sentences of the trial court's seventy-four page jury charge relating to sufficiency of the evidence and burden of proof constituted reversible error. The portion of the charge in question reads as follows: "In this case, the commissioner has presented some evidence contradicting certain of the plaintiff's claims. As to those where there has been no evidence by the defendant, there must still be proof by a fair preponderance of the evidence. Just by producing some evidence on the various points the plaintiff has not sustained her burden; and it's up to you that she may or may not have, depending on what you find. There must be a finding by you that each and every element is more probable than not, and any finding which you make must be based upon substantial evidence, and not upon surmise, conjecture or sympathy."

At trial, the plaintiff neither filed a request to charge on the issues of sufficiency of the evidence and burden of proof nor did she except to the trial court's instructions quoted above. Ordinarily, such omissions at the trial level would render the plaintiff's claim unreviewable. Practice Book §§ 315, 4185. The plaintiff maintains, however, that her failure to take a timely exception should be excused, and her claim now fully reviewed on appeal, because (1) her attorney was suffering from an undefined illness which may have prevented him from taking a timely exception to that portion of the charge, and (2) a timely exception

Page 707

was not required since it would have been "futile." We find the plaintiff's contentions without merit.

[209 Conn. 315] The trial transcript reveals that after the jury was charged and excused, the court asked counsel for both parties if they had any exceptions to the charge as given. Counsel for the plaintiff proceeded to take eleven exceptions. He did not, however, take exception to that portion of the charge now at issue. Counsel for the defendant then took two exceptions to the charge. After exceptions were taken, the trial transcript discloses that the plaintiff's counsel requested "a very brief recess," which was granted by the court. The plaintiff states in her brief that this recess was requested by her attorney because "he was not feeling well." Apparently, he excused himself from the courtroom and returned less that five minutes later. At no time, however, did the plaintiff's counsel state on the record his reasons for requesting the recess. Thereafter, the jury was reseated and the court proceeded to recharge them on three claimed errors raised by the attorneys in their exceptions. At the conclusion of the recharging, the jury retired to the deliberating room. No further exceptions were taken by either counsel.

The plaintiff initially claims that her failure to except timely to the instructions in question should be excused because her attorney was suffering from an undefined illness during the charge which may have prevented him from interposing a timely exception. We find that the record does not support such a claim. The trial transcript discloses that the plaintiff's counsel had the presence of mind to articulate eloquently eleven exceptions to various portions of the charge, including exceptions to the court's instructions regarding actual and constructive notice, proximate cause and sovereign immunity. These exceptions indicate to us that the plaintiff's counsel's ability to interpose timely exceptions to the jury charge, including the instructions at issue, was unaffected by any claimed illness. Our conclusion is bolstered[209 Conn. 316] by the fact that, despite ample opportunity to do so, the plaintiff's counsel failed to state on the record the nature and severity of his illness and precisely how it prevented him from raising an exception to the instructions the plaintiff now claims were erroneous. The failure to take even this small step renders the plaintiff's claim all the more unconvincing. Accordingly, on the facts presented, we find that the plaintiff's failure to raise an exception to the court's instructions regarding sufficiency of the evidence and burden of proof is not excused on the basis of an undefined illness of her counsel.

The plaintiff next contends that the trial court's failure to grant her motion to set aside the verdict on the basis that the jury instructions in question were erroneous demonstrates that the court would not have corrected these instructions even if the plaintiff had interposed a timely exception to them. Therefore, the plaintiff argues, her failure timely to except should be excused since it would have been a "futile act," which the law does not require. We disagree.

The plaintiff's assertion that the trial court would have disregarded a timely exception to the language in question is pure speculation and nothing more. By failing to except, the plaintiff deprived the trial court of an opportunity to correct the claimed error before the jury began its deliberations....

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  • Grayson v. Wofsey, Rosen, Kweskin and Kuriansky, 14889
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    • Supreme Court of Connecticut
    • August 23, 1994
    ...quotation marks omitted.) State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988); see Practice Book § 4185. On the basis of our careful review of the trial court's thorough jury instructions, 24 we c......
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    • July 7, 2009
    ...of the defect itself. See, e.g., White v. Burns, supra, 213 Conn. at 309, 567 A.2d 1195; Williamson v. Commissioner of Transportation, 209 Conn. 310, 321-22, 551 A.2d 704 (1988); Kolich v. Shugrue, 198 Conn. 322, 324-26, 502 A.2d 918 (1986); Leitkowski v. Norwich, 125 Conn. 49, 51, 3 A.2d 8......
  • White v. Burns, s. 13712
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    • Supreme Court of Connecticut
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    ...we have consistently applied the sole proximate cause standard to actions brought under § 13a-144. See, e.g., Williamson v. Commissioner, 209 Conn. 310, 551 A.2d 704 (1988); Lamb v. Burns, supra; Kolich v. Shugrue, 198 Conn. 322, 502 A.2d 918 (1986); Comba v. Ridgefield, 177 Conn. 268, 413 ......
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    • United States
    • Supreme Court of Connecticut
    • July 8, 2014
    ...[it] can hardly be said to have committed plain error”; (internal quotation marks omitted) Williamson v. Commissioner of Transportation, 209 Conn. 310, 319, 551 A.2d 704 (1988); id. (no plain error when trial court instructed jury, in accordance with long line of cases applying General Stat......
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