Zimny v. Cooper-Jarrett, Inc.

• Decision Date: 05 August 1986
• Docket Number: INC,COOPER-JARRET,No. 3784,3784
• Citation: 513 A.2d 1235,8 Conn.App. 407
• Parties: Frank ZIMNY, Administrator (ESTATE OF Hannelore ZIMNY) v., et al.
• Court: Connecticut Court of Appeals

Page 1235

513 A.2d 1235

8 Conn.App. 407

Frank ZIMNY, Administrator (ESTATE OF Hannelore ZIMNY) v. COOPER-JARRETT, INC., et al.

No. 3784.

Appellate Court of Connecticut.

Argued April 2, 1986.

Decided Aug. 5, 1986.

Joseph Adinolfi, Jr., with whom were Joseph C. Morelli and John D. Miletti, Hartford, for appellant (defendant Thomas W. Hogan, Jr.)

John W. Lemega, with whom was George D. Royster, Jr., Hartford, for appellee (plaintiff).

Before HULL, BORDEN and STOUGHTON, JJ.

HULL, Judge.

This negligence case arose out of a very complicated multivehicle accident which occurred on January 13, 1976, on an icy area of Interstate 84 (I-84), eastbound, in New Britain. The plaintiff's decedent, Hannalore Zimny, got out of the driver's seat of her damaged car and walked around to the passenger side to help her mother get out of the car. While helping her mother, she was struck by a vehicle and received injuries which resulted in her death forty-five days later. The plaintiff administrator sued nine defendants, eight of whom, including the named defendant, settled the claims prior to or during the trial for a total of $225,000. The case proceeded against only one of the defendants, Thomas W. Hogan, Jr. The jury rendered a verdict for the plaintiff in the amount of $1,074,171.90, reduced to $859,337.52 to reflect the decedent's comparative negligence of 20 percent. The defendant filed motions to set aside the verdict and for a new trial in accordance with Practice Book §§ 320 and 321, and a motion for order of remittitur, pursuant to General Statutes § 52-216a. The trial court denied all of these motions and the defendant filed this appeal.

The defendant claims that the trial court erred in several respects: (1) in charging the jury on the rescue doctrine; (2) in admitting certain testimony of the plaintiff's accident reconstruction expert; (3) in failing to set aside the verdict and order a new trial or order a remittitur; (4) in failing to rule that General Statutes § 52-216a violates the equal protection provisions of the United States and Connecticut constitutions; and (5) in failing to set aside the verdict and render judgment for the defendant on the basis of insufficient evidence of negligence.

The parties stress conflicting testimony concerning key factors in the accident. A summary of the undisputed evidence and the areas in which the parties disagree follows. On January 13, 1976, between 2 p.m. and 2:15 p.m., Hannalore Zimny was driving her car in an easterly direction on I-84. She was travelling in the extreme left lane. Her mother, Frieda Zimny, was a passenger in the right front seat. At approximately the same time, a car operated by Hiam J. Lundy was proceeding easterly on I-84. At a point just east of the Plainville-New Britain line, Lundy's car passed over an ice-coated bridge and went out of control, running into a snowbank on the right hand side of the highway. As Lundy backed his car out of the snowbank onto the highway, he was struck by an unidentified tractor trailer truck travelling in the right hand lane. This truck skidded out of control and came to rest blocking the right lane and a portion of the center lane of the highway. At the same time, the defendant was operating his car eastbound on I-84, driving in the center lane.

The defendant stresses the following evidence: While driving on I-84, he felt two hard impacts on the rear of his car. The first impact was so hard that the trunk lid on his car popped up, blocking his view of the car that struck him. Approximately ten seconds later, he felt the second of the two blows. After the second blow, his car came to a complete stop on the left hand side of the highway. The Zimny car, which the defendant later learned was the car that hit him, came to rest to the rear of his car near the left side of the highway.

The plaintiff stresses entirely different testimony as follows: As the plaintiff's decedent's car and the defendant's car approached the site of the Lundy collision, the defendant, whose speed exceeded the plaintiff's decedent's, started to pass. The defendant saw that the road ahead was obstructed but nevertheless elected to drive through the obstruction. As he passed the vehicle of the plaintiff's decedent, his car fishtailed and its left rear skidded and struck the plaintiff's decedent's passenger side door. That impact caused Zimny's car to rotate in a counterclockwise direction until its front hit the highway curbing. The defendant's car continued to fishtail until its rear collided with the highway retaining wall. As a result of the impact, Zimny's car came to rest in the left lane of I-84.

Certain other testimony is not in dispute. After the accident, Zimny went around the car to get her mother out because she was concerned about the possibility of leaking gasoline. At this point, two tractor trailers being operated in the right and center lanes of I-84 came on the scene. The tractor trailer in the right lane was owned by Cooper-Jarrett, Inc., and driven by Henry Miller, Jr. As he approached the accident scene, Miller applied his brakes and jackknifed, hitting a van owned by Casson-Matava, Inc., and driven by Dominic A. Angelo. The Angelo vehicle then struck a Pontiac Firebird driven by Stephen H. Bouchner. The Cooper-Jarrett trailer then collided with another tractor trailer owned by Edart, Inc., and driven by John J. McCarthy. The Edart trailer collided with the Zimny vehicle at the moment Zimny was attempting to assist her mother. This collision pinned Zimny between her vehicle and the Edart trailer. The Edart trailer also pushed the Hogan vehicle against the side of a northerly bridge abutment. Fifteen to twenty seconds elapsed between the end of the Hogan-Zimny collision and

                the collision involving the tractor trailer truck and the Hogan and Zimny cars.   The road surface in the area was icy and slippery.   By 7:15 p.m., an eastward moving ice storm had reached the accident scene.   As a result of glare ice, no tire or skid marks were left by any of the vehicles involved
                

I THE COURT'S CHARGE TO THE JURY ON THE RESCUE DOCTRINE

This issue raises the thorny question, not previously considered by an appellate court in Connecticut, as to the application of the rescue doctrine in a comparative negligence situation.

The rescue doctrine was first promulgated by Cardozo, J., in Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437 (1921), in which the court stated: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.... The railroad company whose train approaches without signal is a wrongdoer toward the traveller surprised between the rails, but a wrongdoer also to the bystander who drags him from the path.... The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had...." (Citations omitted.) Id., 180, 133 N.E. 437.

The Supreme Court established the doctrine in Connecticut in the landmark case of Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940). The plaintiff's decedent, the mother of an eight year old daughter, was killed by the engine of the defendant's train. Her death was a result of her running towards the track in an attempt to move away the daughter who was too close to the track. The court concluded that the jury could have found the defendant negligent. It then went on to consider the question of the mother's contributory negligence.

"The question as to contributory negligence on the part of the decedent requires consideration of the so-called 'rescue doctrine,' for only under that doctrine could she be held free from such negligence. It is succinctly stated in the Restatement as follows: 'It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm.' 2 [Restatement,] Torts § 472. In general support of this principle, the following cases, out of many, may be cited: Eckert v. Long Island R. Co., 43 N.Y. 502 [1871]; Wagner v. International Ry. Co., [supra, 232 N.Y. 180, 133 N.E. 437]; Dixon v. New York, N.H. & H.R. Co., 207 Mass. 126, 129, 92 N.E. 1030 [1910]; Perpich v. Leetonia Mining Co., 118 Minn. 508, 512, 137 N.W. 12 [1912]; Bond v. Baltimore & Ohio R. Co., 82 W.Va. 557, 560, 96 S.E. 932 [1918]; see also 3 Elliott, Railroads (3d Ed.) § 1814; note 19 A.L.R.4. The statement quoted contains in itself a limitation, for it only applies where the effort to save is 'reasonable' and it suggests a question as to the elements involved in determining what effort is to be deemed reasonable. The answer to that, so far as it admits of an answer, is that the same standard generally used in testing whether or not an act is negligent is to be applied; that is, the conduct of an ordinarily prudent person in the same circumstances as the plaintiff. 'The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do ... in the presence of such existing peril.' Pittsburg, C., C. & St. Louis Ry. Co. v. Lynch, 69 Ohio St. 123, 131, 68 N.E. 703 [1903]. Among these circumstances "The mere presence of danger and desire to save person or property from injury or destruction will not alone suffice. To venture life where there is no possibility of saving or where the danger is not great or the possibility of loss serious, may go beyond the limit of...