193 Conn.App. 608
Conn. App. Ct.2019Background
- At ~10:30 PM on Feb. 4, 2011, Rachel Wager (pedestrian) was struck on Montauk Ave. in New London while crossing outside a marked crosswalk; collision caused severe injuries and a .15 whole blood alcohol level (.17 mg/dL in hospital test).
- A marked crosswalk was ~750 feet from the impact site and visible from where Wager began crossing; snowbanks lined the street; Wager was wearing dark clothing at night and had previously used the marked crosswalk.
- Defendant Alexandria Moore testified she was not speeding or distracted, smelled of alcohol (one martini ~90 minutes earlier), passed field sobriety tests, and that the plaintiff "popped out" into the road.
- Experts testified the roadway was flat and straight with >700 ft sightlines; toxicologist testified Wager’s BAC and impairment (nine drinks equivalent) would significantly reduce perception/response.
- Jury trial: verdict for defendant; jury found Wager 90% at fault and Moore 10% at fault. Trial court denied Wager’s motion to set aside verdict/new trial and denied mistrial motion after limited hearsay from a videotaped deposition was played and then cured by instruction.
- Appeal raised four claims: insufficiency of evidence for contributory negligence and >50% apportionment; erroneous submission of contributory negligence instruction; omission of driver-duty statutory instructions; denial of mistrial / failure to set aside verdict over hearsay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support contributory negligence and >50% apportionment | Wager: evidence was insufficient to show her negligence caused the collision or that her negligence exceeded defendant’s; any inference was speculative. | Moore: evidence of crossing outside crosswalk, dark clothing at night, intoxication, surveillance showing unsteadiness, and sightline testimony supported causation and heavy comparative fault. | Affirmed. Jury reasonably found Wager negligent and that her negligence was a substantial causal factor; evidence supported 90% allocation. |
| Submission of contributory negligence instruction | Wager: no factual basis to submit contributory negligence to jury. | Moore: multiple evidentiary bases (statutory violations, intoxication, conduct) supported submission. | No abuse of discretion. Trial court permissibly instructed on contributory negligence given the evidence. |
| Failure to instruct on driver-duty statutes (§§14-300d, 14-300i) | Wager: court charged pedestrian statutes but omitted statutory driver duties; jurors needed explicit instruction that driver still owes affirmative duty of care. | Moore: court’s negligence charge encompassed driver duties in substance; jury’s 10% finding shows they understood driver liability still existed. | No error. Court’s overall charge adequately conveyed driver’s duty; instructions need not mirror statute text verbatim. |
| Denial of mistrial / failure to set aside verdict after hearsay in videotaped deposition | Wager: videotaped deposition included inadmissible hearsay that plaintiff recalled the crash; curative instruction was insufficient and prejudice required mistrial. | Moore: misstatement was corrected on the video, expert admitted mistake, court gave curative instruction agreed by parties, and juries are presumed to follow instructions. | No abuse of discretion. Correction during deposition plus prompt curative instruction cured prejudice; no strong showing jury ignored instruction. |
Key Cases Cited
- Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745 (standard for reviewing sufficiency of evidence; construe evidence in favor of verdict)
- Procaccini v. Lawrence & Memorial Hospital, Inc., 175 Conn. App. 692 (permissible inferences from circumstantial evidence; inference vs. speculation)
- Kupchunos v. Connecticut Co., 129 Conn. 160 (intoxication not per se contributory negligence but strengthens probability of it)
- Craig v. Dunleavy, 154 Conn. 100 (intoxication alone insufficient where no link to causal conduct)
- Schupp v. Grill, 27 Conn. App. 513 (pedestrian duty to exercise care when crossing outside crosswalks at night)
- Matthiessen v. Vanech, 266 Conn. 822 (jury instructions need not be exhaustive or verbatim if correct in law and adapted to issues)
- State v. Boutilier, 144 Conn. App. 867 (presumption that juries follow curative instructions; burden on appellant to show otherwise)
- State v. Holley, 327 Conn. 576 (mistrial is drastic remedy; curative instructions preferred when they can obviate prejudice)