RICHARD JUCHNIEWICZ, EXECUTOR (ESTATE OF PATRICIA JUCHNIEWICZ), ET AL. v. BRIDGEPORT HOSPITAL ET AL.
(SC 17345)
Supreme Court of Connecticut
Argued September 5, 2006-officially released January 9, 2007
Borden, Norcott, Katz, Palmer and Vertefeuille, Js.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
Kevin M. Tepas, for the appellees (defendants).
BORDEN, J. The dispositive issue in this certified appeal is whether the Appellate Court properly concluded that the named plaintiff was not entitled to a jury charge, pursuant to
The named plaintiff, Richard Juchniewicz, executor of the estate of his deceased wife, Patricia Juchniewicz, brought this wrongful death action against the defendant physician, Frank Spano.2 After a jury verdict in favor of the defendant, the plaintiff appealed to the Appellate Court. The Appellate Court affirmed the judgment of the trial court. Juchniewicz v. Bridgeport Hospital, 86 Conn. App. 310, 311, 860 A.2d 1275 (2004). This certified appeal followed.3
As set forth in the opinion of the Appellate Court, the jury reasonably could have found the following facts. “On Friday, December 8, 1995, while employed as a nurse at Bridgeport Hospital, the plaintiff‘s decedent became sick with a fever and chills. Because her regular physician was unavailable, she telephoned the defendant. After learning her symptoms, the defendant instructed the plaintiff‘s decedent either to come to his office or to go to the emergency room at Bridgeport Hospital. The plaintiff‘s decedent went to the emergency room and was examined by John Woods, a physician‘s assistant. During the examination, the plaintiff‘s decedent complained of a fever and chills, but did not mention any other specific symptoms. After the examination, Woods telephoned the defendant and informed him that the plaintiff‘s decedent had a 102.5 degree temperature and chills. At that time, the defendant diagnosed the plaintiff‘s decedent with a viral infection. The plaintiff‘s decedent was sent home and instructed to take Tylenol and to update the defendant during the weekend.
“Later that evening, the plaintiff‘s decedent began vomiting and was experiencing pain in her right shoulder. She called her work unit at Bridgeport Hospital
“The plaintiff‘s decedent called the defendant again on Sunday, December 10, 1995, and, in addition to reporting that she was experiencing a continuing fever, nausea and vomiting, reported that she had diarrhea. In response, the defendant prescribed another pain reliever and a suppository for nausea. The plaintiff‘s decedent woke up early on Monday, December 11, 1995, and was rushed to the Bridgeport Hospital emergency room. Several hours later, at 5:55 a.m., she died from an untreated bacterial infection that caused her to suffer toxic shock syndrome.
“In January, 1998, the plaintiff brought a negligence action against the defendant and Bridgeport Hospital. A jury trial commenced in November, 2002. Before and during the trial, the plaintiff claimed that the defendant was inappropriately arguing that the plaintiff‘s decedent had been contributorily negligent, without having affirmatively pleaded contributory negligence.5 Initially, the plaintiff made an oral motion in limine to preclude the defendant from introducing any evidence of negligence of the plaintiff‘s decedent. The court denied the
In his appeal to the Appellate Court, the plaintiff claimed that the trial court improperly failed to instruct the jury that the plaintiff was entitled to a presumption, pursuant to
The plaintiff first claims that the Appellate Court improperly rejected his claim that he was entitled to a jury instruction, in accord with the statutory presumption embodied in
Because the plaintiff‘s claim involves the interpretation of
We begin our analysis with the language of the statute. In its entirety,
Prior to 1931, the common law imposed upon all plaintiffs, as part of the burden of proving their case, the obligation of proving their own freedom from contributory negligence. See, e.g., Mullen v. Mohican Co., 97 Conn. 97, 100, 115 A. 685 (1921). At that time, any contributory negligence on the part of a plaintiff would serve as an absolute bar to his or her recovery. See Hatch v. Merigold, 119 Conn. 339, 341, 176 A. 266 (1935); see also footnote 4 of this opinion. The plaintiff‘s burden of proving the absence of negligence on his or her decedent‘s part proved practically impossible to overcome in a wrongful death action, in which the defendant was free to testify on his behalf but the decedent was deceased and, therefore, unable to offer any evidence of his or her exercise of ordinary care. “The person who has been killed in an automobile accident cannot, of course, give testimony as to the circumstances leading up to it. But the driver who has killed him, if he survives, can. The facts of the accident, in the absence
Such facts gave rise to the case of Kotler v. Lalley, 112 Conn. 86, 88, 151 A. 433 (1930), which involved a hit and run accident that resulted in death. In an action brought by the decedent‘s executor, the trial court granted the defendant‘s motion for nonsuit, concluding that “giving the most favorable construction to the plaintiff‘s evidence, it failed to show . . . reasonable care on the part of the decedent. ” (Emphasis added.) Id., 87. On appeal, this court agreed, concluding that, although the jury reasonably could have found the defendant negligent; id., 87-88; in the absence “of any fact rendering it probable or improbable that the decedent exercised due care . . . the plaintiff‘s proof was fatally defective . . . . ” Id., 90.
The majority in Kotler considered the court bound by the common-law rule that a plaintiff bore the burden of proving that his or her decedent was not contributorily negligent. “In some [states] it is said that where there is no obtainable evidence as to due care on the part of the injured party by reason of his death, a presumption of due care is raised from the natural instinct of self-preservation, and the reason for the rule is said to lie in the injustice of the common-law rule . . . . [W]e have no statutory provision . . . to enforce the obviously just requirement that the burden of proof in this particular class of cases, be put in effect upon the defendant. ” (Citations omitted.) Id., 89-90. The dissent stated: “To permit the ‘hit and run driver,’ under the circumstances present in this case, to escape civil liability for his wrong because the dead cannot speak is to give him the protection of a rule of law, that the plaintiff to recover must prove that the decedent‘s own negligence did not materially contribute to her death, which his own conduct has made inapplicable, and a rule which
In 1931, our legislature enacted the predecessor to
Presumptions are not fungible. To acknowledge that there is a legal presumption does not answer the question posed by the present case, namely, whether the statutory presumption at issue required a jury instruction embodying the presumption. In any case, whether such an instruction is required depends on the purpose of the presumption involved.
As our case law indicates, as to common-law presumptions, “[n]o general rule can . . . be laid down as to the effect of a particular presumption in the actual trial of a case, for this depends upon the purpose it is designed to serve. ” O‘Dea v. Amodeo, 118 Conn. 58, 60, 170 A. 486 (1934). Thus, for example, there are presumptions, such as the presumption of innocence in a criminal case, which “merely emphasizes the burden which rests upon the [s]tate to prove the accused guilty, ” that operate whether the defendant produces evidence or not; id.; presumptions, of convenience, common experience or probability, that operate only until the defendant produces substantial countervailing evidence; id., 61-63; and presumptions, arising out of a party‘s peculiar knowledge, that operate to cast upon the party with that knowledge not only the burden of producing substantial countervailing evidence, but of proving the fact at issue. Id., 63. Some presumptions may require a jury instruction explaining them; others may not.
“A presumption established by statute may fall into one or the other of these categories, or the language used may clearly indicate the effect which it is intended to have. ” Id., 64. Thus,
We have said that “[t]he provisions of [
The question of whether a plaintiff was negligent is not at issue in a case unless the defendant relies on the plaintiff‘s alleged negligence by pleading it as a special defense. LeBlanc v. Grillo, supra, 129 Conn. 384-85. Indeed, in LeBlanc, we held that it was inappropriate for the trial judge, in refusing to set aside the verdict in favor of the plaintiff, to rely on the statute‘s stated presumption of the decedent‘s reasonable care. Id., 386. We said: “The rule still obtains that a plaintiff seeking damages allegedly caused by the negligent act of another will not be permitted to recover if it appears that his own wrongful conduct was a proximate cause of the injury to his person or damage to his property of which he complains. . . . The statute applies, as its predecessor applied, only to contributory negligence,
This is not to say that the first sentence of
The cases in which we have considered the propriety of a jury charge under
Ten years later, we again faced the issue of whether it is appropriate to instruct the jury specifically, with the language of the first sentence of
These cases stand for the proposition that the appropriate method for conveying the effect of
We are not persuaded by the plaintiff‘s argument that these cases are inapposite because in each case the defendant had pleaded contributory negligence. Because the jury charges in these cases included instructions on the elements of contributory negligence as well as the defendant‘s burden of proof, the plaintiff contends, there was no need, as there is in the present case, to “[level] the playing field” by charging on the specific language of the first sentence of
We are also unpersuaded by the plaintiff‘s argument that our reading of
The plaintiff also claims that, even if, in general, the statutory presumption applies only to cases in which the defendant has pleaded contributory negligence, in the present case the defendant in effect used the defense of contributory negligence without pleading it because, through his evidence and arguments, he placed the blame for the decedent‘s death on her and her conduct. In support, the plaintiff points to the following evidence and arguments of the defendant. In his opening statement, counsel for the defendant told the jury that the decedent improperly obtained prescription pain medication and that she misrepresented to the defendant the source of that medication. During the presentation of evidence, the defendant stated that the decedent initially failed to tell him about her shoulder pain and that she later misled him to believe that she was being treated by an orthopedist. Through his expert witness, the defendant also presented evidence on the decedent‘s failure accurately to describe her symptoms. The expert testified that the decedent mistakenly assumed that exercise had caused her shoulder pain. In his closing argument, the defendant‘s attorney said the decedent “made the mistake of misinterpreting or misunderstanding what was going on with her shoul-
The plaintiff had the burden of proving the defendant‘s negligence. By the same token, the defendant had the right to deny that his conduct was negligent. In the present case, the evidence of the various telephone conversations between the decedent and the defendant legitimately served as the basis for the defendant‘s claim that the defendant was not negligent because the decedent gave him inaccurate or incomplete information. The fact that the defendant‘s claim that he was not negligent was based on the decedent‘s conduct in relating her symptoms to him is simply insufficient to give rise to a requirement that the court give a jury instruction embodying the language of the first sentence of
The defendant was entitled, in his denial of negligence, to rely on that evidence as establishing his freedom from negligence, and the trial court was correct in declining to charge the jury as requested by the plaintiff. Indeed, to conclude otherwise in accordance with the plaintiff‘s claim would be to afford the entire statute an effect that it was not intended to have, namely, a probative force rather than merely to place the burden of proof of the plaintiff‘s contributory negligence upon a defendant who has pleaded it.
We disagree with the plaintiff that, in a case such as this one, evidence of the plaintiff‘s conduct may be used against him “without explanation or instruction . . . . ” Because the plaintiff‘s contributory negligence is not at issue unless and until the defendant pleads contributory negligence; see, e.g., Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982); a similarly situated plaintiff may use the rules of evidence, particularly those governing relevance, to prevent the misuse of testimony or inappropriate arguments. See, e.g., Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980) (defendant‘s failure to plead contributory negligence “preclude[s] any inquiry on her part into antecedent acts of negligence by the plaintiff “).9 That does not mean, however, that simply because the evidence may support the defendant‘s claim of his own due care based upon the decedent‘s conveyance to him of inaccurate or incomplete information, the plaintiff was entitled to a jury instruction on the presumption of the decedent‘s due care.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER and VERTEFEUILLE, Js., concurred.
KATZ, J., with whom, NORCOTT, J., joins, concurring. I agree with the majority opinion‘s conclusion that, based on our prior case law,
During the course of the trial, the defendant refuted the allegations of his negligence by relying on the limited information that he had been given by the decedent. That information, however, could have demonstrated not simply that the defendant had acted reasonably based on the information the decedent had given him, but, if credited, also suggested that the decedent had
Additionally, there was evidence that the decedent had thought that her shoulder pain was due to an injury that predated the illness for which she had contacted the defendant. Again, the defendant notes in his opposition to the plaintiff‘s petition for certification that, “whether [the] plaintiff‘s decedent thought that the illness was separate from the shoulder injury could not be construed as contributory negligence unless the decedent herself was a physician. ” (Emphasis added.)
The defendant further claimed in his opposition to the plaintiff‘s petition for certification that, because the only evidence of the decedent‘s chills had come from the plaintiff, the jury, as evidenced by its verdict, must have found the evidence to be not credible. That is arguably one scenario that the jury could have accepted; it also, however, could have believed the plaintiff‘s testimony that the decedent had had these symptoms, but also believed the defendant‘s testimony that the decedent had failed to relate these symptoms to him. Had that been the case, the jury would have been left with the clear impression that the decedent‘s own negligence had contributed to her death. Therein lies the problem; because the defendant had not been required to plead contributory negligence, the statutory presumption of due care under
Accordingly, I would reconsider our denial of the plaintiff‘s petition for certification as to the question of whether the Appellate Court properly concluded that the trial court had not abused its discretion in declining to require the defendant to amend his pleadings to include a defense of contributory negligence and would allow the parties to file supplemental briefs on that issue. In the absence of briefs on the additional issue we did not certify, I must concur separately.