48 Conn. App. 864 | Conn. App. Ct. | 1998
Opinion
The plaintiffs appeal from the judgment of the trial court, rendered in favor of the defendants after a juiy trial, in this negligence action brought by the plaintiffs for injuries suffered when the car in which they were riding was struck by a car driven by the named defendant, Justin Dew. On appeal, the plaintiffs claim that the trial court improperly (1) failed to charge the jury that the defendants “take the plaintiffs as they find them,” and (2) admitted evidence that the named plaintiff physically abused the plaintiff Raymond Olkowski. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On June 20, 1992, at approximately 5:55 p.m., the plaintiffs Chester Olkowski and his son Raymond Olkowski
The plaintiffs alleged that as a result of the collision, they suffered mental and physical injuries, and that the collision was a result of Justin Dew’s negligence. Particularly, the plaintiff Chester Olkowski alleged
I
The plaintiffs first claim that the trial court improperly failed to charge the jury that the defendants “took the plaintiffs as they found them.” At trial, both parties offered evidence that the plaintiff Chester Olkowski had suffered various injuries to his neck and back both prior to and soon after the accident.
The trial court has wide discretion in charging a jury. “It is not error for a trial court to charge the jury in
“Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence . . . .” Tierney v. American Urban Corp., 170 Conn. 243, 250, 365 A.2d 1153 (1976). “The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citations omitted; internal quotation marks omitted.) Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993).
In this case, the plaintiffs concede that the aggravation of a preexisting injury was not a theory of the amended complaint, but rely on the case of Bruneau v. Quick, 187 Conn. 617, 633, 447 A.2d 742 (1982), in support of the position that they were entitled to the preexisting injury charge despite the fact that the aggravation of a preexisting injury was not a theory of the case. In Bruneau, the defendant claimed that the trial court improperly provided the jury with a preexisting injury or “take the plaintiff as you find him” charge because the aggravation of a preexisting injury was not a theory of the plaintiffs case and there had been “ ‘absolutely no testimony which suggested that this condition . . . had been aggravated.’. . .” Id. In Bru-neau, the trial court determined and our Supreme Court
In the present case, on the other hand, the trial court properly determined, and the plaintiffs in fact concede, that there was absolutely no evidence presented that Chester Olkowski’s preexisting back and neck injuries were aggravated or that they had any effect on the claimed injuries from the accident. The plaintiffs offer no support for the claim that the introduction of evidence regarding the existence of prior injuries, without evidence regarding the effect on or connection to the claimed injuries, warrants a preexisting injury charge. See Rubano v. Koenen, 152 Conn. 134, 136, 204 A.2d 407 (1964) (preexisting injury charge appropriate where claim of aggravation of preexisting injury not raised by plaintiff, but trial court heard expert testimony that plaintiff had sustained back injury in accident “with probable aggravation of a preexisting disc pathology at the lumbosacral level”); Parker v. Supermarkets General Corp., 36 Conn. App. 647, 651, 652 A.2d 1047 (1995) (proper for trial court to submit to jury issue of permanency of aggravation of preexisting injury absent medical testimony on subject “as long as the nature and scope of the preexisting injury is revealed to the jury through testimony at trial”).
The evidence presented in this case concerned only the existence of some preexisting injuries to Chester Olkowski’s neck and back, and related primarily to his credibility and to his failure to disclose the existence of any prior injuries to his own physicians or to the defendants during discovery. We conclude, therefore, that the trial court did not abuse its discretion in determining that there was no evidence offered that reasonably would support a finding that a preexisting
The court’s extensive charge on causation included references to the required cause and effect relationship between the accident and the claimed injuries, and a statement regarding the defendant Justin Dew’s responsibility for all injuries proximately caused by his negligence, even unforeseeable injuries. Accordingly, the court’s charge more than adequately apprised the jury of the issues to be determined by them, and the legal guidelines to be applied in making those determinations.
II
The plaintiffs next claim that the trial court improperly admitted evidence of instances of alleged physical abuse by the plaintiff Chester Olkowski against the plaintiff Raymond Olkowski.
On cross-examination, the defendants elicited testimony from the plaintiffs’ witness, Debra LaScala,
“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion. . . . The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).
It is axiomatic that otherwise relevant evidence may be excluded if its prejudicial effect outweighs its probative value. Grayson v. Wofsey, Rosen, Kweskin & Kuri-ansky, 231 Conn. 168, 193, 646 A.2d 195 (1994). As we have previously stated, however, “[ejvidence that is inadmissibly prejudicial is not to be confused with evidence that is merely damaging. ... All evidence adverse to a party is, to some degree, prejudicial. . . . Thus, [t]o be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 806, 614 A.2d 414 (1992).
In response to the plaintiffs’ motion to set aside the verdict, the trial court provided the following reasoning
The judgment is affirmed.
In this opinion the other judges concurred.
The matter was withdrawn before trial as to a third occupant, the plaintiff Debra Bolduc. We refer in this opinion to Chester Olkowski and Raymond Olkowski as the plaintiffs.
A review of the plaintiffs’ claims is not precluded by the general verdict rule. Blancato v. Randino, 33 Conn. App. 44, 46-47, 632 A.2d 1144, cert. denied, 228 Conn. 916, 636 A.2d 846 (1993).
The defendants elicited a variety of evidence through both cross-examination of Chester Olkowski and direct examination of Joseph Schlaffer, a chiropractor who treated Chester Olkowski, that Chester Olkowski had received medical treatment for injuries to his neck and back that occurred prior to the automobile accident. Specifically, the defendants produced evidence that Chester Olkowski was injured lifting a snowmobile sometime in the late 1970s, moving a refrigerator in 1980 or 1981, in an accident at work where a file cabinet fell on him in 1989 and moving tables for a Christmas party at work in 1990. The defendants also elicited evidence that Chester Olkowski was treated for an injury to his neck in an accident involving a horse soon after the automobile accident.
In addition, the plaintiffs introduced into evidence a letter dated April 19, 1994, from John Rayeroft, one of Chester Olkowski’s physicians, stating that 5 percent of Chester Olkowski’s 15 percent permanent partial disability to his neck was a result of preexisting cervical spondylosis.
The plaintiffs provided the court with the following request to charge: “The plaintiffs are entitled to recover full and complete compensation for all of their injuries and damages, and the effects caused by or proximately resulting from the defendants’ negligence. The defendants take plaintiffs, Chester A. Olkowski and Raymond Olkowski, as they find them. The defendants are chargeable with all of the results of the injuries proximately caused by their negligence, and the defendants cannot now excuse these results by saying that the plaintiffs had preexisting conditions, which would make them suffer more and longer or cause them to be more severely injured, than they would otherwise have been. . . . The defendants must take the victims as they find them. . .
The court’s charge to the jury regarding causation stated in part: “It is elementary that in a negligence case such as this one, the causal relation between the defendant’s alleged wrongful conduct and the plaintiffs’ injuries must be established in order for the plaintiffs to recover damages. . . . [I]f you find that the accident was a substantial factor in bringing about the injuries to the plaintiffs, then you will find that the accident was a proximate cause of those injuries. . . . The plaintiffs are entitled to recover for all damages proximately caused by the defendants’ wrongful acts, whether
LaScala, whose last name was Bolduc at the time of the accident, is the mother of Raymond Olkowski and the former wife of Chester Olkowski. She was a passenger in Chester Olkowski’s vehicle at the time of the accident and was a plaintiff in the original action. See footnote 1.
LaScala testified that Raymond suffered physical abuse by his father on many occasions in the year prior to the accident. She stated that Raymond was hit in the face, chest and head. She further testified that she was aware of the stress in Raymond’s life prior to the accident, that she had taken him to see a physician regarding headaches prior to the accident, and that