36 Conn. App. 328 | Conn. App. Ct. | 1994
This matter is currently before us on remand from our Supreme Court. Rossi v. Stanback, 230 Conn. 175, 644 A.2d 352 (1994).
The following facts, set out in Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), are pertinent to the resolution of this appeal. “On July 20, 1987, the defendant William H. Stanback was employed as a truck driver for the defendant Savin Brothers, Inc., a construction firm under contract with the state of Connecticut to widen Interstate 91 in Hartford. The dece
“On the day of the accident, Stanback drove onto the dumpsite, made a U-tum, stopped and waited for a signal from Santos. While Stanback got into position, Santos was directing another driver, Willie McDuffie, through his dumping routine. While Stanback was waiting and McDuffie was pulling forward to finish his dump, Rossi walked toward Santos. When Santos finished with McDuffie and turned toward Stanback, he saw that Stanback had begun to back up and was heading directly at Rossi. Santos immediately yelled to both Rossi and Stanback, but neither heard him because of the noise on the site. Santos then ran to McDuffie’s truck and told him to sound his horn, which McDuffie did twice. Stanback did not heed the first warning. Rossi, however, heard the first blast and turned toward Stanback’s truck. As he turned, Stanback’s truck
I
The plaintiffs first claim that the trial court improperly charged the jury as to the applicable standard of care. Specifically, the plaintiffs contend that the trial court refused to instruct the jury in accordance with two of their requests to charge, the combined gist of which was that the degree of care required increases as the risk of harm increases.
In reviewing the plaintiffs’ claim, we must determine whether the jury instructions “gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 281, 640 A.2d 74 (1994). Moreover, “[a] refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. ...” (Citations omitted; internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 47, 646 A.2d 835 (1994).
Here, while the trial court refused to use the exact words of the plaintiffs’ request, it properly instructed the jury that the degree of care required varies with the specific circumstances of a case. Specifically, the court charged that “in circumstances of great danger,
A consideration of the court’s instructions as to this issue, in conjunction with the entirety of the court’s charge, reveals that the trial court properly instructed the jury on the standard of care required of the defendants.
II
The plaintiffs next claim that the trial court improperly charged the jury that, even if it found the actions of Santos to be inappropriate, it could neither use that determination as a basis for finding Savin negligent, nor impute Santos’ actions to Savin.
“ ‘It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [the] complaint.’ ” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994), quoting Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). Count two of the plaintiffs’ complaint alleges that Savin carelessly, recklessly and negligently caused the death of the decedent through its failure to train, advise, or warn its employees, or to provide for an adequate number of employees on the work site. Count two alleges no breach of duty by Santos as a basis for the plaintiffs’ claim against Savin. Rather, it is exclusively limited to the allegedly negligent actions of Savin.
The plaintiffs specifically assert that paragraph 6 (e) of count two permits the jury to impute the negligence of Santos to Savin.
Ill
The plaintiffs’ final claim is that the trial court improperly recharged the jury regarding the duty of Stanback, the driver of the truck, to keep a proper lookout. It is unnecessary for us to review this issue, however, because it has not been properly preserved.
Practice Book § 315
Here, the defendants had requested a jury charge concerning proper lookout and the degree of care required of the driver of the truck. After the trial court failed to give the charge, the defendants took an exception, in response to which the court gave a supplemental
The judgment is affirmed.
In this opinion the other judges concurred.
In Rossi v. Stanback, 31 Conn. App. 703, 626 A.2d 829 (1993), we reversed the judgment of the trial court and remanded the case for a new trial. The plaintiffs had asserted four claims on appeal, the first of which was that the trial court improperly refused to submit separate plaintiffs’ verdict forms for each count of the complaint. Because we agreed with the plaintiffs’ first claim, we did not address the remaining three. Id., 704. The Supreme Court granted certification; Rossi v. Stanback, 227 Conn. 912, 632 A.2d 695 (1993); reversed our judgment and remanded the case for our consideration of the plaintiffs’ remaining claims. Rossi v. Stanback, supra, 230 Conn. 181.
The pertinent requests to charge stated:
“9. ‘As the risk of harm becomes more foreseeable, the duty to foresee that risk increases and the right to assume due care correspondingly decreases.’ In this instance you must determine whether or not it was foreseeable for the Defendant, William Stanback and the Defendant, Savin Brothers, to anticipate individuals or objects behind the dump trucks. In this light, you must consider the standard of care that the Defendants were operating under. That is to say that they testified that a dump truck would not be backed up without the aid of a dump man who at all times stood in the driver’s mirror. If you determine that the risk of an individual being run over by a dump trunk without the aid of a dump man becomes more foreseeable, then the duty to foresee that risk on the part of the truck driver increases and furthermore, the truck driver’s right to assume due care on the part of any individuals in that area correspondingly decreases. Again, where a danger may extend to taking life, reasonable care is very great care.
“10. There has been testimony that the Defendants knew that there was a blind spot behind these trucks. The Defendants testified that they took certain steps to protect individuals who may have been caught in these blind spots behind the trucks. Namely they placed rear view mirrors on the trucks. Furthermore, they placed audible back up signals on the trucks and in addition to that they also had a requirement that the trucks would not back up without the proper signal from the dump man who at all times was to stand in the driver’s rear view mirror. The Defendants are required to know the common qualities and habits of human beings, insofar as they are a
This claim goes to the second count of the plaintiffs’ complaint, which was directed against the defendant Savin only.
The trial court charged the jury as follows: “Now with regard to the complaint, the plaintiffs’ right to recover is limited to the allegations contained in the complaint. This is necessary to maintain a regularity of procedure and to make for just decisions. As a fundamental corollary to this
Paragraph 6 (e) alleges that Savin is liable “in that, it did not adequately instruct its employees including its truck drivers in the recognition and avoidance of unsafe conditions and the regulations applicable to their work environment to control or eliminate any hazards or other exposure to injury insofar as it related to the backing up of its trucks in violation of OSHA Regulation 29 CFR [§] 1926.21.”
Practice Book § 315 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”