HERBERT SHOOK v. ASHLEY BARTHOLOMEW; HERBERT SHOOK v. EASTERN CONNECTICUT HEALTH NETWORK, INC.
(AC 38945)
Appellate Court of Connecticut
Argued March 6—officially released June 20, 2017
DiPentima, C. J., and Mullins and Norcott, Js
(Aрpeal from Superior Court, judicial district of Hartford, Peck, J.)
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Kathleen F. Adams, with whom, on the brief, was Peter J. Ponziani, for the appellants (defendant in each cases).
Alinor C. Sterling, with whom was Emily B. Rock, for the appellee (plaintiff in both cases).
Opinion
The jury reasonably could have found the following facts on the basis of the evidence presented. On November 21, 2012, at approximately 4:45 p.m., the plaintiff exited off of Interstate 84 in Manchester. It was the day before Thanksgiving and traffic was heavy. He stopped at the red light on the exit ramp in preparation to take a left turn onto Deming Street. The intersection is a busy four-way intersection, essentially in the shape of a cross or a plus sign, with many lanes. Some of the lanes of the intersection are for left turns, some for right turns and some for vehicles traveling straight through the intersection. There are traffic signals in the center of the intersection. The plaintiff‘s vehicle, which had exited Interstate 84, was facing north toward Avery Street; running east to west at the intersection is Deming Street. When the left arrow for the plaintiff‘s lane turned green, the plaintiff proceeded slowly into the interseсtion, intending to turn left (west) onto Deming Street. Bartholomew, who was traveling east on Deming Street in her Toyota Camry, hit the plaintiff‘s vehicle directly on the driver‘s side door. Although Bartholomew applied her breaks prior to impact, the plaintiff still sustained serious life-threatening injuries. Several witnesses saw the accident and gave statements to the police and/or provided testimony to the jury. The statements and testimony of those witnesses, varied greatly. Some of the witnessеs stated that Bartholomew ran through a red light, and that the plaintiff had a green light. Other witnesses stated
The plaintiff filed a complaint sounding in negligence against Bartholomew, and, in a separate action, he filed a complaint alleging vicarious liability against Eastern Connecticut Health Network, Inc., as the accident occurred during the course of Bartholomew‘s employment. The defendants each filed answers and the special defense of comparative negligence. In their special defenses, the defendants alleged that the plaintiff had been negligent in several different ways, including, that he entered the intersection while his light was red, that he failed to observe that east and west traffic on Deming Street was crossing in front of him and that it was not safe to enter the intersection, and that he failed to maintain a reasonable lookout for othеr vehicles. The plaintiff denied the special defenses.
The two separate cases that the plaintiff had filed, one against each defendant, later were consolidated for trial, and counsel agreed that the pleadings and the record in one case applied equally to the other case and vice versa. The matter then was tried to a jury over the course of several days.
On November 23, 2015, the defendants submitted a request to charge that included various proposed instructions on comparative negligence. During the on-the-record charging conference, the plaintiff‘s attorney argued that there was no evidence to support a charge on comparative negligence on the plaintiff‘s part. He contended that the evidence demonstrated either that the plaintiff had a red light and ran through it, or that Bartholomew had a red light and ran through it, and that this was the manner in which the сase was tried.
In response, the defendants’ attorney argued: “It‘s the defendants’ position that the evidence does support the issuance of the charge. The jury could find comparative negligence here, even if it found one operator or the other ran the red light, specifically if they found [Bartholomew] went through the red light . . . . [T]he jury could still find—whether it‘s a probability or not, we don‘t know, but it‘s possible they could still find—that, due to the configuration of this intersection, the sightlines аvailable, the opportunity to perceive and react, [that] nonetheless, there is some comparative fault to be apportioned here, even if they found that one operator or the other, in fact, committed negligence per se in running the red light. So it‘s the defendants’ position that the evidence in the case does support the issuance of the charge on comparative negligence.”
The court responded that it recognized that there was a special defense alleging comparative negligence and that the defendants had requested a comparative negligence instruction, but that it did not “remember any evidence at all concerning any of the sightlines.” The court stated that it thought a comparative negligence instruction, wherein the jury could apportion some liability to the plaintiff, might confuse the jury because the case was tried as one in which the only issuе was “who ran the red light.” Additionally, the court stated that it had not “heard anything from counsel, very frankly, either in chambers or in court, that would persuade [it] otherwise . . . .” After some unrelated discussion, the defendants’ counsel stated that he was taking an exception to the court‘s ruling on the comparative negligence instruction.
After the court instructed the jury, the defendants’ counsel again noted his exception. The jury returned a plaintiff‘s verdict, and the defendants filed a motion tо set aside the verdict, which the court denied. On February 23, 2016, the court rendered
I
The defendants claim that the court improperly refused to instruct the jury that it could apportion liability on the basis of comparative negligence as requested in their proposed charge. They argue that there was a “clear record [of] evidence supporting a comparative negligence finding,” and that there are statutes supporting such a finding and a jury charge оn this issue. Additionally, the defendants contend that, even if the plaintiff had the green light, “Supreme Court authority expressly holds that comparative negligence principles apply when the plaintiff operator has the green light and the right-of-way.” The defendants cite to specific evidence in the record, statutes, and Supreme, Appellate and Superior Court case law to support their contentions. The plaintiff argues in part that the defendants failеd to alert the trial court to the applicability of the cases and the statutes they now cite on appeal.
We conclude that the defendants did not present these evidentiary arguments, statutes, and cases to the trial court, and, further, that they failed to comply with the specific requirement in
“Pursuant to
Our decision also is guided by other rules of practice.
As so aptly explained in W. Horton & K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2016–2017 Ed.) § 16-20, author‘s comments, p. 734: “Litigаnts can preserve their appellate rights concerning the judge‘s charge to the jury by filing written requests to charge consistent with the court rules . . . .”
“The purpose of a request to charge is to inform the trial court how a principle of law applies to the facts of the case. The authors advise that a proper format for a request to charge is: (1) state the request, which may or may not refer to the evidence; (2) follow with a paragraph entitlеd ‘citation of authority‘; and (3) follow with a paragraph entitled ‘evidence to which the request would apply,’ if the request itself does not include a reference to the evidence. Counsel often omit references to evidence, a requirement which was added to the rule in 1980, but they do so at their own peril.” (Emphasis added.) Id., § 16-23, author‘s comments, p. 738.
“The Appellate Court noted the requirement that a request to charge must include a citation to the evidence on which it is based in State v. Williams, 59 Conn. App. 771, 778–82, [758 A.2d 400] (2000), rev‘d on other grounds, 258 Conn. 1, 778 A.2d 186 (2001) (noncompliance with parallel criminal rule excused). See also State v. Rudd, 62 Conn. App. 702, [707–708], [773 A.2d 370] (2001). . . . The request should refer the law to the relevant facts, State v. Martin, 15 Conn. App. 58, 65, [544 A.2d 231] (1988), [aff‘d], 211 Conn. 389, 559 A.2d 707 (1989); McGloin v. Southington, 15 Conn. App. 668, 671, [546 A.2d 906] (1988); and requests not applicable to the facts are properly refused. Batick v. Seymour, 186 Conn. 632, 643, [443 A.2d 471] (1982). If the request contains a factual statement involving facts claimed by one party, it should also include the facts claimed by the opposing party on the point. Pickens v. Miller, 119 Conn. 553, 555, [177 A. 573] (1935), and Kast v. Turley, 111 Conn. 253, 258, [149 A. 673] (1930). . . .
“A request is properly refused if it contains an inadequate statement of the law as applied to the facts, State v. Manganella, 113 Conn. 209, 218, [155 A. 74] (1931), if it is argumentative on the facts, Colucci v. [Pinette, 185 Conn. 483, 441 A.2d 574 (1981)], or emphasizes unfairly certain elements of the case, Radwick v. Goldstein, 90 Conn. 701, [706–707], [98 A. 583] (1916), or embodies a hypothetical case, Shields v. O‘Reilly, 68 Conn. 256, 261, [36 A. 49] (1896), or if it is based on the assumption of facts still in dispute, Eckstrand v. Union Carbide Corp., 169 Conn. 337, 342, [363 A.2d 124] (1975), or based upon assumed facts likely to mislead the jury, Miller v. Connecticut Co., 112 Conn. 476, 479, [152 A. 879] (1931), or states some of the facts but leaves out other relevant facts, Bunnell v. Waterbury Hospital, 103 Conn. 520, 528, [131 A. 501] (1925).” (Citations omitted.) 1 W. Horton & K. Knox, supra, § 16-23, pp. 739–40.
In this case, the defendants submitted a written request to charge that contained proposed instructions, each of which contained a citation to a specific section or sections of the Connecticut Judicial Branch Civil Jury Instructions, which are available at http://www.jud.ct.gov/ji/Civil/Civil.pdf
In reaching our conclusion, in addition to Practice Book §§ 60-5, 16-20, 16-21 and 16-23, we also arе guided by our Supreme Court‘s decision in Hall v. Burns, 213 Conn. 446, 569 A.2d 10 (1990). In holding that the trial court did not improperly refuse to charge the jury in accordance with one of the plaintiff‘s requested instructions, our Supreme Court concluded that “[t]he request was defective“; id., 482; because it “did not refer to any evidence and was an abstract proposition of law.” Id., 483. The court explained: “The object in filing a request to charge is to inform the trial court of a party‘s claim of the applicability of a principle of law to the case. . . . Our rules provide that each request to charge should contain a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . . A proper request to charge cannot, therefore, under our practice merely be a statement of an abstract proposition of law . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 482–83; see also Konover Development Corp. v. Zeller, 228 Conn. 206, 214 n.5, 635 A.2d 798 (1994) (“[t]he purpose оf [Practice Book § 16-23] is to require parties to inform the trial court of the manner in which a rule of law applies to a particular case, rather than simply stating an abstract proposition of law“).
In the present case, the defendants cited abstract theories of law in their request to charge with no tailoring of the facts so that the court could ascertain how those theories fit this case. When the defendants’ counsel was given a further opportunity during argument on his request to charge, he told the court that the instruction was warranted because there was evidence in the form of “the configuration of this intersection, the sightlines available, [and] the opportunity to perceive and react . . . .” The trial court then stated that it had no recollection of any evidence regarding sightlines, and that the defendants had not presented anything that would persuade the court that an instruction was warranted.1 Although, on aрpeal, the defendants point to evidence, statutes, and case law that might be relevant to a comparative negligence instruction in this case, that information was not presented to the trial court. The defendants cite no authority that stands for the proposition that the trial court has an obligation to scour the
II
The defendants also claim that the court improperly permitted the plaintiff, over their objection on the basis of relevancy, to introduce character evidence in the form of his driving history. Specifically, the defendants argue that “the trial court allowed the plaintiff to testify that he had only been involved in one other car accident, which occurred approximately twenty years ago, when a car bumped him while he was stopрed at a light.”2 We conclude that this claim is not preserved for our review.3
“[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Citation omitted; internal quotation marks omitted.) Birkhamshaw v. Socha, 156 Conn. App. 453, 486, 115 A.3d 1 (trial objections on ground of relevance failed to preserve for appellate review claim that testimony was improper character evidence), cert. denied, 317 Conn. 913, 116 A.3d 812 (2015).
“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court‘s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Internal
III
The defendants also claim that the court abused its discretion in denying their motion to set aside the verdict. Specifically, the defendants argue: “More particularly, the trial court should have set aside the verdiсt based on the jury‘s failure to consider comparative [negligence], the improper jury charge regarding comparative [negligence] and/or the improper admission of evidence regarding the plaintiff‘s driving history.” We disagree.
“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. . . . In determining whether thеre has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court‘s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. . . . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).
We conclude that our resolution of the defendants’ preceding claims; see parts I and II of this opinion; which form the basis of the present claim, is determinative of the outcome of the present claim. See Kramer v. Petisi, 91 Conn. App. 26, 37, 879 A.2d 526 (2005) (when claimed basis for improper denial of motion to set aside verdict is same error alleged and decided in another part of present appeal, previous conclusion of no error is determinative of outcome of claim), aff‘d, 285 Conn. 674, 940 A.2d 800 (2008); Bolmer v. McKulsky, supra, 74 Conn. App. 510–11 (same). Accordingly, the court did not abuse its discretion in denying the defendants’ motion to set aside the verdict.
The judgments are affirmed.
In this opinion the other judges concurred.