DELFINA CUAPIO RODRIGUEZ ET AL. v. STATE OF CONNECTICUT; DAVID TREMPER v. STATE OF CONNECTICUT
AC 35406; AC 35570
Appellate Court of Connecticut
Argued September 16, 2014—officially released February 24, 2015
Beach, Keller and Prescott, Js.
Appeal from Superior Court, judicial district of New Haven, Wilson, J.
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Lorinda S. Coon, for the appellant in both appeals (defendant).
Timothy P. Pothin, for the appellee in AC 35570 (plaintiff), with whom was Marisa A. Bellair, for the appellee in AC 35406 (plaintiff Delfina Cuapio Rodriguez, administratrix of the estate of Modesto Palafox Munoz).
Opinion
PRESCOTT, J. In these two consolidated negligence actions arising out of a serious motor vehicle accident, the defendant state of Connecticut (state) appeals from the judgments of the trial court denying motions to set aside jury verdicts rendered in favor of
The following facts and procedural history are relevant to our consideration of these appeals. These two actions arise out of a motor vehicle accident that occurred on September 2, 2008, at approximately 7 a.m. near exit 41 on the southbound portion of Interstate 95 in Orange. At that time, a tractor trailer owned by B.C. Trucking, Inc., and driven by William Clifford, struck from behind three vehicles that had slowed as they approached metal debris in the left and center travel lanes of the highway near the Marsh Hill Road overpass. The collision killed Munoz, a passenger in a Nissan Quest, and seriously injured Tremper, the driver of a Subaru Outback.4
On or about October 28, 2008, Tremper brought an action against Clifford and B.C. Trucking, Inc., for personal injuries arising out of the accident. In turn, Clifford and B.C. Trucking, Inc., filed an apportionment complaint against the state and Leviticus Morey, a Department of Transportation (DOT) employee who, at the time of the accident, was operating an orange DOT service truck on Interstate 95 near exit 41 as part of his duties with DOT as a service patrol operator. Specifically, Morey was tasked that morning with the responsibility to patrol the interstate to find and remedy unsafe driving conditions such as debris in the road and to assist stranded motorists.
Tremper subsequently withdrew his action against Clifford and B.C. Trucking, Inc., after settling his claims with them and exchanging mutual releases. On April 23, 2009, Tremper initiated a direct action against the state pursuant to
‘‘(a) he stopped and/or positioned defendant’s vehicle on a public highway in a dangerous manner without proper warning and safeguards;
‘‘(b) he made unsafe movements upon the highway incidental to the operation of a state owned motor vehicle;
‘‘(c) he caused defendant’s vehicle to obstruct moving traffic on the highway, making it unsafe for other motorists;
‘‘(d) he placed defendant’s vehicle on the highway so as to direct traffic to the middle and left lanes, thereby creating a dangerous bottleneck;
‘‘(e) he used defendant’s vehicle to close a lane of traffic without proper warnings or safeguards, making the highway dangerous for motorists in the right lane and middle lane of travel;
‘‘(f) he placed defendant’s vehicle on the highway so as to direct traffic toward debris in the road, thereby creating a dangerous bottleneck;
‘‘(g) he failed to follow established safety procedures and/or standards for diverting traffic on the highway while operating a state owned motor vehicle; [and]
‘‘(h) he failed to take reasonable measures to warn motorists of the presence of defendant’s vehicle in the traveled portion of the highway . . . .’’
The state then filed an apportionment complaint against Clifford and B.C. Trucking, Inc. The state’s apportionment complaint alleged that the injuries and damages suffered by Tremper were caused by the negligence of Clifford, and that any damages awarded should be apportioned between the state and the apportionment defendants.
On July 20, 2009, Rodriguez, individually and as the administrator of the estate of Munoz, brought a similar action, pursuant to
In response to the action filed by Rodriguez, on July 2, 2012, the state filed a notice of apportionment against Clifford and B.C. Trucking, Inc., alleging that the injuries suffered by the plaintiff’s decedent were caused by the negligence of Clifford and B.C. Trucking, Inc., and that any damages should be apportioned between the state and those nonparties.6
These two actions were consolidated for trial and tried before a jury.8 At trial, the following facts were essentially undisputed, some of which were disclosed by a grainy DOT video that was shown to the jury.9 Just before the accident occurred, Morey was driving his state vehicle in the right lane of Interstate 95 southbound near the Marsh Hill Road overpass. Morey observed cars taking evasive actions to get around a piece of debris in the roadway. The debris was partly in the center and left lanes of the highway. Morey first pulled his truck onto the right shoulder of the highway beyond the location
At trial, the plaintiffs also called James Bragdon, a traffic engineering consultant, to testify as an expert witness. The state moved to preclude his testimony on the ground that his opinions related to the ‘‘the proper procedure for traffic control related to debris on the highway,’’ rather than the negligent operation of a state motor vehicle. Accordingly, the state argued that Bragdon should not be permitted to testify because his proffered opinions related to allegations of negligence that fell outside the limited waiver of sovereign immunity contained in
The court denied in part the state’s motion to preclude.11 Bragdon then testified in front of the jury regarding fundamental safety principles of temporary traffic control activities that should be employed in circumstances, such as those in the present case, in which debris obstructs a portion of the highway. Bragdon testified that these standards are contained in the Manual on Uniform Traffic Control Devices published by the Federal Highway Administration. Most significantly, Bragdon testified that Morey failed to comply with these traffic control safety standards by positioning his truck in the right lane, and then activating the left directional arrow on the arrow board, thereby directing traffic toward the center lane that was blocked. Bragdon also opined that Morey,
The state filed requests to charge on the scope of the state’s sovereign immunity.12 The state also requested a charge on the proper use of the opinions offered by Bragdon. No jury interrogatories were requested by any of the parties or submitted to the jury.
The jury returned a verdict in favor of Tremper in the amount of $225,000 in economic damages13 and $2.5 million in noneconomic damages, and found that Clifford was 70 percent responsible and the state was 30 percent responsible. The court denied the state’s motion to set aside the verdict, and, after adjudicating other posttrial motions, rendered judgment in favor of Tremper and against the state in the amount of $775,030.
The jury returned a verdict in favor of Rodriguez, in her representative capacity, in the amount of $11,288.91 in economic damages and $4 million in noneconomic damages. Again, the jury concluded that Clifford was 70 percent responsible and the state was 30 percent responsible. The court denied a motion to set aside the verdict and other posttrial motions, and rendered judgment in favor of Rodriguez and against the state in the amount of $1,203,386.67.
The state appealed from the judgments and the denial of its motions to set aside the verdicts in each case, and this court ordered the appeals consolidated. Further facts and procedural history will be set forth as necessary to address the claims of the parties.
I
The state first claims that the court improperly failed to instruct the jury on the proper scope of the state’s sovereign immunity from suit. Specifically, the state contends that the court’s instructions to the jury were incomplete or misleading because they failed to make clear that, under principles of sovereign immunity and the proper construction of
Whether the court properly instructed the jury regarding the scope of the state’s waiver of sovereign immunity in
Decisions of our Supreme Court and this court have repeatedly emphasized that statutes in derogation of sovereign immunity must be strictly construed in favor of the state, and, if there is any doubt about their meaning or intent, they must be given the effect that makes the least rather than the most change in sovereign immunity. Stotler v. Dept. of Transportation, 313 Conn. 158, 166, 96 A.3d 527 (2014) (state highway liability, as legislative waiver of state’s sovereign immunity, must be strictly construed in favor of state); Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 391, 978 A.2d 49 (2009) (extratextual sources regarding legislative intent to waive sovereign immunity may not be consulted because we must interpret any uncertainty as to existence of waiver as preserving sovereign immunity); Morneau v. State, 150 Conn. App. 237, 247, 90 A.3d 1003 (‘‘[e]xceptions to . . . doctrine [of sovereign immunity] are few and narrowly construed under our jurisprudence’’ [internal
In construing
This court affirmed the trial court’s grant of the motion for summary judgment in favor of the state. In so doing, the court in Rivera first recognized that there was no legislative history15 that would shed light on whether the legislature intended that the waiver of sovereign immunity in
This court in Rivera recognized that, under certain circumstances, if the state vehicle caused an accident because of the location it was ‘‘parked incident to travel’’; id., 624; then a plaintiff might be able to establish that the negligence occurred ‘‘when operating a motor vehicle owned and insured by the state . . . .’’
We next examined the scope and meaning of the state’s sovereign immunity waiver in
The state moved to dismiss the action, asserting that the plaintiff’s claim did not fall within the state’s limited waiver of sovereign immunity in
On appeal, this court reversed the trial court’s granting of the state’s motion to dismiss. Id., 536. In reaching its conclusion that the court had improperly granted the state’s motion to dismiss, this court emphasized the following facts: (1) the truck the DOT worker was operating on the date of the accident ‘‘was the means of locomotion he used to follow a designated route of state highway to correct maintenance problems he discovered’’; (2) that ‘‘he parked the truck with its motor running adjacent to the driveway so that he could exit the truck to perform the required maintenance’’ to prevent the water from entering the road; and (3) he had not positioned the truck in a manner to protect himself while he dug a ditch on the shoulder of the road. Id., 541. This court then held: ‘‘On this set of facts, we conclude, as a matter of law, that [the DOT worker] was operating the truck within the meaning of
On remand, the plaintiff prevailed against the state after a jury trial. Allison v. Manetta, 284 Conn. 389, 391, 933 A.2d 1197 (2007) (Allison II). The state again appealed to this court, and our Supreme Court transferred the appeal to itself. Id., 391 n.2. Before the Supreme Court, the state contended that the trial court improperly failed to instruct the jury that if the state truck was being used as a warning device or protective barrier at the time of the accident, the state maintained its sovereign immunity because the truck was not being ‘‘operated’’ for purposes of
The Supreme Court explicitly agreed with the state, concluding that the trial court’s instructions ‘‘did not provide the jury with proper guidance and a clear understanding of the issues’’ because the court failed to explain to the jury that it ‘‘should consider whether the truck was being used as a warning device or as a protective barrier, and, if the jury found that it was, it must find for the [state] because the truck was not being ‘operated’ under
Although our Supreme Court in Allison II did not explicitly overrule this court’s decision in Allison I, it was critical of Allison I in at least two important respects. First, the Supreme Court noted that the Appellate Court’s statement in Allison I that ‘‘as a matter of law . . . [the state employee] was operating the truck within the meaning of
Taken together, this court’s decision in Rivera and our Supreme Court’s decision in Allison II can be distilled into the following legal principles that the trier of fact, in applicable cases, must follow: (1) the state may be held liable pursuant to
The third principle is dictated by logic, principles of statutory construction involving statutes in derogation of sovereign immunity, and the precedent discussed previously in this opinion. A motor vehicle that is being used as a warning device or protective barrier necessarily will need to be driven to and then parked in a location that the state, in the exercise of its discretion and judgment, believes is an appropriate location for the vehicle to serve as a warning device to other motorists or as a protective barrier for its operator, other state employees, or anyone else using the roadways. Accordingly, even if the state employee who uses the truck as a warning device or protective barrier 16 negligently chooses a location to park the vehicle so that it may be used as a warning device or protective barrier at that location, the state is shielded by sovereign immunity. This is necessarily so because such a location is chosen not because it is a convenient or ordinarily appropriate place to park, but because it is believed to be a suitable location so that the vehicle can serve as a warning device or other protective barrier. Finally, negligence claims that arise out of the manner in which a state truck was used as a warning device or protective barrier are also barred by sovereign immunity. For example, if the state places a vehicle in a location and illuminates its arrow board to serve as a
In light of these principles, we turn then to the specific jury instructions given by the court in this case to determine whether they provided the jury proper guidance and a clear understanding of the issues that it was to decide. The court instructed the jury as follows:
‘‘I’m going to talk to you about sovereign immunity . . . and the claims that the plaintiffs have brought against the state of Connecticut. Now, our law provides that as a general rule under the doctrine of sovereign immunity, the state cannot be sued unless by legislative enactment it consents to be sued.
Connecticut General Statutes § 52-556 creates a cause of action against the state and represents a statutory exception to the common-law general rule of sovereign immunity.Connecticut General Statutes § 52-556 provides in relevant part that any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned by the state shall have a right of action against the state to recover damages for such injury. The plaintiffs have alleged that [Morey] was negligent when he was operating the state owned vehicle and therefore have sued the state of Connecticut pursuant to [this statute].‘‘Our law defines when operating a motor vehicle within the context of the statute as follows: Operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another. Thus, the term ‘operation’ can include situations in which the vehicle is parked or standing still even if [Morey] was outside of the vehicle at the time of the accident, provided that, such a position was incident to travel. The term ‘incident’ or ‘incidental’ is defined as being likely to ensue as a chance or minor consequence or occurring merely by chance or without intention or calculation. . . .
‘‘Thus, the plaintiffs must first prove by a preponderance of the evidence that [Morey] was operating the state vehicle on September 2, 2008, pursuant to
§ 52-556 as I have just defined operation for you. If you find that the plaintiffs have proven by a preponderance of the evidence that [Morey] had parked the state owned truck as an activity incident to or related to moving it from one place to another along his designated maintenance route to fulfill his responsibilities, you would then find that he was operating that vehicle under the statute even if [Morey] was standing outside the vehicle at the time of the accident, provided that such a position was incident to travel. However, you must also consider whether the truck was being used as a warning device or a protective barrier. If you find that the state owned truck was being used as a warning device or protective barrier, then you must find that it was not being operated under§ 52-556 and you would then find for the defendant and proceed no further. If you find, however, that [Morey] was operating the truck as I have defined for you, you must then determine whether the plaintiffs have proven by a preponderance of the evidence that [Morey] negligently operated the truck.’’
Although the court’s instructions did inform the jury, pursuant to Rivera, that the state could not be held liable if it concluded that the truck was being used as a warning device or protective barrier, the instructions did not provide proper guidance
Second, the court’s instructions did not account for the possibility that the location at which the vehicle was parked might be a convenient or an ordinarily appropriate place to park along Morey’s designated maintenance route, but also was chosen because its placement there would alert drivers to the danger ahead. Instead, the last two sentences of the instructions quoted previously treated the possibility that the vehicle was ‘‘parked incident to travel’’ as necessarily in conflict with or excluding the possibility that it was also positioned or parked in that location so as to serve as a warning device or protective barrier. It appears that the trial court intended its instructions to be understood in that manner because in its memoranda of decision rejecting the motions to set aside the verdicts, the court stated: ‘‘The defendant’s interpretation of the statute would preclude the jury from finding that the DOT employee was operating a vehicle at any time, even when that employee is behind the wheel, with the engine running and the vehicle stopped incident to travel, if the state could also show that it was being used to slow traffic and/or as a barrier. In other words, in submitting its requests to charge, the defendant sought to have this court adopt a definition of ‘operation’ that would preclude a finding of operation any time a vehicle is parked, had its warning lights on to slow traffic and/or [or is being] used as a barrier, even though the truck was parked incident to travel.’’ Contrary to the trial court’s conclusion, however, this precise result is compelled by the language of Rivera and Allison II, and the principle of statutory construction that statutes in derogation of sovereign immunity must be construed narrowly to effectuate the least, rather than the most, change in sovereign immunity.
Third, the court’s instructions were likely to mislead or confuse the jury on the scope of the state’s sovereign immunity because the specific allegations of negligence on which the court instructed the jury included claims that plainly sought to hold the state liable for negligence in the manner in which it used the truck as a warning device or protective barrier. For example, the court instructed the jury that it could hold the state liable if it found that Morey: (1) ‘‘placed the [state’s] vehicle on the highway so as to direct traffic to the middle and left lanes, thereby creating a dangerous bottleneck’’; (2) ‘‘used the [state’s] vehicle to close a lane of traffic without proper warnings or safeguards, making the highway dangerous for motorists in the right lane and middle lane of travel’’; (3) ‘‘placed the defendant’s vehicle on the highway so as to direct traffic toward debris in the road, thereby creating a dangerous bottleneck’’; or (4) ‘‘failed to follow established safety procedures and/or standards for diverting traffic on the highway while operating a state owned motor vehicle . . . .’’ (Emphasis added.) After reviewing these specific allegations of negligence the court then stated to the jury: ‘‘If you find that [Morey] failed to exercise reasonable care while operating the state owned vehicle, in that he operated said vehicle in one or more of the ways alleged by the plaintiffs, then you may find that [Morey] was negligent while operating the state owned vehicle as set forth in
In other words, this language suggested to the jury that it could find that the state operated the vehicle by the very conduct that would also constitute using the vehicle as a warning device or protective barrier. Most, if not all, of these specifications of negligence read to the jury by the court specifically permitted the jury to hold the state liable for a failure to exercise due care in the manner in which it used the truck as a warning device or protective barrier despite the fact that the court had just finished instructing the jury that it could not hold the state liable if the state truck was used as a warning device or protective barrier. Moreover, the language emphasized in the preceding paragraph, which immediately followed the description of the specific allegations of negligence, suggested to the jury that the vehicle was necessarily being operated when it was used in one or more of the ways alleged by the plaintiffs. Thus, the submission of these improper specifications of negligence was likely to have further confused the jury regarding the legal distinction between the operation of the vehicle (parked incident to travel), which could result in the imposition of liability on the state, and the use of the vehicle as a warning device or protective barrier, which would not permit the imposition of liability.
Fourth, the clarity of these instructions was also significantly undermined by the court’s decision to permit the plaintiffs’ expert witness to opine to the jury that Morey: (1) failed to comply with traffic control safety standards by positioning his truck in the left lane and directing traffic, with the use of his arrow panel, toward the center lane that was blocked; and (2) should have positioned his vehicle directly behind the debris and activated his arrow panel in both directions. The court’s decision to permit the jury to hear expert testimony regarding the negligent use of
Finally, our conclusion that the instructions did not provide the jury proper guidance and a clear understanding of the scope of the state’s sovereign immunity is buttressed by the fact that the jury submitted the following note to the court during deliberations: ‘‘We need clarification of the statute
In sum, because the jury did not receive complete and accurate instruction on the key issue of the scope of the state’s sovereign immunity, we must conclude that the jury was likely misled.
II
We next turn to the state’s claim that the court improperly denied its motions to set aside the verdicts and for judgments notwithstanding the verdicts. Specifically, the state argues that the court should have granted its motions because the evidence submitted to the jury was insufficient to prove that (1) the presence of the state vehicle in the right lane was the proximate cause of the accident and (2) that the vehicle was not being used as a warning device or protective barrier.
Even though we have already concluded that the court improperly instructed the jury on a critical issue in the case, we reach the state’s insufficiency of the evidence claim because, if it were to prevail on this claim, the appropriate remedy would be to remand the cases with direction to render judgments in favor of the state. In light of the deferential standard of review applicable to motions to set aside a verdict and for judgment notwithstanding the verdict, however, we conclude that the court properly rejected the state’s insufficiency of the evidence claims.
The moving party ‘‘must overcome a high threshold to prevail on either a motion for a directed verdict or a motion to set aside a judgment. Directed verdicts are not favored. . . . A trial court should direct a verdict only [if] a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing [a] trial court’s decision [whether] to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . [The trial court] should not set aside a verdict [if] it is apparent that there was some evidence [on] which the jury might reasonably reach its conclusion . . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.’’ (Citation omitted; internal quotation
With respect to the state’s contention that the jury, on the evidence presented, could not have reasonably and legally found that the collisions and injuries were proximately caused by the presence of the vehicle in the right lane, the state asserts that there is no credible evidence that the state’s vehicle was not visible to oncoming drivers such that they would have had difficulty in changing lanes to pass on the left. In so arguing, however, the state invites this court to make credibility determinations and ignore the testimony of at least one of the witnesses, Clifford, who testified, in essence, that he did not have adequate warning of the presence of the state’s vehicle in the right lane. Credibility determinations are, of course, for the trier of fact to make, not this court. See Schoenborn v. Schoenborn, 144 Conn. App. 846, 851, 74 A.3d 482 (2013).
Moreover, one of the plaintiffs’ theories of causation, which is supported by the evidence in the record, was that Morey’s decision to position the truck in the right lane forced vehicles to move toward the partially obstructed center and left lanes, thereby creating a bottleneck, and, thus, was an actual and substantial cause in bringing about the injuries. If Morey had parked the state vehicle in the right travel lane solely incident to travel, in that it was a convenient or an ordinarily appropriate place to park, and did not choose that location so that the vehicle could serve as a warning device or protective barrier, then the jury, if properly instructed in accordance with sovereign immunity principles, legally would have been free to conclude that Morey’s conduct was a proximate cause of the accident and resulting injuries.
Finally, the state contends that the court should have directed verdicts in its favor because, under the facts of the cases, the jury, if it had been properly instructed, logically could have reached only one conclusion, that is, that the state vehicle was being used as a warning device and to provide a protective barrier at the time of the accident. One of the specifications of negligence that was submitted to the jury asserted that Morey caused the state’s vehicle to obstruct moving traffic on the highway, making it unsafe for other motorists. This narrow assertion, if proven, could allow the jury to conclude that Morey parked the vehicle solely incident to travel while he performed his maintenance duties and that it was not positioned as a warning device or protective barrier. Although a large number of witnesses did testify that Morey turned on the left directional arrow before the accident, at least two witnesses testified that they did not recall seeing the directional arrow illuminated. On this record, if the jury credited those witnesses, and if the jury had been properly instructed on the applicable law, it is reasonably possible that the jury could have ultimately concluded that the state could be held liable without violating sovereign immunity. Thus, in light of the deferential standard applicable to review of rulings on motions for a directed verdict, we cannot conclude that the court abused its discretion by denying the motions to set aside the ver-dicts and for judgments notwithstanding the verdicts.
The judgments are reversed and the cases are remanded for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
PRESCOTT, J.
JUDGE OF THE APPELLATE COURT