Case Information
*1 ***********************************************
The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ***********************************************
RACHEL WAGER ALEXANDRIA MOORE ET AL.
(AC 40329) Sheldon, Moll and Seeley, Js.
Syllabus The plaintiff pedestrian sought to recover damages from the defendant for negligence for injuries she sustained when she was struck by a motor vehicle operated by the defendant. After the jury returned a verdict in
favor of the defendant, the trial court denied the plaintiff’s motion to set aside the verdict and rendered judgment in accordance with it, from which the plaintiff appealed to this court. Held: 1. The plaintiff could not prevail in her claim that the trial court erred when
it denied her motion to set aside the verdict and for a new trial, which was based on her claim that there was insufficient evidence to support a finding of contributory negligence, the record having contained ample evidence that the plaintiff was negligent and that such negligence was a substantial factor in causing her injuries: there was evidence that the plaintiff was not in a designated crosswalk at the time of the collision, although there was a crosswalk approximately 750 feet down the road- way that would have been visible to the plaintiff and which she previously had used, that it was dark at the time of the collision and the plaintiff was wearing dark clothing, which the jury reasonably could have concluded would have made it difficult for the defendant to see her, that the plaintiff had ‘‘popped out’’ in front of the defendant’s vehicle, that the area of the collision was flat and straight and that the plaintiff was intoxicated at the time of the collision, from which the jury could have inferred that the plaintiff walked or ran into the path of the defendant’s vehicle and failed to yield the right-of-way to the defendant, that had the plaintiff been paying attention or keeping a proper lookout, she would have seen the defendant’s vehicle in sufficient time to avoid the collision, and that the plaintiff was not exercising reasonable care to avoid harm to herself; moreover, the jury reasonably could have found that the plaintiff’s negli- gence far exceeded the defendant’s negligence, as there was evidence that the plaintiff had consumed approximately nine alcoholic drinks shortly before the collision and that she was captured on camera having difficulty standing and walking, whereas there was evidence that the defendant had consumed one alcoholic drink one and one-half hours before the collision and did not appear inebriated, and the defendant testified that she was not speeding and was paying attention to the roadway. 2. The plaintiff’s claim that the trial court erred in instructing the jury on contributory negligence when such a charge was not supported by the
evidence was unavailing; the record contained sufficient evidence of the plaintiff’s contributory negligence to support the court’s instruction, including evidence that the plaintiff was intoxicated, did not cross at a designated crosswalk and was wearing dark clothing when she suddenly appeared in the roadway. 3. The plaintiff could not prevail on her claim that the trial court improperly failed to instruct the jury on the relevant statutes governing the parties’
respective duties, which was based on her claim that once the court instructed the jury on a pedestrian’s duties pursuant to the applicable statutes (§§ 14-300b [a] and 14-300c [b]), its refusal to charge the jury on the duties that a driver owes to pedestrians pursuant to the applicable statutes (§§ 14-300d and 14-300i) constituted error: the court incorpo- rated the duties of pedestrians identified in §§ 14-300b (a) and 14-200c (b) in its charge on contributory negligence, and the duties of drivers in relation to pedestrians identified in §§ 14-300d and 14-300i in its charge on negligence, the fact that the jury found the defendant 10 percent negligent indicated that the jury understood that the defendant owed a duty of care notwithstanding the plaintiff’s negligence, and, therefore, the court adequately instructed the jury regarding the defendant’s duty to exercise reasonable care; moreover, although the instructions were not a model of clarity, jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to *3 the issues and sufficient for the guidance of the jury, and there was not a reasonable possibility the court’s charge misled the jury. 4. The trial court did not abuse its discretion in denying the plaintiff’s motions
for a mistrial and to set aside the verdict, in which she claimed that she was prejudiced by the admission into evidence of certain improper hearsay evidence during the videotaped deposition testimony of the defendant’s expert toxicologist, M, who commented in the video that the plaintiff had stated that she recalled walking across the roadway, even though the parties did not dispute that the plaintiff did not recall the accident and had agreed that M’s comment would be excluded from the recording shown to the jury; immediately after the recording containing M’s comment was played for the jury, the plaintiff’s counsel corrected M, explaining that his statement was based on a police officer’s mistaken interpretation of a comment by the plaintiff’s mother, M admit- ted that he was mistaken, and the court gave the jury an instruction, which it was presumed to have followed, to ignore any comments indicat- ing that the plaintiff remembered the collision shortly after the jury viewed the recording. Argued February 5—officially released October 22, 2019
Procedural History Action to recover damages for, inter alia, the defen- dants’ negligence, and for other relief, brought to the Superior Court in the judicial district of New London; thereafter, the plaintiff withdrew the action as to the defendant Mitchell College; subsequently, the matter was tried to the jury before Cole-Chu, J. ; thereafter, the court denied the plaintiff’s motion for a mistrial; verdict for the named defendant; subsequently, the court denied the plaintiff’s motion to set aside the ver- dict and rendered judgment in accordance with the verdict, from which the plaintiff appealed to this court; thereafter, the court, Cole-Chu, J. , denied the plaintiff’s motion for articulation. Affirmed.
Cynthia C. Bott , with whom, on the brief, was J. Craig Smith , for the appellant (plaintiff).
Laura Pascale Zaino , with whom, on the brief, was Lewis S. Lerman , for the appellee (named defendant).
Opinion SEELEY, J. The plaintiff, Rachel Wager, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant Alexandria Moore [1] in an action to recover damages for injuries that she sus- tained when she was struck by a vehicle operated by the defendant. On appeal, the plaintiff claims that the trial court erred when it (1) denied the plaintiff’s motion to set aside the verdict on the basis of insufficient evi- dence to support the jury’s finding of contributory negli- gence, [2] (2) instructed the jury on contributory negli- gence when such a charge was not supported by the evidence, (3) failed to instruct the jury on law essential to the plaintiff’s claim regarding the defendant’s negli- gence, and (4) denied the plaintiff’s motion for a mistrial and later motion to set aside the verdict, which were based on the improper introduction of hearsay evidence against her at trial. We disagree and, accordingly, affirm the judgment of the trial court.
The jury was presented with the following evidence on which to base its verdict. At approximately 10:30 p.m. on February 4, 2011, the defendant was driving in the southbound lane on Montauk Avenue in New Lon- don, near the campus of Mitchell College, when her vehicle collided with the plaintiff, a student at the col- lege who was crossing Montauk Avenue on foot when the collision occurred. [3] The plaintiff had started on the east side of the road and crossed the entire northbound lane before, walking westward, she entered the south- bound lane and proceeded to the point where the colli- sion occurred.
The plaintiff was not in a designated crosswalk at the time of the collision, although there was a marked crosswalk approximately 750 feet from the point of impact. The marked crosswalk was visible from the collision site, and a person crossing Montauk Avenue where the plaintiff attempted to cross it could have been able to use that marked crosswalk by walking northward to it on the sidewalk running on the east side of Montauk Avenue. The plaintiff was aware of the marked crosswalk and previously had used it to walk across Montauk Avenue. There were no cars parked on either side of Montauk Avenue at the time of the colli- sion, but snowbanks then lined both sides of the street. At the time of the collision, the plaintiff was wearing a black jacket, dark jeans, and gold boots. The plaintiff was unable to remember anything about the collision or the period of time immediately before it.
The defendant testified that at the time of the collision she was driving to a friend’s house located in New London. She further testified that at the time, she was not speeding and she was not distracted. [4] According to the defendant, she was paying extra attention to the roadway because she was looking for a street sign. The *5 defendant stated that the collision occurred when the plaintiff ‘‘popped out in front of [her car].’’ The defen- dant knew she had hit something because she heard a thump, so she stopped her vehicle. She did not realize her vehicle had hit a person until after she had exited the vehicle and looked back in the roadway. No one else witnessed the collision.
The plaintiff’s accident reconstruction expert, Kris- topher Seluga, testified that Montauk Avenue was flat and straight in the area of the collision and that the line of sight in that area was over 700 feet. He further testified that a person standing where he believed the plaintiff had been at the time of the collision would have been able to see the headlights of an oncoming vehicle prior to deciding whether or not to cross the road. Seluga also testified that the plaintiff should have been able to see the headlights of the defendant’s vehi- cle and detect its presence on the roadway before the defendant would have been able to see the plaintiff.
As a result of the collision, the plaintiff was thrown forward and landed approximately 42 feet south of the point of impact. When the initial emergency personnel arrived at the scene, the plaintiff was unconscious. The plaintiff was transported to Lawrence & Memorial Hos- pital in New London. Later that evening, she was trans- ferred to Yale New Haven Hospital via Life Star helicop- ter due to the severity of her injuries, which included multiple fractures, lacerations, and a traumatic brain injury.
A blood test performed at the hospital approximately thirty minutes after the collision revealed that the plain- tiff had a blood alcohol level of 170 milligrams per deciliter, or .17 percent, which is equivalent to a .15 percent whole blood alcohol content measurement. Charles McKay, a toxicologist, testified that a .15 per- cent whole blood alcohol content measurement from a person of the plaintiff’s size would represent more than nine standard alcoholic beverages consumed in a short period of time. [5] Earlier on the night of the colli- sion, the plaintiff had shared a bottle of rum with six to eight friends in a dormitory at Mitchell College. The plaintiff appeared inebriated by 8:30 p.m., and she had trouble walking and needed help getting across campus. Footage from a surveillance camera on campus showed the plaintiff struggling to walk and stand on her own.
The plaintiff admitted that everything appears slower and her judgment sometimes is impaired when she is intoxicated. McKay testified that as blood alcohol con- centration rises in a person, it can lead to errors in judgment and processing of thoughts, a decrease in motor skills, and an inability to pay attention to multiple stimuli. According to McKay, the plaintiff’s blood alco- hol concentration of .15 significantly would have impacted her cognitive functioning (i.e., her ability to perceive and respond) and her motor functioning.
Sergeant Lawrence Keating of the New London Police Department testified that while speaking with the defen- dant at the scene of the collision, he smelled alcohol on her breath. The defendant informed the police that she had consumed one alcoholic drink—a martini— approximately ninety minutes earlier. The police then administered a field sobriety test, which the defendant passed. One of the defendant’s coworkers, who was with her shortly before the collision, testified that when she last saw the defendant she was acting normally.
In 2013, the plaintiff brought this action against the defendant. The operative amended complaint, which the plaintiff filed on November 13, 2015, alleged various injuries the plaintiff sustained as a result of the collision and that those injuries were caused by the negligence of the defendant in one or more of the following ways: she operated a motor vehicle while under the influence of an intoxicating liquor in violation of General Statutes § 14-227a (a); she operated a motor vehicle in a reckless manner in violation of General Statutes § 14-222; she operated a motor vehicle at an unreasonably high rate of speed in violation of General Statutes § 14-218a; she failed to keep a proper lookout; she failed to properly control her vehicle; she failed to brake; she failed to yield the right-of-way to a pedestrian already in the roadway; she failed to swerve to avoid striking the plain- tiff; she operated her vehicle at an unreasonable speed under the circumstances; and she otherwise failed to drive as a reasonable and prudent driver under the same or similar circumstances.
On March 3, 2016, the defendant filed an answer to the plaintiff’s operative complaint. The defendant also asserted, by way of special defense, that any injuries alleged by the plaintiff were proximately caused by her own negligence. Specifically, the defendant alleged that the plaintiff was negligent in one or more of the follow- ing ways: she failed to utilize the crosswalk in violation of General Statutes § 14-300b (a); she failed to yield the right-of-way to the defendant in violation of General Statutes § 14-300b (a); she left a place of safety and walked or ran into the path of the defendant’s vehicle, causing an immediate hazard to herself, in violation of General Statutes § 14-300c (b); she ‘‘walked upon the roadway while under the influence of alcohol or drugs, rendering herself a hazard in violation of General Stat- utes [§ 14-300c (b)]’’; she was inebriated, intoxicated, or impaired by the consumption of alcohol, and, as a result, walked or ran into the path of the defendant’s vehicle; she failed to stop or wait for the defendant’s vehicle to pass before entering the roadway, although by a reasonable and proper exercise of her faculties, she could and should have done so; she chose to cross the street while her ability to do so was impaired by the consumption of alcohol; she failed to keep a reason- able and proper lookout for vehicles on the roadway; *7 and she failed to be attentive to her surroundings, including vehicles on the roadway. The plaintiff filed a reply generally denying the allegations in the special defense.
Following a six day trial, the jury returned a verdict for the defendant and found the issues in the defen- dant’s special defense in favor of the defendant. The jury found that the plaintiff ‘‘was more than 50 [percent]— specifically 90 [percent]—contributorily negligent in causing the subject accident on February 4, 2011, and her resulting injuries and damages, compared to the 10 [percent] total negligence of the defendant.’’ [6] The trial court denied the plaintiff’s subsequent motion to set aside the verdict and for a new trial. This appeal fol- lowed. Additional facts and procedural history will be set forth as necessary.
I The plaintiff first claims that the trial court erred in denying her motion to set aside the verdict and for a new trial because the evidence was insufficient to sup- port the jury’s finding of contributory negligence. Spe- cifically, the plaintiff argues that there was not suffi- cient evidence to remove the jury’s finding that she was more than 50 percent negligent from the realm of speculation. The plaintiff argues that there was insuffi- cient evidence from which the jury reasonably could have found that the plaintiff’s alleged negligence was ‘‘causally connected to the collision.’’ The plaintiff also contends that the defendant failed to present sufficient evidence from which the jury reasonably could have found that the plaintiff breached a duty of care as speci- fied in the defendant’s special defense. We disagree with the plaintiff and conclude that insofar as the jury’s verdict was based on its finding of contributory negli- gence, the verdict was supported by sufficient evidence.
‘‘A party challenging the validity of the jury’s verdict
on grounds that there was insufficient evidence to sup-
port such a result carries a difficult burden. In reviewing
the soundness of a jury’s verdict, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict.
.
. We do not ask whether we would have
reached the same result. [R]ather, we must determine
. . . whether the totality of the evidence, including rea-
sonable inferences therefrom, supports the jury’s ver-
dict . . . . If the jury could reasonably have reached its
conclusion, the verdict must stand.’’ (Internal quotation
marks omitted.)
Gagliano Advanced Specialty Care,
P.C.
,
‘‘The . . . judgment [will be reversed] only if we find
that the [fact finder] could not reasonably and legally
have reached [its] conclusion. . . . We apply this famil-
iar and deferential scope of review, however, in light
of the equally familiar principle that the [defendant]
must produce sufficient evidence to remove the [fact
*8
finder’s] function of examining inferences and finding
facts from the realm of speculation.’’ (Internal quotation
marks omitted.)
Reyes
v.
Chetta
,
‘‘[I]t is [the] function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experi- ence, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment. . . .
‘‘[P]roof of a material fact by inference from circum-
stantial evidence
need not
be so conclusive as to
exclude
every other hypothesis
. It is sufficient if the evidence
produces in the mind of the trier a reasonable belief in
the probability of the existence of the material fact. . . .
Thus, in determining whether the evidence supports a
particular inference, we ask whether that inference is
so unreasonable as to be unjustifiable. . . . In other
words, an inference need not be compelled by the evi-
dence; rather, the evidence need only be reasonably
susceptible of such an inference. Equally well estab-
lished is our holding that a jury may draw factual infer-
ences on the basis of already inferred facts.
.
.
Finally, it is well established that a [defendant] has the
same right to submit a weak [special defense] as he
has to submit a strong one.’’ (Emphasis in original;
internal quotation marks omitted.)
Procaccini Law-
rence & Memorial Hospital, Inc.
,
To prove contributory negligence, the defendant
must prove that the plaintiff’s negligence was a proxi-
mate cause of or a substantial factor in the resulting
harm. See
Opotzner
v.
Bass
,
In the present case, when the court instructed the jury, it stated in relevant part: ‘‘The defendant’s special defense is that, if the plaintiff sustained any injuries or damages as alleged in her complaint, then said injuries or damages were proximately caused by her own care- lessness and negligence at said time and place, in one or more of the following ways: One, she crossed the street at a place other than the available crosswalk and failed to yield the right-of-way to the defendant; two, she left a place of safety and walked or ran into the path of the defendant’s vehicle, causing a hazard; three, she walked upon the roadway while under the influence of alcohol, rendering herself a hazard; four, she was inebriated, intoxicated, or impaired by the consumption of alcohol and, as a result, walked or ran into the path of the defendant’s vehicle; five, she failed to keep a reasonable and proper lookout for vehicles on the road- way; six, she failed to be attentive to her surroundings, including vehicles in the roadway.’’
First, we address the plaintiff’s assertion that there was insufficient evidence from which the jury reason- ably could have found that her alleged negligence was ‘‘causally connected to the collision.’’ Contrary to the plaintiff’s contention, [7] we conclude that the record con- tains ample evidence that the plaintiff was negligent as alleged in each of the six specifications pleaded in the special defense, on which the trial court charged the jury, and that such negligence was a substantial factor in causing her injuries. Specifically, there was evidence that the plaintiff was not in a designated crosswalk at the time of the collision, although such a crosswalk was located approximately 750 feet down the road. The crosswalk would have been visible to the plaintiff from where she began to cross the roadway, and she was aware of that crosswalk, having used it previously.
Additionally, at the time of the collision, it was dark outside and the plaintiff was wearing dark clothing, which the jury reasonably could have concluded would have made it difficult for the defendant to see her. On the basis of the defendant’s testimony that she never saw the plaintiff and that the plaintiff ‘‘popped out’’ in front of her vehicle, the jury reasonably could have *10 inferred that the plaintiff walked or ran into the path of the defendant’s vehicle and that she failed to yield the right-of-way to the defendant.
Moreover, the jury heard extensive evidence—in the form of expert and lay testimony—of the plaintiff’s intoxication at the time of the collision. The plaintiff’s blood alcohol content was .15 percent approximately thirty minutes after the collision. An individual of the plaintiff’s size would have had to consume nine stan- dard alcoholic drinks over a short period of time imme- diately before her blood was drawn to reach this level of intoxication. The plaintiff admitted that when she is intoxicated, things appear slower to her and her judg- ment can be impaired. Indeed, friends of the plaintiff who observed her prior to the collision stated that she struggled to stand and to navigate campus. [8]
The plaintiff argues that intoxication alone does not
constitute negligence and, therefore, the evidence of
her intoxication is insufficient to support a finding of
contributory negligence. Our Supreme Court has stated:
‘‘Even if [the jury] found [that the plaintiff] was intoxi-
cated, that would not constitute contributory negli-
gence as a matter of law. . . . [T]he mere fact that
[the plaintiff] was intoxicated . . . would not prevent
recovery but its importance in the case would be that
if true it would strengthen the probability of the defen-
dants’ claim [of contributory negligence].’’
Kupchunos
v.
Connecticut Co.
,
Moreover, in
Craig
, the defendant failed to offer evi-
dence to indicate how the intoxication of the plaintiff’s
decedent contributed to the automobile accident at
issue.
Craig Dunleavy
, supra,
Finally, there was evidence that Montauk Avenue was flat and straight in the area of the collision and that a person standing in that area would have been able to see an oncoming vehicle prior to deciding whether or not to cross the road. Thus, the jury reasonably could have concluded that had the plaintiff been paying atten- tion or keeping a proper lookout, she would have seen the defendant’s vehicle in sufficient time to avoid the collision.
On the basis of the evidence presented at trial, the jury reasonably could have found that the plaintiff was not exercising reasonable care to avoid harm to herself as alleged in each of the six specifications alleged in the special defense, as charged by the trial court, and as a result, her negligence was a substantial factor in bringing about her injuries.
Second, we address the plaintiff’s claim that there was not sufficient evidence to remove from the realm of speculation the jury’s finding she was more than 50 percent negligent. We conclude, to the contrary, that the evidence, taken in the light most favorable to sus- taining the verdict, establishes that the jury reasonably could have found that the plaintiff’s negligence far exceeded the defendant’s negligence.
At trial, there was evidence that the plaintiff con- sumed approximately nine alcoholic drinks shortly before the collision and she was captured on a campus surveillance camera having difficulty standing and walking without assistance. The toxicologist testified that the plaintiff’s blood alcohol content was .15 shortly after the collision and that this level of intoxication would have significantly impaired her ability to perceive and respond to her surroundings, negatively impacted her judgment, and resulted in decreased motor skills. By comparison, there was evidence that the defendant consumed one alcoholic drink, one and one half hours prior to the collision, and did not appear to be inebri- ated, as demonstrated by her successful completion of a field sobriety test shortly after the collision. The defendant testified that at the time of the collision she was not speeding and she was paying extra attention to the roadway. Additionally, the jury was presented with evidence that the plaintiff would have been able to see headlights from the defendant’s vehicle before entering the roadway and before the defendant would *12 have been able to see the plaintiff, who was wearing dark clothing at the time.
Whether we would have reached a contrary conclu- sion regarding the relative negligence of the parties had we been seated as the jury is not relevant to our determination in this case. See, e.g., Procaccini v. Law- rence & Memorial Hospital, Inc. , supra, 175 Conn. App. 716 (it is not function of reviewing court to sit as seventh juror when considering claims of evidentiary suffi- ciency). Our inquiry is limited to whether the jury rea- sonably could have reached its finding on the basis of the evidence before it, including any inferences reason- ably drawn therefrom. We conclude, on the basis of our review of the evidence introduced at trial, that the jury’s finding that the plaintiff was more than 50 percent negligent was reasonably supported by the evidence.
II The plaintiff’s second claim is that the court erred in instructing the jury on contributory negligence because the instruction was not supported by the evidence pre- sented at trial. We disagree.
The following additional facts are relevant to the resolution of this claim. On March 24, 2016, during the charge conference, the plaintiff’s counsel objected to a proposed charge on contributory negligence, arguing that there was not sufficient evidence to support such a finding by the jury. The court overruled this objection and instructed the jury on contributory negligence.
‘‘The standard we use in reviewing evidentiary mat-
ters, including the sufficiency of the evidence to submit
a claim to the jury, is abuse of discretion. . . . Accord-
ingly, great weight is given to the trial court’s decision
and every reasonable presumption is given in favor of
its correctness. . . . We will reverse the trial court’s
ruling only if it could not reasonably conclude as it did.
.
. Issues that are not supported by the evidence
should not be submitted to the jury.’’ (Internal quotation
marks omitted.)
Villa
v.
Rios
,
‘‘It has long been recognized that it is the duty of a
pedestrian to exercise reasonable care, not only to
avoid known dangers, but to discover those to which
his conduct might expose him, and to be watchful of
his surroundings. . . . Drivers, however, are not held
to as high a degree of care to anticipate the presence
*13
of pedestrians in the roadway outside of crosswalks.
. . . Indeed, [w]hile a pedestrian may ordinarily cross
a street at any place, it is the law that in doing . . .
so he is bound to exercise care commensurate to the
increased danger incident to being in a place where
pedestrians do not usually go, and, consequently, where
drivers need not take the same precaution in anticipa-
tion of their presence that they are required to take at
regular crossings.’’ (Citations omitted; internal quota-
tion marks omitted.)
Schupp
v.
Grill
, 27 Conn. App.
513, 518–19,
Similarly, ‘‘[t]he question of proximate causation
. . . belongs to the trier of fact because causation is
essentially a factual issue. . . . It becomes a conclu-
sion of law only when the mind of a fair and reasonable
[person] could reach only one conclusion; if there is
room for a reasonable disagreement the question is
one to be determined by the trier as a matter of fact.’’
(Internal quotation marks omitted.)
Coppedge Travis
,
As discussed in part I of this opinion, the record
contains sufficient evidence of each of the six specifica-
tions of the plaintiff’s contributory negligence as
charged by the trial court, including that the plaintiff
did not cross at the designated crosswalk, she was
wearing dark clothing when she suddenly appeared in
the road, and she was intoxicated. See, e.g.,
Schupp
v.
Grill
, supra,
III The plaintiff next claims that the court erred when it failed to instruct the jury on relevant statutes govern- ing the parties’ respective duties. Specifically, the plain- tiff argues that once the court instructed the jury on a pedestrian’s duties under General Statutes §§ 14-300b (a) [9] and 14-300c (b), [10] its refusal to charge the jury on the countervailing duties that a driver owes to pedestri- *14 ans on the roadway under General Statutes §§ 14-300d [11] and 14-300i [12] constituted error. We disagree.
The following additional facts are relevant to the resolution of this claim. On March 21, 2016, the plaintiff filed an amended request to charge regarding the defen- dant’s special defense of contributory negligence. The plaintiff proposed that the court instruct the jury as to the defendant’s specific claims of the plaintiff’s negli- gence and then immediately instruct the jury that ‘‘[t]here [were] three provisions of the Connecticut Gen- eral Statutes which address the duty of a driver to avoid pedestrians . . . .’’ (Emphasis added.) The plaintiff requested that the court read the text of §§ 14- 300c (pedestrian use of road and sidewalks), 14-300d (operator of vehicle required to exercise due care to avoid pedestrian), and 14-300i (vehicle operator to exer- cise reasonable care when near vulnerable user on pub- lic way).
On March 24, 2016, during a charge conference, the plaintiff objected to the court instructing the jury on §§ 14-300b (a) and 14-300c (b), while excluding instruc- tions on §§ 14-300d and 14-300i from the charge, stating: ‘‘I don’t see a specific charge with regard to [§§] 14- 300d or [14-300i], which . . . says that notwithstanding all of the foregoing sections that are actually being charged, [§§ 14-300b (a) and 14-300c (b),] that it doesn’t excuse a driver who fails to use due care, and a driver who fails to use due care is still at fault. So at least . . . minimally, that principle should be charged.’’ The plaintiff emphasized that §§ 14-300b, 14-300c, 14-300d, and 14-300i should be charged ‘‘in principle only.’’ The court stated: ‘‘The reason I am not including [§ 14-300d or § 14-300i] is that, having removed the specific statu- tory references on the other items, I believe that . . . the law . . in [§ 14-300d or § 14-300i is] . . . included in the other instructions. . . . Particularly, in the plaintiff’s described claims.’’
Later on March 24, 2016, the court instructed the jury on negligence and contributory negligence. With regard to contributory negligence, the court instructed: ‘‘[T]he plaintiff, like the defendant, also had a duty to exercise the care which a reasonably prudent person would use under the circumstances. A plaintiff can be negligent if she does something which a reasonably prudent person would not have done under similar circumstances, or fails to do that which a reasonably prudent person would have done under similar circumstances.’’
The court went on to state six possible ways in which the defendant claimed that the plaintiff was contributor- ily negligent: ‘‘One, she crossed the street at a place other than the available crosswalk and failed to yield the right-of-way to the defendant; two, she left a place of safety and walked or ran into the path of the defendant’s vehicle, causing a hazard; three, she walked upon the roadway while under the influence of alcohol, rendering *15 herself a hazard; four, she was inebriated, intoxicated, or impaired by the consumption of alcohol and, as a result, walked or ran into the path of the defendant’s vehicle; five, she failed to keep a reasonable and proper lookout for vehicles on the roadway; six, she failed to be attentive to her surroundings, including vehicles in the roadway.’’
‘‘Our review of the [plaintiff’s] claim requires that we
examine the [trial] court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . While a request to charge that is rele-
vant to the issues in a case and that accurately states
the applicable law must be honored, a [trial] court need
not tailor its charge to the precise letter of such a
request.
.
. If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . 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.’’ (Internal quota-
tion marks omitted.)
State Euclides L.
, 189 Conn.
App. 151, 160–61,
The plaintiff argues that the court ‘‘never instructed the jury in line with § 14-300d that the defendant-motor- ist would not be relieved of the duty to exercise due care to avoid the collision despite the alleged failure to utilize the crosswalk by the plaintiff-pedestrian.’’ The plaintiff further claims that ‘‘[t]he jurors needed to be instructed that even if [the plaintiff] had a duty to cross the street at a particular place which was allegedly breached—despite that circumstance—the defendant . . . still had the duty to exercise reasonable care and would not be absolved of potential liability because of that circumstance.’’
In the present case, the court incorporated the duties of pedestrians identified in §§ 14-300b (a) and 14-200c (b) in its charge on contributory negligence. See part III of this opinion. Likewise, the court incorporated the duties of drivers in relation to pedestrians identified in §§ 14-300d and 14-300i in its charge on negligence. As requested by the plaintiff during the charge conference, the court did not reference these statutes. The court instructed the jury regarding the relevant common law elements of negligence, stating in part: ‘‘[E]ach driver of a motor vehicle has a duty to drive that vehicle in such a way as to avoid reasonably foreseeable harm to other people. Each driver of a motor vehicle has a duty to exercise reasonable care towards others whenever *16 the driver’s actions, together with any reasonably fore- seeable actions of others, make it likely that harm to another will result if the driver fails to exercise that reasonable care.’’ The court went on to provide the jury with additional instructions on negligence as it related to the defendant’s actions.
Moreover, contrary to the plaintiff’s argument that the court failed to instruct the jury on a driver’s duties in relation to pedestrians under §§ 14-300d and 14-300i, the court instructed the jury on these statutes in essence when it stated: ‘‘The law recognizes that a person’s conduct can still be negligent if her conduct involves an unreasonable risk of harm when the conduct is com- bined with the foreseeable conduct of another person, such as the plaintiff stopping her car due to traffic, or someone, a driver, stopping a car due to traffic, or a force of nature.’’ While this instruction did not conform precisely to the language proposed by the plaintiff, it is axiomatic that the court ‘‘need not tailor its charge to the precise letter of such a request.’’ (Internal quotation marks omitted.) State Euclides L. , supra, 189 Conn. App. 161.
The plaintiff argues that the court’s instructions failed to make clear that, even if the plaintiff was negligent in violating any of the pedestrian statutes, the defendant still had a continuing affirmative duty of care. The fact that the jury found the driver 10 percent negligent, how- ever, indicates that the jury understood that the defen- dant owed the plaintiff a duty of care notwithstanding the plaintiff’s negligence.
Mindful of our obligation to construe the court’s
charge as a whole, we conclude that the court ade-
quately instructed the jury regarding the defendant’s
duty to exercise reasonable care. Furthermore,
although the instructions at issue were not a model of
clarity, we are cognizant of the fact that ‘‘[j]ury instruc-
tions need not be exhaustive, perfect or technically
accurate, so long as they are correct in law, adapted
to the issues and sufficient for the guidance of the jury.’’
(Internal quotation marks omitted.)
Matthiessen
v.
Vanech
,
IV The plaintiff’s final claim is that the trial court erred in denying her motion for a mistrial and posttrial motion to set aside the verdict, which were based on the intro- duction of hearsay evidence against her toward the end of the trial during the videotaped testimony of the defendant’s toxicology expert. Specifically, the plaintiff argues that ‘‘the defendant’s introduction of [certain hearsay comments] . . . was highly prejudicial to [her] and deprived her of a fair trial’’ and that the trial court’s *17 instruction relating thereto did not cure the prejudice. [13] We disagree.
The following additional facts and procedural history are relevant to the resolution of this claim. During the trial, the defendant presented testimony of Charles McKay, an expert toxicologist. McKay was deposed prior to trial, and a videotaped recording of his testi- mony was played for the jury during trial on March 23, 2016.
At one point in the deposition, McKay made com- ments that indicated that the plaintiff recalled the colli- sion. Prior to trial, the parties agreed that these com- ments, which were based on hearsay, would be excluded from the recording that was shown to the jury. Throughout the trial, it was undisputed that the plaintiff did not recall the collision. When the recording was shown to the jury, however, it included McKay’s comments indicating that the plaintiff recalled the colli- sion as part of the following exchange between the plaintiff’s counsel and McKay:
‘‘Q. And you therefore have no idea . . . how long [the plaintiff] was in that street that evening before she was hit by [the defendant]?
‘‘A. She said she was walking across the street, but I don’t know how long she was in that process.
‘‘Q. Where did she say she was walking across the street? Where did you get that from?
‘‘A. It was from [the plaintiff’s] deposition that she was walking across the street and she saw the light, [but] thought she could make it . . across the street . . .
‘‘Q. Okay, that was not in her deposition, doctor, with all due respect. You’re getting that, again, from the police report based on a statement that her mother said she made in the hospital that was confused by the police. My question is did you ever hear an indication directly from [the plaintiff] as to what she was doing that night?
‘‘A. Oh, in terms of her activities on the street, no, not in her deposition. She described several things she did back and forth with going to different friends’ rooms and things like that, but she didn’t recall the crash event itself.’’
Immediately after the recording was shown, the jury was excused. When the jury returned to the courtroom, the court instructed the jury as follows: ‘‘[T]here was a statement in the course of Dr. McKay’s testimony that was not admissible, and I need to correct the record in that regard, in this way: It is agreed between the parties that [the plaintiff] has no recollection of any of the events preceding the collision in question. There- fore, you are to disregard any comments or statements attributed to her regarding the collision.’’
Despite the court’s instruction to disregard McKay’s comments about the plaintiff’s recollection of the colli- sion, the plaintiff’s counsel moved for a mistrial, arguing: ‘‘[I]n this kind of situation, an instruction . . . simply is not enough. It was suggested by Dr. McKay that [the plaintiff] . . . may or may not have seen [something] immediately prior to getting hit in the road- way in this case . . . when she has clearly stated time and again that she has no recollection of those events. Dr. McKay’s testimony seemed to suggest she, in fact, did have recollection of the events, and that she some- how saw the defendant’s vehicle in the roadway right . . . before getting hit and saw it speed up and just simply couldn’t make it [to the other side of the street]. . . . [T]his type of evidence, which was agreed to be kept out, is clearly inadmissible in the first place, because it’s hearsay about three times over. It was a statement contained in a police report that both sides agreed was not admissible and should not be allowed in . . . . [T]hat type of misleading evidence is obvi- ously also prejudicial to the plaintiff, intimates that somehow, [the] plaintiff . . . could have made it across the road or darted out into the road and saw the vehicle and was aware of the vehicle . . . . It’s impossible in a situation like [this] . . . to un-ring a bell . . . .’’
The defendant’s counsel responded: ‘‘I think that the remedy . . . agreed upon is sufficient. I don’t think this warrants a mistrial. . . . [The jury] just heard an instruction . . . . They heard [the plaintiff]. . . . Everybody denied any knowledge on the part of [the plaintiff], and I think [the jury] believe[s] her, so I don’t think that they’re not going to listen to this instruction, so I would oppose a mistrial.’’
The court denied the plaintiff’s motion for a mistrial, stating: ‘‘I believe that . . . it’s premature to grant a motion for mistrial, and I don’t regard the agreed three- sentence statement that I . . . read . . . as being the only way to address that. The fact of the matter is that we don’t know whether it’ll have the slightest effect . . . .’’
Thereafter, on March 31, 2016, the plaintiff filed a motion to set aside the verdict and for a new trial pursuant to Practice Book §§ 16-35 and 16-37, in which she argued, inter alia: ‘‘The trial court erred in refusing to grant a mistrial due to the admission of the video- taped statement of Dr. McKay regarding causation, as this testimony relied on three levels of hearsay, and as the parties had agreed Dr. McKay would not testify concerning causation . . .’’ The court denied this motion on April 5, 2017.
On May 18, 2017, the plaintiff filed a motion for articu- lation ‘‘of the decision of the trial court . . . denying her posttrial motion to set aside the verdict and for a *19 new trial . . . .’’ The plaintiff argued, inter alia, that ‘‘the trial court erred in refusing to grant a mistrial when inadmissible, prejudicial hearsay was introduced during the defendant’s presentation of the videotaped trial tes- timony of . . . Dr. McKay.’’ On August 7, 2017, the court denied the plaintiff’s motion for articulation, stat- ing the following with regard to the plaintiff’s claim that the court erred in refusing to grant a mistrial on the basis of McKay’s statement: ‘‘[T]he court perceives no error in refusing to grant a mistrial because unwel- come testimony was included in the video testimony of [McKay] at trial. When the motion for mistrial was first made, the court found the curative instruction to the jury—an instruction to which plaintiff’s counsel agreed—adequate for the reasons stated on the record. The court still perceived no error in denying a mistrial when it was again requested as part of the motion for a new trial because, even in hindsight, the court believes the curative instruction was proper and sufficient.’’
‘‘The standard for review of an action upon a motion
for a mistrial is well established. While the remedy of
a mistrial is permitted under the rules of practice, it is
not favored. [A] mistrial should be granted only as a
result of some occurrence upon the trial of such a
character that it is apparent to the court that because
of it a party cannot have a fair trial . . . and the whole
proceedings are vitiated. . . . On appeal, we hesitate
to disturb a decision not to declare a mistrial. The trial
judge is the arbiter of the many circumstances which
may arise during the trial in which his function is to
assure a fair and just outcome. . . . In [our] review of
the denial of a motion for mistrial, [we recognize] the
broad discretion that is vested in the trial court to decide
whether an occurrence at trial has so prejudiced a party
that he or she can no longer receive a fair trial. The
decision of the trial court is therefore reversible on
appeal only if there has been an abuse of discretion.’’
(Internal quotation marks omitted.)
Mazier
v.
Signa-
ture Pools, Inc.
,
The denial of a motion to set aside the verdict is also
reviewed under the abuse of discretion standard. See
Froom Development Corp. Developers Realty, Inc.
,
‘‘If curative action can obviate the prejudice, the dras-
tic remedy of a mistrial should be avoided.’’ (Internal
quotation marks omitted.)
State
v.
Holley
, 327 Conn.
576, 630,
In the present case, the court did not abuse its discre- tion in denying the plaintiff’s motion for a mistrial and motion to set aside the verdict. Immediately after McKay’s comment indicating that the plaintiff recalled walking across the street, the plaintiff’s counsel cor- rected him, explaining that his statement was based on a police officer’s mistaken interpretation of a comment by the plaintiff’s mother. McKay admitted, during the deposition, that he was indeed mistaken, stating: ‘‘[The plaintiff] didn’t recall the crash event itself.’’ (Empha- sis added.)
Even after the jury heard McKay correct the misstate- ment during his deposition, the court instructed the jury to ignore any comments that indicated that the plaintiff remembered the collision. The court’s instruc- tion was given shortly after the jury viewed the recording, meaning that the jurors did not have an opportunity to ruminate on the comment. Moreover, this court presumes that a jury will follow curative instructions, unless there is a strong probability that it will not do so. See State Boutilier , supra, 144 Conn. App. 876–77. In the present case, the plaintiff failed to point to any indicia that the jury did not follow the court’s instruction to ignore McKay’s comments. Accordingly, we conclude that the court did not abuse its discretion when it denied the plaintiff’s motion for a mistrial and motion to set aside the verdict.
The judgment is affirmed.
In this opinion the other judges concurred. [1] The plaintiff also brought this action against the defendant Mitchell College but withdrew the action as against it. Our references in this opinion to the defendant are to Alexandria Moore.
‘‘[A]lthough Connecticut has adopted the doctrine of comparative negli-
gence; see General Statutes § 52-572h (b); our statutes retain the term con-
tributory negligence. See, e.g., General Statutes §§ 52-114 and 52-572h (b).’’
(Internal quotation marks omitted.)
Stafford Roadway
,