Opinion
No. CV02 0395856 S
January 20, 2006
PLAINTIFF'S MOTION TO SET ASIDE VERDICT #1
Pursuant to Practice Book § 16-35, the plaintiff has moved to set aside the jury verdict in this case on the following grounds:
1. The court erred in admitting hearsay evidence of the tortfeasor's statements to the investigating police officer concerning the plaintiff's speed;
2. The court erred in permitting defense counsel to argue that photographs of the damage to the vehicles could be used by the jury to test the credibility of the plaintiff's testimony regarding his speed prior to the collision;
3. The court failed to charge the jury that the photographs of the collision damage to either vehicle could not be used in any way to infer that the plaintiff was traveling at any particular speed prior to the collision, but could only be used to determine the point of impact between the two vehicles.
On September 19, 2005 the jury returned a verdict for the plaintiff. The jury awarded the plaintiff economic damages in the amount of $60,000 and non-economic damages in an amount of $20,000. The jury found comparative negligence and apportioned liability between both vehicle operators: 65% to the tortfeasor, Reinaldo Aguiras, and 35% to the plaintiff.
A summary of the trial testimony and documentary evidence reveals that the plaintiff was operating a motorcycle in a generally westerly direction on Fairfield Avenue in Bridgeport, near its intersection with Waldorf Street. In this locale, Fairfield Avenue is divided into two westerly lanes by a dotted white line. Waldorf Street is a designated one-way street running off of Fairfield Avenue.
The plaintiff testified that he stopped at a red light a block or two from the intersection with Waldorf Street and then proceeded straight on Fairfield Ave. in the left lane of the two westbound lanes. As he approached Waldorf Ave., there were vehicles parked along the side of the street in the area east of Waldorf Avenue. The tortfeasor, who was apparently in the process of making a u-turn, exited from Waldorf Avenue traveling in the wrong direction, as Waldorf was a one-way street. The tortfeasor, Aguiras, traveled across the two lanes of traffic on Fairfield Avenue and into the path of the plaintiff's vehicle, causing the two vehicles to collide.
The plaintiff also testified that he estimated that he was traveling at a speed of 25-30 miles per hour and intended to take a left-hand turn onto Martin Street, which was approximately 60 feet in the distance. The defendant Liberty Mutual Fire Insurance Company offered no direct evidence of the speed of either vehicle. The parties concede that the court properly refused to charge the jury on statutory speeding because no evidence was introduced at trial regarding the posted speed limit at this location.
Other evidence of speed came from two sources at the trial. First the tortfeasor, Aguiras, made a statement to the investigating officer which was contained in the investigating officer's report, that he did not see the plaintiff's vehicle because the plaintiff "was going too fast." The second reference to speed came in the closing argument of defense counsel, who referenced photographs admitted into evidence by the court. Counsel argued that the damage to the vehicles depicted in the photographs was consistent with excessive speed. The plaintiff objected to the admission of the statement of the tortfeasor contained in the investigating officer's report, as well as the admission of the vehicle damage photographs.
I Legal Standard Regarding a Motion to Set Aside the Verdict
The legal standard for setting aside a jury verdict is well-settled. The trial court possesses the inherent power to set aside the jury's verdict if the court is of the opinion the verdict is against the law or the evidence. Howard v. MacDonald, 270 Conn. 111, 126, 851 A.2d 1142 (2004). The trial court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services, 249 Conn. 523, 534 (1999). The ultimate test is whether given the evidence offered at trial, viewed in the light most favorable to sustaining the verdict; Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983); the jury reasonably could have concluded as it did. The facts must be viewed in the light most favorable to sustaining the verdicts. Id.
There are serious constitutional issues posed by setting aside a jury verdict. This is so because litigants have a constitutional right to have issues of fact decided by the jury. A trial court's decision to set aside a jury verdict can implicate a party's constitutional right to a trial by jury. Young v. Data Switch Corp., 231 Conn. 95, 100-01 (1994); Zarelli v. Barnum, 6 Conn.App. 322, 326, 505 A.2d 25 (1986); Bambus v. Bridgeport Gas Co., 148 Conn. 167, 169, 169 A.2d 265 (1961). "The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court." Zarelli v. Barnum, supra; Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970); Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (1980); Berry v. Loiseau, 223 Conn. 786, 807 (1992); Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974); Barbieri v. Taylor, 37 Conn.Sup. 1, 2, 426 A.2d 314 (1980). Accordingly, a court should move cautiously in deciding to set aside a jury's verdict. "However, it is the court's duty to set aside the verdict when it finds that `it does manifest injustice, and is . . . palpably against the evidence . . ." State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927); Labbe v. Hartford Pension Commission, 239 Conn. 168, 192 (1996). A verdict that is inconsistent or ambiguous should be set aside. Ginsberg v. Fusaro, 225 Conn. 420, 425-26 (1993).
Erroneous evidentiary rulings by the court are an additional reason for setting aside a jury verdict. Melo v. Spencer, 62 Conn.App. 727, 730 (2001). A verdict can be set aside "only if . . . the jury could not reasonably and legally have reached their conclusion . . ." Fleming v. Garnett, 231 Conn. 77, 83 (1994); Foley v. Huntington Co., 42 Conn.App. 712, 725 (1996). When a "verdict rests upon a factual finding contradictory to another finding of the same issue by the trier the judgment cannot stand." (Internal quotation marks omitted.) Calabro v. Calabro, 33 Conn.App. 842, 847, 639 A.2d 1046 (1994); Chapman v. Norfolk Dedham Mutual Fire Ins. Co., 39 Conn.App. 306, 315, 665 A.2d 112 (1995).
"Any motion for a new trial is addressed to the sound discretion of the trial court and will not be granted except on substantial grounds." Burr v. Lichtenstein, 190 Conn. 351, 355 (1983). The basic question for the court is whether upon all the evidence an injustice has been done. Id.
II Admission of Evidence From the Tortfeasor Regarding Plaintiff's Speed
The plaintiff argues that the court erred in admitting hearsay evidence from the tortfeasor regarding the plaintiff's speed at the time of the collision between the plaintiff's and the tortfeasor's vehicles. See Dowling v. Kielak, 160 Conn. 14, 17-18 (1970) (statements made by eyewitnesses of an accident to a police officer are inadmissable hearsay). The plaintiff disagrees with the court's ruling, admitting the statement because the plaintiff "opened the door" to this issue, allowing the statement's admissibility. See Tait's Handbook of Connecticut Evidence Section 1.32.3, 3rd ed. 2001. The plaintiff rather, argues that he did not open the door on statements made to the police officer by the tortfeasor on direct exam of the officer. Plaintiff claims that but defense counsel did when counsel conducted a voir dire exam of the officer regarding the admissibility of the police report. The defendant, in opposition, argues that plaintiff did, in fact, open the door to such testimony by inquiring on redirect examination as to what the officer had been told by the tortfeasor, Aguiras. Additionally, the defendant claims that the plaintiff opened the door to this testimony at an earlier time when the plaintiff placed in evidence certain contents of the police report, including the investigating officer's diagram of the vehicles at the time of their impact, when the officer had testified that the diagram and parts of his investigation were based on the statements of both operators, the plaintiff and the tortfeasor.
A review of the transcript of the re-direct examination of the officer reveals that plaintiff's counsel inquired of the officer as to what the tortfeasor told him occurred. The tortfeasor admitted to the officer that he was in the process of making a u-turn coming out of Waldorf Street. Upon completion of the re-direct examination, defense counsel argued that he should be able to further inquire as to what else the tortfeasor told the officer as the plaintiff had opened the door to this line of inquiry. Over the objection of plaintiff's counsel the court allowed the officer to testify that the tortfeasor told him that he did not see the plaintiff's motorcycle because the plaintiff was going too fast. The officer then admitted he was unaware of the posted speed limit on Fairfield Avenue and that the general posted limit throughout the City of Bridgeport can vary between 25 to 35 miles per hour at different locations.
The plaintiff also placed the police officer's redacted report in evidence containing the diagram of the impact point of the vehicles. The diagram was a reconstruction as the vehicles had been moved from the impact point prior to the officer's arrival at the scene. The officer upon questioning from defense counsel confirmed that the diagram was based upon statements he received from both the plaintiff and the tortfeasor.
"An out-of-court statement offered to establish the truth of the matter asserted is hearsay . . . As a general rule, such hearsay statements are inadmissible unless they fall within a recognized exception to the hearsay rule." (Internal quotation marks omitted.) State v. Rivera, 268 Conn. 351, 360, 844 A.2d 191 (2004); see Conn. Code Evid. § 8-1(3). "A statement made out of court is not hearsay unless it is offered to establish the truth of the facts contained in the statement." (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 254, 856 A.2d 917 (2004); Rogers v. Board of Education, 252 Conn. 753, 767, 749 A.2d 1173 (2000).
While the court agrees that "Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party." State v. Colon, 272 Conn. 106, 186-87, 864 A.2d 666 (2004).
In the present case, it was the plaintiff who offered the police report containing the officer's diagram as a full exhibit. The diagram was based on the statements of the operators, not on any first-hand knowledge of the officer. The plaintiff also elicited testimony of the officer as to the tortfeasor's statement that he was making a u-turn at the time of the accident. The plaintiff cannot now pick and choose which part of the tortfeasor's statement can be used and cannot be used. It would be unfair to the defendant to admit only those portions of the statement which favor the plaintiff's position and to exclude those portions favorable to the defendant.
III Photographs of Damage to the Vehicles
The plaintiff next claims the court erred in permitting defense counsel to argue to the jury that it could infer excessive speed from the crush damage depicted in the photographs of the vehicles involved in the collision. The plaintiff argues that a determination of excessive speed based upon damage to the vehicles required expert testimony. See Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971). The plaintiff states that Toomey is indistinguishable from this case. The court disagrees.
In Toomey, supra, a white Corvette owned by Louis Toomey was traveling east in the eastbound lane of route 15, just east of the Charter Oak Bridge toll station. At a point approximately seven-tenths of a mile from the toll station, the brakes of the car were applied, making skid marks on the road. The skid began in the right-hand lane. The car then veered to the left, began to spin, and struck the center guardrail, about 400 feet easterly from the start of the skid. As a result of the impact, the car split in two. Both the plaintiff and his wife were thrown out of the rear of the front section of the car. The rear section of the car remained in the area of the impact. The front section of the car continued on and finally came to rest against the guardrail on the right side of the highway some 122 feet easterly of the rear section. Both victims were found alive and taken to the hospital. Mrs. Toomey died as a result of her injuries. Id. 206-07. There were no eyewitnesses to the accident, and Mr. Toomey had amnesia and could not recall the events of the accident. Id.
In explaining that expert testimony would be required to determine excessive speed, the Toomey court stated:
We believe that the extent of damage to this type of vehicle, at a high rate of speed, on collision with a metal guardrail, does require expert testimony before a jury reasonably may conclude that the vehicle was traveling in excess of that speed. On the evidence, therefore, the jury could not have concluded that excessive speed was the cause of this unfortunate accident, or if the jury did find excessive speed, it was unwarranted by the evidence presented.
It is certainly clear that there is no evidence pointing to any other cause of the accident. The brakes were suddenly applied and the skid began. As we have pointed out many times, there could be numerous causes for such a loss of control . . . [W]e cannot rule out sudden illness as a possible cause of the accident. Further, with no eyewitnesses, we cannot rule out a sudden emergency . . . Inferences to be drawn from the facts must be reasonable and logical, and must not be the result of guess, conjecture or speculation . . . A conclusion of common-law negligence on the facts of this case could have only resulted from conjecture or guess. The verdict of the jury therefore cannot stand as it applies to common-law negligence.
(Internal citations omitted, internal quotation marks omitted.) Toomey v. Danaher, supra, 161 Conn. 211-12.
The Toomey case is inapposite to the present case. The present case was a two-vehicle collision, not one, as in Toomey. In Toomey, there were no witnesses who could recall the events surrounding the collision. In the present case both the plaintiff's and the tortfeasors' statements regarding the collision were placed before the jury for its consideration of comparative negligence. "Under the circumstances of this case, the jury could infer from the physical damage that the car sustained, that the named plaintiff was traveling at an unreasonable speed given the conditions, and thus, was not exercising due care." McGloin v. Southington, 15 Conn.App. 668, 676, 546 A.2d 906 (1988). Meyers v. Barnes, 2 Conn.App. 485, 488, 479 A.2d 1236 (1984); see also Terminal Taxi Co. v. Flynn, 156 Conn. 313, 318, 240 A.2d 881 (1968). "The amount or type of physical damage that a car sustains in an accident is one of the factors a jury may consider in deciding whether or not due care was being exercised at the time of the accident." McGloin v. Southington, supra, 15 Conn.App. 668, 676, Notarino v. Powers, 6 Conn.App. 300, 505 A.2d 17 (1986); Meyers v. Barnes, supra; 2 Conn.App. 485, 488, 479 A.2d 1236 (1984).
IV Plaintiff's Request to Charge Regarding the Photographs
The plaintiff lastly claims that the court erred in failing to charge the jury that the photos of the collision damage could not be used in any way to infer that the plaintiff was traveling at any particular speed, but that the photos could only be used to determine the point of impact between the vehicles. Plaintiff did request this charge in his Supplemental Request to Charge. However in support of this request the plaintiff cited no legal authority for this request. As discussed herein, this is not an accurate statement of the law. In light of these factors, the court was under no obligation to charge the jury as requested regarding the damage photographs, and the court refused to do so.
Orders
In Motion to Set Aside Verdict #1 the plaintiff has advanced three grounds as to why the court should set aside the verdict in this case. None of the three grounds are sufficient for the court to do so. Accordingly, for the reasons set forth herein, the plaintiff's motion is hereby denied.