Opinion
No. CV 065007488
December 11, 2008
MEMORANDUM OF DECISION
Articulation: Decision Not to Instruct Jury on Special Defense
This memorandum articulates the reasoning of this court in deciding not to charge the jury on the special defense. This reasoning was communicated to counsel earlier on December 10, 2008, via email.
The defendant filed a Special Defense of Contributory Negligence in this action Pursuant to that defense, the defendant claimed, inter alia, that: "any damages or injuries alleged to have been sustained by the Plaintiff were the result of her own negligence and carelessness." During the charge conference held on December 9, 2008, the court considered the applicability and appropriateness of a charge on Contributory Negligence, in light of the evidence that had been introduced during the trial. For reasons which will be explained in this Memorandum of Decision, the court concluded that a Contributory Negligence charge was unsupported by the evidence.
In the instant matter the defendant and the plaintiff were involved in a three-car collision. The uncontested facts adduced at trial established that the defendant rear-ended the plaintiff on December 4, 2004 on Dixwell Avenue, in Hamden, Connecticut. The plaintiff was driving the middle car in a line of cars that made contact with one another. The defendant was to the rear of the plaintiff. The plaintiff was behind another car. Neither the passenger nor driver of the car directly in front of the plaintiff was involved in this case, either as a witness or a party.
The sequence of events was disputed at trial. The plaintiff alleged that she stopped when the car in front of her stopped and was rear-ended and pushed into the car in front of her. The defendant's argument was that the plaintiff hit the car in front of her before he impacted with her rear.
The plaintiff testified that she remembered nothing about the accident other than the one loud rear-end collision with the defendant. The defendant testified that he only observed the impact between his car and the plaintiff's; and that he had no information or knowledge about what happened between the plaintiff and the car in front of her. The plaintiff and the defendant were the only witnesses who testified during the trial about negligence.
Although the defendant asserted a Contributory Negligence defense, he did not contend that the plaintiff's negligence caused the collision between the defendant and the plaintiff. Rather, the defendant argued that the plaintiff's negligence caused the collision between the plaintiff's car and the car in front of her; and that this collision contributed to causing the plaintiff's injuries.
The Special Defense of Contributory Negligence does not seem applicable to this case, given the alleged and proven facts. However, the defendant properly asserted a claim that the plaintiff's negligence in the other collision with the car in front of her might entitle him to an apportionment of liability. Apportionment is appropriate when more than one negligent act is alleged to be responsible for causing injury. See, § 52-572h. "The legislative policy of § 52-572h is to apportion liability for damages between joint tortfeasors based on the negligence of each . . ." Martanis v. Liberty Mutual, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 99-0065733 (February 8, 2002, Nadeau, J.) citing Collins v. Colonial Penn. Ins. Co., 257 Conn. 718, 730-32, 778 A.2d 899 (2001).
Were the plaintiff a passenger in her own vehicle, with another person driving, the defendant would have been able to make a claim for apportionment against the driver for injuries suffered by the plaintiff. Therefore, it is only logical that the defendant can similarly make a claim against the plaintiff for apportionment. The hook upon which the defendant must hang his apportionment claim is negligence, whether it be the alleged negligence of the plaintiff or of another driver. Therefore, although this court believes that the appropriate Special Defense should have been a Comparative Negligence claim, rather than a Contributory Negligence claim, the naming of the defense is largely irrelevant for purposes of this discussion.
What is more relevant is the evidence, or lack of evidence, supporting a claim that the plaintiff's negligence proximately caused some or all of her injuries. The defendant's position at trial and even during closing arguments was that the mere fact that there was a collision between the plaintiff's car and the car in front of her, required a reduction in liability to the defendant. In other words, the defendant posited that the jury should be able to reduce the damages for which he is responsible because there was another, simultaneous or almost simultaneous collision. This is not the law in Connecticut.
Evidence of a collision, alone, is insufficient to support a claim of negligence. See, Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007). In Winn, as in the instant case, the alleged negligent driver was the only eyewitness to the collision who testified at trial. The defendant in Winn testified that he did not recall the accident or how it occurred. The Supreme Court upheld the finding that the fact that a collision occurred was not enough to support a finding of negligence, even when there was also evidence that the defendant-driver had been speeding through the intersection prior to the collision. Similarly, the Appellate Court recently re-iterated this rule, that evidence of a collision, even a rear-end collision, is not sufficient to support a finding of negligence. Schweiger v. Amica Mutual Ins., 110 Conn.App. 736, AC 28644 (October 7, 2008). The court in Schweiger concluded that the only evidence relating to the negligence claim was that there was a rear-end collision in which the defendant's vehicle struck the plaintiff "with some force" and that this was not enough to support a finding of negligence.
In the instant action, the only evidence that was introduced relating to the plaintiff's negligence was that there was contact between the plaintiff's car and the car in front of her. Unlike in Winn or Schweiger, there was no evidence of the plaintiff's driving before the collision. Nor was there evidence regarding the nature of the contact between the plaintiff's car and the car in front of her (whether it was light impact, moderate impact or heavy impact). Therefore, despite the fact that the defendant appropriately raised the issue of the plaintiff's negligence, he failed to present any evidence of negligence and is not entitled to a jury charge on Comparative Negligence.
There was some discussion during the jury charge conference regarding whether a special defense was required or not. The crux of the defendant's argument seemed to suggest that he was disputing that his collision proximately caused the injuries that the plaintiff suffered. As noted above, however, this court finds that the gist of the defendant's argument implicates issues surrounding apportionment, rather than merely proximate cause. Although there were arguably two collisions at issue in this case, they were so close in time as to constitute one event for purposes of this litigation. Although there were at least three cars involved, and possibly two collisions, there was but one event.
Although not directly applicable to this matter, the discussion in Martanis v. Liberty Mutual Ins., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 99065733 (February 8, 2002, Nadeau, J.) regarding "Number of Accidents," provides an interesting context for considering the issue of multiple collisions within one accident or event.
Apportionment is only appropriate among negligent tortfeasors. The defendant introduced no evidence to establish that the plaintiff was negligent in the operation of her motor vehicle on December 4, 2004. Therefore, the defendant is not entitled to a Jury Charge on his Special Defense. During the trial, the defendant admitted negligence. Therefore, the court only submitted to the jury for their consideration, issues of proximate cause and damages.