No. CV05 4005973 S
October 17, 2008
MEMORANDUM OF DECISION MOTION TO SET ASIDE THE JURY'S VERDICT
This matter involves a motor vehicle accident which occurred on February 21, 2003 at approximately 5:09 a.m. on Route 7, Danbury Road in Wilton, Connecticut. The plaintiff alleged that she was proceeding in a northerly direction. The defendant was operating her vehicle in a northerly direction, as well, directly behind the plaintiff's vehicle when the defendant's vehicle struck the rear of the plaintiff's vehicle, causing the plaintiff to sustain injuries and damages.
The plaintiff alleged that the defendant was negligent in the operation of her vehicle in one or more the following ways:
a. Failed to travel a reasonable distance apart from the car in front of her, in violation of Connecticut General Statutes § 14-240;
b. Failed to keep a proper lookout for other motor vehicles upon the highway;
c. Failed to apply her brakes in time to avoid a collision . . .;
d. Failed to turn her vehicle to the left or right so as to avoid a collision;
e. Failed to have her vehicle under proper and reasonable control;
f. Was inattentive to her surroundings;
g. Was operating her vehicle at an unreasonable rate of speed . . .
The plaintiff further alleged that her injuries and damages, as set forth in her complaint, were a direct and proximate cause of the defendant's alleged negligent operation of her vehicle. In response to these allegations of negligence, the defendant filed her answer denying all of the allegations of negligence. The defendant did not file any special defenses alleging comparative negligence by the plaintiff.
The jury trial commenced on May 14, 2008. During the course of the trial, testimony was received by the defendant, Alyse Nathan, Wilton Police Officer John Godfrey, the plaintiff, Giovanna Nuzzo, Michael Nuzzo, Dr. Propper, and Dr. Cassels. For the purposes of this motion the testimony of the plaintiff, defendant and Officer Godfrey is relevant, as to the allegations of negligence and the operation of the respective vehicles by the plaintiff and the defendant. It is noted that the police report of the investigating police officer from the Town of Wilton was entered into evidence as a full exhibit. Officer Godfrey was not the investigating police officer. Officer Godfrey was in charge of record keeping for the Wilton Police Department. His testimony in this case was limited to explaining various entries and notations on the police report copy, such as codes for various boxes checked on the face of the report copy.
Following the completion of evidence, the court instructed the jury on the following issues:
1. Common-law negligence and reasonable care and forseeability;
2. Keeping a vehicle under reasonable and proper control, including the application of brakes;
3. Failure to steer left or right to avoid a collision;
4. Failure to keep a proper lookout;
5. Common-law unreasonable speed;
6. Statutory negligence;
7. Failure to drive a reasonable distance apart, General Statutes § 14-240;
8. Proximate cause.
Additionally, because the defendant testified that she skidded on the road surface prior to striking the defendant's vehicle, the court charged as follows:
"There has been evidence by way of the defendant's testimony that she skidded on the road surface prior to striking the plaintiff's vehicle. I instruct you that the mere fact that the defendant's vehicle struck the rear of the plaintiff's vehicle is not sufficient to establish liability or negligence on the part of the defendant. The fact that the defendant's vehicle skidded is not in itself the basis for a conclusion that the defendant driver has been guilty of negligence. Consider all of the evidence in the case to determine whether or not the defendant was negligent in one or more ways alleged by the plaintiff in the plaintiff's complaint."
The jury returned a defendant's verdict on May 19, 2008. While no interrogatories were submitted to the jury, the jury did indicate in the presence of the court, the plaintiff and legal counsel for the parties that the verdict was based on the jury's finding that the defendant was not negligent in any one or more of the ways alleged by the plaintiff. The jury, therefore, never considered the issues of the plaintiff's alleged injuries and damages.
No interrogatories were requested by either party. However, following the delivery of the verdict and it's acceptance by the court, the jury in response to the court's comments, indicated by a nodding of their heads that their verdict was based on the issue of negligence and not injuries or damages. That the jury found the defendant was not negligent is not contested by the parties.
The plaintiff, pursuant to Practice Book § 16-35 has moved to set aside the jury's verdict for the defendant which was rendered on May 19, 2008. The plaintiff claims that the jury's verdict was contrary to the evidence and contrary to the law. The plaintiff argues that the evidence overwhelmingly supported the plaintiff's allegations that the defendant was negligent, and the defendant's negligence caused the motor vehicle collision which was the subject of the trial in question. The defendant objects to the motion to set aside the jury's verdict arguing that the evidence supported the verdict and that the jury could have reasonably and legally reached its conclusion. Additionally, the defendant argues that the verdict does not so shock the sense of justice as to compel the conclusion that the jurors were influenced by partiality, prejudice or mistake.
Legal Standard Regarding a Motion to Set Aside the Verdict
The legal standards for setting aside a jury verdict are 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, 733 A.2d 197 (1999).
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, 614 A.2d 414 (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, 682 A.2d 490 (1996). A verdict that is inconsistent or ambiguous should be set aside. Ginsberg v. Fusaro, 225 Conn. 420, 425-26, 623 A.2d 1014 (1993).
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, 646 A.2d 1308 (1994); Foley v. Huntington Co., 42 Conn.App. 712, 725, 682 A.2d 1026 (1996). "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. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). The basic question for the court is whether upon all the evidence an injustice has been done. Id.
The defendant was the first witness, having been called by the plaintiff. In her testimony, the defendant stated that on the morning of the accident, she noticed ice and salt patches on the ground. She testified that she was one to two car lengths behind the plaintiff's vehicle. She noticed that there was a red traffic light ahead, and she noticed the brake lights of other vehicles in the line of traffic were on. When the defendant applied her brakes she stated that she "slid" or "skidded" into the plaintiff's vehicle very quickly. She testified that she didn't swerve left or right, and there was no testimony that she attempted to turn to avoid the collision. She described the period of time from when she applied her brakes to when she struck the plaintiff's car as very quick. Upon further examination, she stated that she did not know what she "slipped or skidded" on, but there must have been something on the roadway surface which made her slide or skid. She also testified that she did not observe any substance on the road surface area where she slid and that other cars behind her were able to stop in time to avoid colliding with her vehicle. She testified that she was driving at a slow speed, yet upon collision her air bags were deployed, and her car had to be towed from the scene. The only evidence of adverse weather or road conditions offered by the defendant was a weather report indicating a substantial snow fall four days prior to the subject accident, which made no mention of any road conditions on the date of the subject accident.
Officer Godfrey, although not the officer dispatched to the scene, explained the police report of the investigating police officer. Restated that the police report indicated that at the time of the accident the road conditions were dry and the weather was clear. The police report made no mention of ice, salt or sand or any substance upon the surface of the road.
The investigating police officer was out of state at the time of the trial.
The plaintiff, in her testimony, stated that the road conditions were dry, as well, and that the traffic flow was heavy. She also stated that there was no ice or salt on the road surface and that she had no problem slowing or stopping her vehicle, prior to being struck from behind by the defendant.
The plaintiff argues that given the court's jury instructions on common-law and statutory negligence; the plaintiff's various claims as to the defendant's negligence; the overwhelming weight of the evidence; and the lack of proof regarding any substance on the road surface, the jury's verdict for the defendant is contrary and inconsistent with the evidence. The plaintiff argues that whether the defendant skidded or not, she was negligent in causing the collision in at least one or more ways alleged in the plaintiff's complaint.
The plaintiff also argues that subsequent conversations with certain jurors by plaintiff's counsel reveals that the jury heavily relied on the fact that the police officer did not cite the defendant for any violations, and thus, the jury relied on facts not in evidence. To compound this problem, the plaintiff further states that this is erroneous, in that the defendant was found at fault by the investigating officer. The court will not consider this argument by the plaintiff. Practice Book § 16-34 states as follows:
"Upon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror's testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached."
The defendant argues that a rear-end collision, in and of itself, does not constitute negligence. O'Brien v. Cordova, 171 Conn. 303, 370 A.2d 933 (1976); See Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741-42 (2008) (directed verdict for defendant); see also Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317-18, 240 A.2d 881 (1968) ("additional evidence, beyond the fact that there was a collision, existed from which the court could conclude that there [was] little doubt about the manner in which the accident occurred." Id., 317.)
The defendant argues that the plaintiff's argument is largely based on conjecture and attempts to shift the burden of proof to the defendant and in the present case the plaintiff has failed to sustain her burden of proof that the defendant was negligent. It is true, as the defendant argues, that the mere fact that a rear-end collision occurred is insufficient to prove the defendant's negligence. While the plaintiff did not see the defendant operating her vehicle before the collision and realized she had been struck only when the impact occurred, she has testified that there was no sand, ice or salt on the road surface.
However, sufficient evidence was elicited from the defendant, herself, to remove the issues of negligence and proximate cause from the realm of conjecture, speculation or surmise. "A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation." (Internal quotation marks omitted.) O'Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976). The defendant was called by the plaintiff as a witness. The defendant testified that she was aware of the heavy flow of traffic and saw the plaintiff's vehicle and the red light ahead. The defendant also testified that she was aware of brakes being applied by other vehicles because she could see their brake lights were on. She also testified that she was fearful of a slippery road surface. She was driving one to two car lengths behind the plaintiff's vehicle. She testified that she applied her brakes and slid into the rear of the plaintiff's vehicle, causing her own vehicle's air bags to deploy. She also testified that the damage to her auto required it to be towed from the scene of the accident. She admitted she did not know what substance, if any, was allegedly on the road surface that caused her vehicle to slip or slide. She also admitted that she did not inspect the road surface after the collision for the presence of any ice, sand or salt.
Given the defendant's own version of the manner in which the collision occurred and the lack of any allegations regarding comparative negligence by the plaintiff, the court finds that jury's verdict was incorrect in that it was contrary to the evidence presented at trial and contrary to the law stated in the trial court's jury instructions. The defendant introduced the topic of a slippery road surface into evidence as an explanation of why her vehicle slid. The defendant requested a jury instruction on skidding. Yet, the defendant was unable to present any evidence of a slippery substance on the road surface. This was not a shifting of the burden of proof to the defendant as this explanation was offered by the defendant as to why she slid into the plaintiff's vehicle.
It is inconceivable that given the defendant's testimony, the plaintiff's testimony and the contents of the police report that the jury determined that the plaintiff did not prove at least one allegation of negligence as charged by the court. There was no evidence of any slippery substance on the road. The evidence showed that the road was dry and the weather was clear. Despite the defendant's awareness of the red light, the heavy traffic, and the lighted brake lights of other vehicles, the defendant drove her vehicle into the rear of the plaintiff's vehicle. The plaintiff proved negligence by the defendant and that the defendant's negligence was the proximate cause of the collision. There was sufficient evidence as to how the accident happened. The jury heard what the defendant saw, and evidence of physical facts or lack thereof, which were introduced by the testimony of the defendant, the plaintiff and the report of the investigating officer. There is little doubt about the manner in which the accident occurred. The evidence was more than adequate to warrant the jury finding by a fair preponderance of the evidence that the defendant was responsible in causing her car to take the course it did when it struck the rear of the plaintiff's vehicle. Terminal Taxi Co. v. Flynn, supra, 156 Conn. 317-18. The jury could have found from the nature and the extent of the damage to the vehicles that the defendant was operating her car at an unreasonable speed given the circumstances prevailing at the date and time of the collision. The jury had extensive evidence that the defendant did not keep a proper lookout; did not keep her vehicle under reasonable control; and was not driving a reasonable distance apart from the plaintiff's vehicle; and the defendant proximately caused this collision. The jury had no evidence of a substance on the roadway that caused the defendant to slide or skid other than the testimony of the defendant, who admitted she saw no such substance at the subject location and her conjecture that there must have been something that caused her vehicle to slide or skid.
The court charged the jury on the law regarding: (1) keeping a vehicle under reasonable and proper control; (2) failure to steer left or right to avoid a collision;(3) failure to keep a proper lookout;(4) unreasonable speed; and (5) a violation of § 14-240, failure to drive a reasonable distance apart.
"[I]t 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, supra, 239 Conn. 192. The jury could not have reasonably and legally reached its conclusion that the defendant was not negligent. Accordingly, for the reasons set forth herein, the motion to set aside the jury's verdict is granted.