The plaintiff, Robert O'Sullivan, appeals from the trial court's dismissal of his administrative appeal. An administrative hearing was held to determine whether the plaintiff caused or contributed to a fatality, and, if so, whether his motor vehicle license should be suspended. A hearing officer found in the affirmative and suspended the plaintiff's license for three years. The plaintiff claims that the trial court improperly concluded that the following evidentiary rulings of the hearing officer were proper and that the plaintiff was not substantially prejudiced by these rulings: (1) the admission of the police report that contained hearsay statements of witnesses without requiring the witnesses' presence at the hearing; (2) the admission of a copy of the police report rather than the original, where the author could not recall if any corrections had been made; and (3) the admission of only a portion of the officer's investigation file. We affirm the judgment of the trial court.
The following facts are undisputed. On August 9, 1988, at approximately 9:30 p.m., the plaintiff was driving southbound in the left lane on Interstate 95 near exit 14 in Norwalk. The left lane, however, was closed for road construction and the closure was indicated by both signs and cones placed in the lane. As the plaintiff was attempting to merge into the center lane, he noticed high beams being flashed from behind him. At the same time that the plaintiff was turning the wheel to merge into the center lane, he looked up to adjust his rearview mirror, taking his eyes off the road. When he returned his attention to the road, he saw the brake lights on in the car immediately in front of him in the center lane. The plaintiff immediately applied his brakes, but was unable to avoid a collision with that car, which was driven by Joseph Grumblatt. Also in the car were his wife Louise, and Stephen and Sylvia Luciano. The Grumblatt car was forced over the
Trooper Joseph Kubish of the state police arrived at the scene shortly thereafter and examined the physical evidence, including the skid marks, the positions of the two cars and the damage the cars had sustained and interviewed Joseph Grumblatt, the plaintiff, and David Rubin, the driver of the car behind the plaintiff.
The plaintiff was present at the administrative hearing and was represented by counsel. Only two witnesses testified at the hearing, Kubish and Sal Rermo, a business associate of the plaintiff. The hearing officer made the following findings of fact:
"1. On August 9, 1988, at about 9:43 p.m. Robert C. O'Sullivan was operating a 1984 Toyota Celica on 1-95 westbound near the Richard Avenue overpass in Norwalk.
"2. Mr. O'Sullivan was operating in the far left lane of three travel lanes. Said lane was clearly marked as closed and traffic had been directed to merge right.
"4. By Mr. O'Sullivan's statement he admits that he took his eyes off the road to adjust a rearview mirror while in the process of the lane change.
"5. When Mr. O'Sullivan looked down from his rearview mirror he observed the red brake lights of a vehicle in front of him, but was unable to react.
"6. Mr. O'Sullivan struck the rear of a 1981 Pontiac being operated by Joseph J. Grumblatt with sufficient force to spin the Grumblatt vehicle 180 degrees in a northerly direction, across the right lane, striking the guardrails off the right shoulder. The Grumblatt vehicle flipped over the guardrails and barrel rolled down the embankment.
"7. At the time of the collision, Louise F. Grumblatt was a passenger in the vehicle being operated by Joseph L. Grumblatt.
"8. As a result of injuries received in this collision Louise F. Grumblatt expired.
"9. The closure of the extreme left lane was clearly posted and the slowing and merging traffic should have been evident to Mr. O'Sullivan.
"10. Mr. O'Sullivan operated his vehicle with reckless disregard for others using the roadway, contrary to the provisions of the Connecticut General Statutes."
The hearing officer concluded that the plaintiff "caused or contributed [to] and is responsible for the death of Louise Grumblatt...." and suspended the plaintiff's license, pursuant to General Statutes § 14-111 (c),
The trial court found that the hearing officer properly admitted the police report and the hearsay statements of the two witnesses contained therein without requiring the witnesses' presence at the hearing. We agree with the trial court. Initially, it must be noted that"`[i]t is fundamental that administrative tribunals
The plaintiff bears the burden of demonstrating that a hearing officer's evidentiary ruling is arbitrary, illegal or an abuse of discretion. Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 139, 439 A.2d 282 (1981). Where such a showing has been made the administrative order must be invalidated. Lawrence v. Kozlowski, supra, 723.
The plaintiff has wholly failed to make such a showing. He relies on our Supreme Court decision in Carlson
This case is more like Lawrence v. Kozlowski, supra, than Carlson v. Kozlowski, supra. In Lawrence, an administrative hearing was conducted to determine whether the plaintiff was responsible for an automobile accident. The plaintiff challenged the admission of various reports indicating he was responsible for the accident and that he had pled nolo contendere to a charge of negligent homicide. The court concluded that "[e]ven if the challenged documents had been excluded the commissioner's conclusion was supported from other substantial evidence." Lawrence v. Kozlowski, 714-15.
As in Lawrence and unlike Carlson, the documents challenged here, were not the only evidence indicative of the plaintiffs culpability. Giving the plaintiff the benefit as to each of his evidentiary claims, there remained substantial evidence from which the hearing
The trial court also found that the hearing officer properly admitted a copy of the police report rather than the original which had been destroyed. The plaintiff claims that the trial court improperly reached this conclusion and relies on an unreported Superior Court case.
As defined by our Supreme Court, the best evidence rule requires a party to produce an original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also B. Holden & J. Daly, Connecticut Evidence (1988) § 82 (a). The "`basic premise justifying the rule is the central position which the written word occupies in the law.'" Brookfield v. Candlewood Shores Estates, Inc., supra, quoting C. McCormick, Evidence (1984) § 230; see also Coelm v. Imperato, 23 Conn.App. 146, 150, 579 A.2d 573 (1990); Morales v.
Finally, the trial court found the plaintiff's claim regarding the absent accident photographs to be without merit. The court reasoned that although Kubish failed to bring the photographs to the hearing as requested, the plaintiff could not show that he was substantially prejudiced by their absence. Furthermore, he failed to request a continuance for the purpose of securing the photographs. The plaintiff's failure to request a continuance indicates a willingness to continue with the proceeding. State v. Festo, 181 Conn. 254, 266, 435 A.2d 38 (1980). Because the plaintiff failed to request a continuance to secure the photographs, he cannot now complain that he was prejudiced by their absence. See State v. Jones, 205 Conn. 723, 725, 535 A.2d 808 (1988); State v. Richardson, 204 Conn. 654, 670, 529 A.2d 1236 (1987); State v. Williams, 203 Conn. 159, 171, 523 A.2d 1284 (1987).
The judgment is affirmed.
In this opinion the other judges concurred.