The plaintiff, Kenneth E. L'Homme, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant department of transportation (department) on his complaint brought pursuant to General Statutes § 13a-144, the highway defect statute.
The jury reasonably could have found the following facts. On June 20, 1998, between 7:45 p.m. and 7:50 p.m., the plaintiff motorcyclist was traveling north on Route 49 near the border of North Stonington and Voluntown. Route 49 is a state highway and, as such,
Shortly after crossing the town line in Voluntown and entering a gradual turn, the plaintiff noticed that the southbound traffic had left wet tire markings on the road's surface. Moments later, the plaintiff encountered a flooded and mud slicked stretch of road. The plaintiff reduced his speed but was unable to maintain control of the motorcycle. The plaintiff was thrown from the motorcycle and suffered numerous injuries.
On June 24, 1998, the plaintiff served James F. Sullivan, commissioner of transportation, with notice of intent to file an action pursuant to § 13a-144. Within that notice, the plaintiff described the defective condition existing on Route 49 on June 20, 1998, as "mud." The plaintiff thereafter filed a complaint alleging that the defendant had breached its statutory duty to maintain the highway in a reasonably safe condition. At trial, the plaintiff claimed that the road was defective and that proper maintenance of the road would have prevented the accident.
Two hours prior to the plaintiff's accident, Beverly Costley had traveled the same stretch of Route 49 on her way to Westerly, Rhode Island. She testified that at that time, the weather was "nice" and that the roadway was dry and clear. After Costley arrived in Westerly, rain began to fall heavily for a brief period of time. Shortly thereafter, Costley began her return trip to Connecticut. Costley again traveled along Route 49. She noted that Route 49 was dry and that there was no rain. The only indication of mud and water on the roadway existed specifically at the accident site. The plaintiff did not offer evidence that there had been rain in Voluntown or North Stonington on the day in question.
After the jury returned a verdict in favor of the defendant, the plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the motion. This appeal followed. Additional facts will be set forth where necessary to the resolution of the issues.
The plaintiff claims first that the court improperly denied his motion to set aside the verdict and for a new trial. Specifically, the plaintiff argues that the court improperly (1) excluded evidence of prior, similar conditions and accidents that was contained in a department complaint letter and drawing, and evidence of erosion, (2) denied him the opportunity to cross-examine a fact witness and (3) instructed the jury on the notice requirement under § 13a-144. The plaintiff's argument, essentially, is that had the court not excluded the proffered evidence and denied him the opportunity to cross-examine a witness, and had the court given a different jury instruction, the jury would have answered in the affirmative all of the special interrogatories that it had been given and returned a verdict in his favor. We disagree.
The following additional facts are relevant to our analysis of the plaintiff's claims. At trial, the plaintiff offered evidence of prior, similar conditions and accidents
The plaintiff also attempted to introduce evidence of erosion on the side of Route 49. Specifically, the plaintiff offered photographs as well as testimony from Ayrton, a resident of Route 49, who was prepared to testify that she had put the department on notice of the defective condition, and that the department repeatedly had visited the area and filled eroded areas of the roadway with millings. The plaintiff offered that evidence to support his position that the department had constructive notice of the defect and that a reasonable amount of time had existed for the department to remedy the defect. The court ruled that this evidence was inadmissible to prove constructive notice or that the department had sufficient time to remedy the defect because the evidence was irrelevant as to those two issues.
During direct examination of a defense witness, Frederick Atwell, a department employee, the defendant's counsel asked about the procedure by which the department received notification of the existence of highway defects. With respect to the accident on June 20, 1998, the defendant's counsel asked Atwell, "At my request, did you search or have [you] searched the records at [the department's Newington headquarters] pertaining to any calls about problems at this location?" Atwell responded that he had searched the department's call-log records and that a call came into the department's call center at 8:05 p.m. on June 20, 1998. During cross-examination, the court did not permit the plaintiff's
In its jury instructions, the court gave the jury a specific charge as to the requirements for a finding of actual or constructive notice.
Prior to beginning deliberations, the jury received special interrogatories to answer.
At the outset, we note the standard of review that governs a challenge to a court's denial of a motion to set aside a verdict and for a new trial. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial ... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is
Even if we assume, without deciding, that the court improperly ruled on the admissibility of evidence, denied the plaintiff the opportunity to cross-examine a witness and gave the jury improper instructions, we would conclude that any error was harmless. In a civil case, the harmless error standard requires a reviewing court to determine whether the allegedly improper ruling would likely affect the result of the trial. See Pagano v. Ippoliti, 245 Conn. 640, 652, 716 A.2d 848 (1998).
The jury answered in the affirmative as to only one of the six special interrogatories that it was given. Importantly, the jury found that the plaintiff did not satisfy his burden of proving that the defect was the sole proximate cause of his injuries. Accordingly, for the plaintiff to prove that any alleged impropriety by the court was harmful, he was required to show that the court's rulings or jury instructions affected the jury's finding concerning sole proximate cause. We address each of the plaintiff's arguments in turn.
The plaintiff argues that the court improperly excluded evidence concerning prior, similar conditions of mud and water on Route 49. The plaintiff offered evidence of prior, similar conditions solely to prove that the department had constructive notice of the defective highway condition with a reasonable window of opportunity
As for the evidence concerning prior, similar accidents, the plaintiff argues that the court should have admitted that evidence to prove notice of the defect. Although that evidence may have been relevant to prove constructive notice, it was not relevant to prove sole proximate cause. Any improper ruling or jury instruction, therefore, was harmless.
Next, the plaintiff argues that the court improperly excluded testimony and photographs indicating that erosion existed on the side of Route 49. In his brief, the plaintiff argues that he offered that evidence to support his position that the state had constructive notice of the defect and that a reasonable amount of time existed to remedy the defect. Again, whether erosion existed along Route 49 prior to June 20, 1998, or whether the department had time to cure the defect prior to the plaintiff's accident is irrelevant as to the issue of sole proximate cause.
The plaintiff also argues that the court improperly prohibited him from cross-examining a defense witness concerning department call-center logs. The plaintiff argues in his brief that despite the court's curative jury instruction, the ruling resulted in an adverse inference that the call placed on June 20, 1998, was the only complaint that the department ever had received concerning the area of Route 49 at issue. Again, regardless of whether the jury drew such an inference, that evidence is not relevant to establish the element of sole proximate cause.
Finally, the plaintiff argues that the court improperly charged the jury. In support of his argument, the plaintiff states that the court's instruction was improper
Even if we were to determine that the court improperly excluded evidence or had given an improper jury instruction, the proffered evidence and instruction were relevant only to the issues of notice and time to remedy the defect. The jury found that the plaintiff had failed to establish that the defect was the sole proximate cause of his injuries. We conclude that any error arising from the court's rulings or jury instructions was harmless and did not affect the verdict. Therefore, because any error was harmless, the court did not abuse its discretion in denying the plaintiff's motion to set aside the verdict and for a new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
"1. Do you find that Route 49 at the location of the accident was defective due to an accumulation of mud and water at the time of the plaintiff's accident?
"Yes X No
"2. Did the defendant have actual notice or knowledge of this defect (mud and/or water) in the road on the day that the accident occurred prior to the accident?
"Yes No X
"3. If the defendant had actual notice or knowledge of this defect on the road on the day that the accident occurred prior to the accident, did it have a reasonable time to respond before the accident?
"Yes No X
"4. Did the defendant have constructive notice or knowledge of this defect (mud and/or water) in the road on the day that the accident occurred prior to the accident?
"Yes No X
"5. If the defendant had constructive notice or knowledge of this defect on the road on the day that the accident occurred prior to the accident, did it have a reasonable time to respond before the accident?
"Yes No X
"6. Do you find that the defendant's breach of their statutory duty was the sole proximate cause of this accident?
"Yes No X"