Opinion
No. CV 03 0083863 S
July 28, 2005
SUMMRARY RULING ON THE PLAINTIFF'S MOTION TO SET ASIDE THE VERDICT
This is an action in which the plaintiff sought damages against the defendant arising from a collision between the plaintiff, while riding a bicycle, and a motor vehicle operated by a third party. The plaintiff claimed that the collision was caused by bushes owned by the defendant that obscured the view of motor vehicle drivers and pedestrians leaving the defendant's parking lot. After trial, the jury rendered a verdict in favor of the defendant. Pending before the court is the plaintiff's motion to set aside the jury verdict based on alleged errors in the jury instructions. For the following reasons, the plaintiff's motion is denied. The plaintiff's objections to the court's charge were fully considered and addressed by the court during the trial. All the claims are meritless:
1. There was nothing confusing about the court's charge on the issue of notice. The instruction was a standard charge that the plaintiff was required to prove that the defendant had notice of the specific condition that the plaintiff alleged was defective. The plaintiff argued that the defect was the mere location and size of the bushes in question, or alternatively, that the defect was the overgrown nature of the bushes at the time of the incident. Based on the evidence presented and the claims being made, the charge on notice was required and appropriate.
2. As to the court's rejection of the plaintiff's proposed charge on released parties, the plaintiff, not the defendant, introduced evidence that the plaintiff had previously brought an action against the driver of the vehicle in question and then withdrew that action. This fact was discussed during the plaintiff's opening statement and during the plaintiff's direct testimony. (Absent objection, the parties also submitted the pleadings to the jurors. Additionally, the court sustained the plaintiff's objection to the defendant's inquiry seeking testimony about the specific terms of the release.) Thus, the plaintiff decided to address this issue directly and provide the jury with the plaintiff's explanation about why the driver was sued and then subsequently dropped from the case. As a litigation strategy, the plaintiff chose this route, rather then filing a motion or asserting an objection to preclude evidence from being presented to the jury concerning the plaintiff's release of the driver. Nevertheless, after interjecting this issue into the evidence, and without moving to strike any of it, the plaintiff then sought to preclude the jury's consideration of this evidence through the charge that was proposed. The plaintiff in effect sought to provide the jury with her explanation about why the driver was sued and released, but to preclude the jury from fully evaluating the weight or credibility of her testimony.
Under these circumstances, the court rejected the plaintiff's proposed charge on released parties. Although General Statutes § 52-216a generally precludes evidence about a plaintiff's release of a party, this per se rule is modified to allow such evidence when the release relates to a disputed issue in the case, or as the case here, when the evidence regarding the release is put in issue by the releasor herself. See generally, Bovat v. Waterbury, 258 Conn. 574 (2001) (evidence about the plaintiff's release of another party is admissible to impeach the plaintiff's testimony that no claim had been made against this party); Donner v. Kearse, 234 Conn. 660, 676 ("Accordingly, we conclude that § 52-216a does not erect a total bar that prevents a jury from ever considering the terms of a release agreement as evidence.")
Furthermore, in retrospect, any error on this issue must be deemed harmless because neither party actually claimed that the driver was negligent. The court rejected the defendant's proposed apportionment charge in part because of the late notice of the claim in light of the court's inquiry on the subject, but an additional factor was the lack of any evidence from the defendant that the driver was negligent.
3. Plaintiff claims that the court's charge regarding General Statutes § 14-300c(b), was erroneous because the charge "improperly placed additional duties on the plaintiff" as a pedestrian using a sidewalk along a roadway.
As part of its charge on the defendant's special defense of comparative negligence, the court instructed the jury that one of the defendant's claims of negligence against the plaintiff was that the plaintiff suddenly left a sidewalk or other place of safety adjacent to a roadway and moved into the path of a vehicle which was so close to the plaintiff as to constitute an immediate hazard to her. Although the defendant's claim was premised on the provisions of General Statues § 14-300c(b), the instruction was given as a common-law claim of negligence, and not negligence per se. See General Statutes, § 14-300(d) ("In any civil action arising under sections . . . 14-300b to 14-300d, inclusive, the doctrine of negligence per se shall not apply").
In this particular case, the plaintiff's objection to the charge essentially means that a pedestrian cannot be charged with a duty to use reasonable care so as not to move from a place of safety on a sidewalk and proceed to move to another part of the sidewalk that places her dangerously into the path of a vehicle. Such an objection obviously has no merit.
4. The plaintiff's last objection is that the court charged the jury on comparative negligence when the defendant did not plead comparative or contributory negligence. This objection is frivolous as the defendant asserted a special defense that any damages suffered by the plaintiff were caused by her own negligence, and the defendant specified its claims of negligence in its answer. There is no pleading deficiency in this respect, but even if there were one, the allegations were sufficient to put the plaintiff on notice of the defendant's special defenses, no evidentiary objections were asserted on this ground, and no bona fide claim of surprise or prejudice either exists or has been alleged.
5. The plaintiff's claims, particularly those raised in three and four above, are precluded by the general verdict rule. See Morales v. Moore, 85 Conn.App. 208 (2004).
Thus, the court is confident that the jury's verdict was not premised on any error in the court's instructions on the law. The plaintiff's motion to set aside the verdict is denied and the defendant's objection to the motion is sustained.
STEVENS, J.