Opinion
UWYCV156027293
01-05-2017
Tracy Bournival v. Nicole Roy
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION IN LIMINE #123
Barbara, Brazzel-Massaro, J.
This action arises from an automobile accident on June 13, 2015. The plaintiff, Tracy Bournival, as a bus driver engaged in her duties when the defendant struck her bus as it was stopped at the corner of Woodtick Road and Ransom Hall Road in the Town of Wolcott. The plaintiff has named one defendant Nicole Roy. She was the operator of the motor vehicle that collided into the rear of the school bus driven by Tracy Bournival.
In her complaint the plaintiff included several allegations of negligence by the defendant. The plaintiff alleged as to the defendant that: a. she failed to keep the vehicle she was operating under proper and reasonable control; b. she operated her motor vehicle at a greater speed than was reasonable, having regard to the width, traffic and use of the highway in violation of Connecticut General Statute § 14-218a, and was negligent and careless thereby; c. she operated her motor vehicle too closely to the rear of the claimant's motor vehicle and hence could not stop her vehicle in time to avoid a collision in violation of § 14-240 of the Connecticut General Statutes, and was negligent and careless thereby; d. she operated her motor vehicle with defective or inadequate brakes, or failed to apply her brakes in time to avoid a collision, in violation of § 14-80h of the Connecticut General Statutes, and was negligent and careless thereby; e. she failed to keep a reasonable and proper look out for other vehicles upon the highway, although by a reasonable use of her faculties, she could have and should have done so, and was negligent and careless thereby; f. she failed to sound her horn or give a timely warning of the impeding collision, although by a reasonable use of her faculties, she could have and should have done so, and was negligent and careless thereby; g. she failed to keep her vehicle under proper and reasonable control and was negligent and careless thereby and; h. she failed to turn her vehicle to the left or to the right, in order to avoid said collision.
On August 11, 2015, the defendant filed an answer and denied the allegations in the complaint. Thereafter, on November 18, 2016, the defendant amended her answer. In the amended answer the defendant admitted only one allegation that the defendant failed to keep her vehicle " under proper and reasonable control." (Amended Answer ¶ 7.)
The plaintiff speculates that the amendment was the result of her request for cell phone records of Nicole Roy.
The plaintiff has filed a " Memorandum on the Admissibility of Liability Evidence" in which she submits the issue is whether she may admit evidence of the defendant's negligence as to the various remaining claims alleged in the complaint when the defendant has admitted liability for one allegation of the complaint. The plaintiff contends that the partial admission of liability does not remove the other allegations of negligence from dispute, that the plaintiff is entitled to prove her case in the most convincing manner and that the witnesses' statements regarding the circumstances of the crash are relevant to causation and plaintiff's damages. The plaintiff contends she is entitled to produce evidence as to all claims of negligent acts by the defendant even after the admission of liability.
The defendant argues that the only issues before the jury involves evidence and testimony as to whether the damages alleged were caused by the admitted negligent conduct of the defendant. In other words, the defendant contends that since liability is admitted the plaintiff should not be able to introduce testimony or argue as to the remaining allegations of negligence which were not specifically admitted.
Under some circumstances, the superseding pleadings can be admitted as an exhibit. In the present action, the issue before the court is whether such evidence can be admitted as well testimony about the prior claims by the plaintiff and denials by the defendant. The plaintiff has argued that she is entitled to introduce the testimony of a witness about the erratic and unsafe driving of the plaintiff and the force with which she hit the bus plaintiff was driving.
The defendant argues that because they have admitted liability, the only question is causation of the damages. The plaintiff contends that the admission of liability does not remove the other allegations. The court has heard argument from the counsel concerning the extent of testimony that relates to the events and allegations surrounding the accident.
The court initially noted two concerns. The first is whether there is a prejudicial impact in permitting evidence or testimony as to allegations which have not been admitted in a " clear" liability action and secondly, the chilling effect on the defendants admitting liability if the court permits testimony or evidence into claims which are not admitted in a civil action.
Of significance is the claim of the prejudicial impact upon the defendant. " To be excluded the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted." (Emphasis in original.) Martins v. Connecticut Light & Power Co., 35 Conn.App. 212, 217, 645 A.2d 557 (1994) citing Chouinard v. Marjani, 21 Conn.App. 572, 576, 575 A.2d 238 (1990). The court in Martins opined that because there were nine prior accidents it did not mean all of them should be admitted. The court looked to relevance and similarity. The plaintiff in the instant action filed a complaint with nine separate claims of negligence as to the defendant. In order to find negligence the plaintiff need only prove that the defendant was negligent in one respect.
The defendant in Martins did admit that its facilities had the potential to cause harm. The court stated that the plaintiff may prove a fact in issue " by the most convincing evidence it is able to produce . . ." at 220. However, the discussion in Martins relates to the necessity for the plaintiff to prove that the defendant acts which were negligent.
In reviewing Martins, the prejudicial impact of the evidence was not greater than the probative impact. Prejudicial evidence is that evidence which may unduly arouse the jury's emotions of . . . hostility or sympathy. State v. Waterman, 7 Conn.App. 326, 350, 509 A.2d 518, cert denied, 200 Conn. 807, 512 A.2d 231 (1986). The use of additional allegations to bolster the claims against the defendant is clearly a manner of eliciting either hostility against the defendant or sympathy for the plaintiff who was simply stopped at a corner after allowing students to disembark. Here, the prejudicial impact outweighs the probative nature of the testimony or evidence. This court inquired specifically as to whether the introduction of the evidence concerning the remaining allegations would have any additional impact in allowing the jury to decide the issue of damages. The plaintiff could not provide any impact except to state that the inability to present evidence of the remaining allegations robs the jury to fairly weigh the evidence. The jury need only determine if the injuries were caused by this accident and the fact of whether the defendant sounded her horn or failed to turn her car to the right or the left has no relevance to the damages. The plaintiff could not specify particularly how the admission of each claim would impact the damages differently except that it is therapeutic to the plaintiff. In this regard, the only allegation that the plaintiff could specifically argue has an impact is the allegation as to speed. In particular, the plaintiff argues that the impact and the speed of the vehicle which passed the car behind the bus and attempted to enter into a small space between cars was instrumental in producing the injuries of the plaintiff. The plaintiff in the instant action contends that she received serious injury as a result of the impact by the defendant. Therefore, the speed, the angle with which the car hit the bus and the manner may have some direct impact on the issue of damages. The defendant has not offered any argument that would affect this finding by the court. Additionally, the plaintiff contends that the view of the witness as to the conduct of the defendant immediately before the accident is necessary on the issue of credibility. The plaintiff contends that the testimony of the defendant in her deposition was that at the time of the accident that she must have fallen asleep. The eye witness proposed by the plaintiff contradicts this testimony. As such it is testimony which must be weighed by the jury. None of the other allegations follow this rationale and the admission of them or the original complaint is more prejudicial than probative and creates a chilling effect upon defense counsel from ever admitting liability on a portion for fear that there is already an admission of liability which may then be compounded by other allegations.
The plaintiff also attempts to utilize findings in criminal actions in which the prosecution has the right to prove every essential element of the crime. However, the burden in a criminal action is different and the intensity to look at every act in a criminal setting is far different than a civil action. For instance, if the defendant is accused of the crimes of robbery and a homicide during the robbery, the prosecution will not ignore the acts of the homicide simply because the defendant pleads guilty to robbery. The homicide results in different sentences and the combination of the two may result in a felony murder conviction. It is not the same.
The plaintiff has also referred to a number of cases in the federal court or other states as supporting her position. The court notes that the rationale and facts in some of the cases are not similar. For instance, in Ali v. Connick, 11-CV-5297 (NCGG) (VMS), (E.D.N.Y) the question was one of credibility which allowed the introduction of the evidence of intoxication and arrests. In Lee v. Chicago Transit Auth., 152 Ill.2d 432, 605 N.E.2d 493, 178 Ill.Dec. 699 (Ill. 1992), the admission was not a pleading but was a stipulation as to the issue of notice during the course of testimony. There are also no Connecticut cases directly on point.
Although the defendant has admitted liability as to the claim of following too closely this admission as noted above, in and of itself does not address the impact which the plaintiff alleges was so severe as to cause serious injuries. The issue before the jury is whether the accident caused the specific damages which are claimed by the plaintiff. Because of this claim, the speed of the vehicle and the impact on the bus may be of significance in the factual determination of the injuries. The manner in which the car was operated may be relevant to the issue of credibility. Additionally, counsel for the plaintiff argued that the description of the accident is therapeutic and goes to the emotional suffering by the plaintiff.
Based upon the above, the plaintiff's request to permit testimony and evidence of the actions of the defendant immediately preceeding the accident and to relay the speed of her travel is permitted.
The plaintiff has also requested that the court permit her to examine the cell phone records of the defendant. The only basis for this request is that the defendant had a fight with her boyfriend the night before. There are no witnesses or conduct that would support even an innuendo that the defendant was on her cellphone. The defendant was asked this very question at her deposition and she replied that she was not on the cell phone. There is absolutely no information except for pure conjecture and speculation that a cell phone was in use at any relevant time in this action. The plaintiff argues that the objection to the cell phone records is that the information is unfairly prejudicial to the defendant. This is not the basis of the objection as the court noted above there is no testimony or basis to come to the conclusion that this defendant was using her cell phone at any time in proximity to the accident. Therefore, the request to obtain cell phone records is denied.