Opinion
No. FST CV03-0197324S
November 27, 2007.
Factual/Procedural Background
This is a personal injury action commenced by the plaintiff Godfrey Burton against the City of Stamford arising out of a head-on collision between an automobile operated by the plaintiff and a City of Stamford police cruiser operated by Officer James Grabinski. At the time of the collision the police officer was responding to an emergency call with emergency strobe lights and siren activated. The City of Stamford is the sole defendant in the case. Officer Grabinski was not sued.
This point was effectively conceded by the plaintiff whose complaint was originally drawn in two counts: Count 1 premised on the lights and siren not activated; Count 2 premised on the lights and siren being in operation. After the plaintiff had rested plaintiff's counsel conceded that Count I should not go to the jury. (Tr. 11/18/05, 170-71.) Officer Grabinski had testified that the lights and siren were in operation as required for a "code 2 call." (Tr. 11/18/05, 108-09), and a witness, Herman Bersaud, who worked in the nearby Midas shop at the corner of Main and Clinton, testified that he heard a siren just before hearing the collision. (Tr. 11/16/05, 41) and heard the siren and saw the flashing lights just after the collision. (Tr. 11/16/05, 42).
The plaintiff's complaint alleges that the collision and the plaintiff's resulting injuries were caused by the negligence of Officer Grabinski who was acting with the express knowledge, permission and authority of his employer, the City of Stamford. The specific claims of negligence are that the officer: commenced a left hand turn in an intersection without granting the plaintiff the right of way in violation of Conn. Gen. Stat. § 14-242; operated his vehicle to the left of the double yellow line demarking the travel lanes in violation of Conn. Gen. Stat. § 14-230; operated his vehicle at a rate of speed which was excessive under the circumstances then and there existing; operated his vehicle with defective brakes in violation of Conn. Gen. Stat. § 14-80h, or failed to apply his brakes in time to avoid colliding with the plaintiff's vehicle; failed to keep a proper lookout for other vehicles upon the roadway; failed to turn his vehicle to the left or right or take other proper evasive action to avoid striking the vehicle of the plaintiff; failed to operate his vehicle in a manner consistent with a reasonable and prudent police officer under the circumstances then and there existing; and failed to operate the police cruiser while responding to an emergency call in such a way as not to endanger life or property in violation of Connecticut General Statutes § 14-283. The complaint initially alleged that the defendant City of Stamford is liable to indemnify the plaintiff for his injuries and damages pursuant to the provisions of Conn. Gen. Stat. § 7-465.
§ 14-283(b) permits the operator of any emergency vehicle to ". . . (1) park or stand such vehicle, irrespective of the provisions of this chapter, (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions. The exemptions apply to emergency vehicles including a state or local police vehicle answering an emergency call properly and lawfully making use of an audible warning signal device, including, but not limited to a siren.
§ 7-465 provides, in part: "(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special, or local, shall pay on behalf of any employee of such municipality, . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.
The defendant City of Stamford admitted that Officer Grabinski was operating the police cruiser with the express knowledge, permission and authority of the City of Stamford, but denied all the allegations of negligence or improper operation of an emergency vehicle and filed three special defenses of contributory negligence, governmental immunity and plaintiff's failure to state a cause of action.
The following facts are undisputed. On October 11, 2002 at approximately 8:30 a.m. the plaintiff Godfrey Burton was operating his wife's 1988 Volvo on Main Street in Stamford near its intersection with Clinton Avenue, an intersection not controlled by a traffic control signal. The front of the Volvo had gone through the Clinton Avenue intersection proceeding straight on Main Street in an easterly direction. Officer Grabinski was operating his police car in a westerly direction on Main Street toward the Clinton Avenue Intersection with lights and siren activated, intending to turn left onto Clinton Avenue to a location where he had been dispatched to assist another officer. The officer admits that he had commenced to make a left hand turn when the two vehicles collided approximately head-on. The photographs admitted into evidence at trial show the vehicles as they came to rest following the collision. Both cars have extensive front end damage. (Def. Ex. FK.) As the cars came to rest on Main Street their conjoined front ends are somewhat east of the Clinton Avenue intersection. (Def. Ex. FV and FS); The bumper of the police car had crumpled the front bumper and left front fender of the Volvo back approximately to the point of its left front tire.(Ex. FS) The plaintiff's Volvo is headed approximately straight east on Main Street with all four wheels approximately parallel to the double yellow line and well within the lane designated for eastbound traffic. The police car is positioned at a slight angle to the driver's left, or to the southwest. Its right front tire is several feet south of the double yellow line of Main street, approximately aligned with the left front tire of the Volvo; its right rear tire is inches south of the double yellow line. All four tires of the police car are in the eastbound lane of Main Street. (Def. Ex. E.)
Jury trial commenced on November 16, 2005. The plaintiff testified as to his injuries, but had no recall at all of the accident. His last recollection was leaving his place of employment at the Connecticut Transit bus garage on Elm Street, driving the Volvo to get some food for himself and his supervisor at the Jamaican store or restaurant on Main Street near Clinton avenue. The next thing he remembers is being in the Stamford Hospital. (Transcript 11/18/06, 22-23, 72-73.) Officer Grabinski was called as a plaintiff's witness. He testified that he was responding to a "code 2" dispatch call to assist a plainclothes narcotics officer. He proceeded from the downtown area south on Washington Boulevard and turned west onto Main Street, siren and flashing lights activated, intending to turn left or south onto Clinton Avenue which is about 500 yards west of Washington Boulevard. As he approached the Clinton Avenue intersection he observed no traffic ahead of him either in his lane (westbound lane) or the other lane to his left (eastbound lane) and he said that he had a clear and unobstructed view of the intersection. He remembers seeing a red car parked at the curb of the eastbound lane before (east of) the intersection and another car, occupied, the Burton Volvo, at the curb, facing east on the opposite (west) side of the Clinton Avenue intersection in front to the Jamaican restaurant. The officer estimated his speed as approximately ten miles per hour as he commenced a left turn approaching the intersection. Although he testified at one point that "I remember it [the Burton Volvo] coming at me" (Tr. 11/18/05, 122), he specifically described the happening of the collision in these words
Q . . . As you came to Clinton Avenue, what happened?
A. As I was approaching Clinton Avenue, I had a free and clear unobstructed view and roadway, I started to make a left hand turn. Suddenly there was a car in front of me, and a collision occurred.
Q. And can you recall whether there were any other cars — well you said it was a clear unobstructed view. Were there other cars on the street traveling that you recall?
A. No, not when I started my turn, no. (Transcript, 11/18/05, 114.) . . .
Q. But as you're driving towards the intersection my question is was there anything in the intersection that you were trying to maneuver around other than to just make that left hand turn on to Clinton?
A. No, as I was approaching the intersection it was clear [of] vehicles — there was no pedestrians. I don't recall seeing anything like that.
Q. . . . Now, if I got your testimony right — you said you didn't see the car that struck you in the traveled portion of Main Street as you approached the intersection.
A. Until it was in front of me.
Q. Until it was in front of you, right in front of you? Right in front of you?
A. That's correct. (Transcript, 11/18/05, 119.)
When asked later in his testimony if he tried to avoid the Volvo as he commenced his left hand turn, the officer testified:
There was no reason for me to avoid it. It wasn't on the roadway traveling, and there was
Q. Yes.
A. It was irrelevant to avoid it, it wasn't there. (Transcript, 11/18/05. 133.)
There was no eyewitnesses testimony (other than Officer Grabinski's). Neither party offered any expert testimony as to the cause of the collision.
After the plaintiff had rested his case at the end of the day on Friday, November 18, 2005 the defendant made an oral motion for directed verdict on two grounds: (1) that there was insufficient evidence as to the alleged negligence of the police officer and the cause of the collision and (2) governmental immunity, in that the plaintiff had failed to prove an indemnity case under Conn. Gen. Stat. § 7-465 because no individual city employee was a defendant in the case and there was no evidence that any city employee had been held liable for Mr. Burton's injuries, and no other statute abrogating governmental immunity had been pleaded. Following argument of counsel the court reserved decision as to the first ground (insufficiency of evidence) pursuant to Practice Book § 16-37 and deferred decision as to the second ground (governmental immunity) until the next scheduled trial date which was Tuesday, November 22. On Monday, November 21 the plaintiff filed by fax a memorandum of law expanding on his primary argument in opposition to part two the motion for directed verdict, namely that the plaintiff was basing his case not on § 7-465 as alleged in the complaint but on Conn. Gen. Stat. § 52-557n which provides that: "(a) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) the negligent acts or omissions of such political subdivision or any employee, officer, or agent thereof acting within the scope of his employment or official duties . . ." In his memorandum of law the plaintiff conceded that he had not pleaded or proved a case under § 7-465 because no city employee has been sued. The plaintiff contended, nonetheless, that it had proved a case against the City under § 52-557n which does not require that the individual municipal employee be joined as a defendant or found to be individually liable. Although § 52-557n was not pleaded or mentioned in the complaint, the plaintiff argued that he was nonetheless entitled to proceed under that statute because he claimed that the City had been fairly put on notice of plaintiff's reliance on § 52-557n at an earlier stage of the proceedings. Following further argument on November 22, the court granted part two of the motion for directed verdict on the ground of governmental immunity on the authority of Gaudino v. East Hartford, 87 Conn.App. 353 (2005), where the Appellate Court held in an identical situation that plaintiffs, having cited § 7-465 in their complaint, cannot alter the statute under which their claim was based without amending their complaint. After the court had ruled on the motion for directed verdict but before the jury was called in and directed to return a verdict for the defendant, the plaintiff moved orally for the first time to amend the complaint "to strike the surplusage of the statutory language" (Transcript, November 22, 2005, p 32) seeking to strike the reference to § 7-465 from the complaint and leave the complaint without any statutory reference. The court denied the motion to amend on the ground of timeliness in that the motion for directed verdict had been granted and it was too late to move to amend the complaint. (Transcript, November 22, 2005, pp. 32-35.) Thereafter, at the court's direction, the jury entered a verdict for the defendant and the jury was dismissed.
In Spears v. Garcia, 263 Conn. 22, 29 (2003), the Supreme Court held that § 52-557n authorizes a direct cause of action in negligence against a municipality and ". . . clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents."
On December 1, 2005 the plaintiff filed a Motion to Set Aside Verdict asking that the directed verdict be set aside on five grounds and that the court order a retrial. For reasons set forth in detail on the record the court denied the motion to set aside as to all grounds except Point 5 — that the court had erred in denying the plaintiff's oral motion to amend the complaint and delete the reference to § 7-465. The court ordered briefs on the issue of the timeliness of the oral motion to amend complaint, and also on an issue raised during oral argument by counsel for the defendant, namely, that the court should preserve the record by ruling on the evidentiary insufficiency portion of the defendant's motion for directed verdict made at the conclusion of the plaintiff's case (as to which the court had reserved decision under Practice Book § 16-37). The court ultimately ruled that it had erred in denying the motion to amend on the ground of untimeliness, and, after considering the appropriate discretionary factors, the motion to amend the complaint was granted, taking the case for purposes of abrogating governmental immunity out of the ambit of Gaudino v. East Hartford, supra (wrong statute cited in complaint; amendment required) and into the ambit of Spears v. Garcia, 66 Conn.App 6 (2001), affirmed 263 Conn. 22 (2003) (no statute cited in complaint; plaintiff may rely on any abrogating statute so long as defendants have been sufficiently apprised of plaintiff's reliance thereon — citation of statute in memorandum of law sufficient). The court then identified four instances in the record where counsel for Mr. Burton had cited or mentioned § 52-557n, thereby sufficiently putting the City on notice of the plaintiff's reliance on that statute which abrogates the defense of governmental immunity, and set aside the directed verdict which had been based on governmental immunity. The court then ordered a new trial without going back and ruling on the merits of part one of the defendant's motion for directed verdict as to which decision had been reserved. (See Memorandum of Decision on Plaintiff's Motion to Set Aside Verdict, No. 159.)
The court cited procedural grounds for not ruling on the claimed insufficiency of the evidence at that post-trial point because, following the court's reservation of decision on that portion of the motion for directed verdict pursuant to Practice Book § 16-37, the defendant had not moved pursuant to § 16-37 for judgment in accordance with its motion for directed verdict after the jury was discharged.
The plaintiff has appealed the setting aside of the directed verdict and the granting of a new trial. That appeal is pending in the Appellate Court as No. AC28309. Just before the appeal was filed the defendant filed in the Superior Court a Motion to Re-Argue No. 163), a Supplemental Motion for Directed Verdict (No. 160), a Motion for Judgment in Accordance with Motion for Directed Verdict (No. 161), and a Practice Book § 16-35 Motion for Extension of Time to File (No. 162). The plaintiff filed objections to all the foregoing motions. The court granted permission to reargue and set all the motions down for oral argument. On the day of oral argument there was a discussion of the very complex and unusual procedural status of the case. What emerged from that discussion was a consensus between the parties — with the court's concurrence — that the record on appeal should include the trial court's ruling on the merits whether or not the plaintiff's evidence at trial was sufficient to withstand part one of the defendant's motion for directed verdict. In accordance with that understanding the court on May 2, 2007 issued its Further Order on Defendant's Motion to re-Argue and Plaintiff's Objection to Motion to re-Argue (No. 182.1), noting that there was no longer any objection to the court's deciding on the merits part one of the defendant's motion for directed verdict based on its claim of insufficient evidence of liability to go to the jury. The court therefor vacated the part of its previous order whereby it had declined on procedural grounds to decide that part of the motion for directed verdict, and vacated its order for a new trial pending the outcome of its decision on part one of the motion for directed verdict, which is the substantive issue of this memorandum of decision.
See Robinson v. Ratcliffe, et ux, Docket No. 051051, Superior Court, Judicial District of Litchfield, at Litchfield, (January 24, 1991, Pickett, J.); Conn.Super.Lexis. 195, where the trial court granted a motion for judgment notwithstanding the verdict in favor of the defendant on liability grounds (lack of evidence that a certain retaining wall in the defendants' front yard was dangerous or defective), but nonetheless proceeded to decide an issue of damages "in the event of appellate consideration" (verdict of $5,000 for past non-economic damages but zero dollars for future non-economic damages inadequate as a matter of law). The court ordered a new trial ". . . in the event that, for whatever reason, a judgment notwithstanding the verdict is not final." Id. at 13.
Discussion
The standards for granting or reviewing a challenge to a directed verdict are well established and have recently been stated by the Appellate Court
Generally, litigants have a constitutional right to have factual issues resolved by the jury . . . Directed verdicts therefore are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion . . . We review a trial court's decision to direct a verdict for the defendant by considering all the evidence, including reasonable inferences, in the light most favorable to the plaintiff . . . Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party." Citations and internal quote marks omitted; emphasis in original.)
McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 490 (2006).
The test for "setting aside a verdict rendered for the other party" (equated by the McCann court with the test for directing a verdict in the first instance) has been stated:
The decisive consideration is not whether the finding implicit in the jury's verdict is consistent or inconsistent with another or other hypotheses, but whether or not the inference upon which it is based was one which could have been fairly and reasonably drawn from the physical facts without the admixture of speculation or conjecture . . . The test of the validity of the jury's determination depends upon whether the evidence, fairly and impartially considered, would be likely to induce in the minds of twelve men of ordinary intelligence attentively considering it and using common sense logic "a reasonable belief that it is more probable than otherwise that the fact is issue is true."
(Citations omitted.) LeBlanc v. Grillo, 129 Conn. 378, 379 (1942).
The line between permissible inference and speculation is often hard to discern, but an attempt to draw such a line is part of the adjudicative process. State v. Wells, 100 Conn.App. 337, 343 (2007). In attempting to define that line it is axiomatic that the plaintiff has the ultimate burden to prove the defendant's actionable negligence and causation of damage. Le Blanc v. Grillo, supra, 129 Conn. at 385. And where one operator such as Officer Grabinski does testify and gives evidence not favorable to the plaintiff, it is also axiomatic that disbelief of such testimony does not constitute proof of the opposite contention. Vitale v. Kowal, 101 Conn.App. 691, 700-01 (2007). The issue whether or not there is something more than "mere conjecture and speculation" to prevent or overcome a directed verdict for the defendant is often presented in cases such as this where one or more of the vehicle operators either dies in an unwitnessed accident or has absolutely no recall of the events leading up to the accident, and the plaintiff's case rests largely or entirely on physical evidence and inferences to be drawn therefrom. In this case the plaintiff Mr. Burton argues that there is evidence from which the jury could reasonably have found, without conjecture, that Officer Grabinski was negligent in six ways: improper left-hand turn in violation of Conn. Gen. Stat. § 14-242; operation to the left of a double yellow line demarking the travel lanes in violation of Conn. Gen. Stat. § 14-230; excessive speed under the circumstances; failure to keep a proper lookout; failure to turn his vehicle left or right or take other evasive action to avoid collision; and failure to operate his vehicle in a manner consistent with a reasonable and prudent police officer. (Plaintiff's Brief on Sufficiency of Evidence, August 6, 2007, Section 3.) The first two claims involve allegations of negligence per se. The other four claims involve allegations of common-law negligence. Although the plaintiff claims that the jury could reasonably have found in his favor on six specifications of negligence, he need only show that there was sufficient evidence to sustain one specification of negligence which was a proximate cause of the collision to avoid a directed verdict.
Improper Left Turn (Conn. Gen. Stat. § 14-242) CT Page 20121
§ 14-242(a) provides that
No person shall turn a vehicle at an intersection unless the vehicle is in a proper position on the highway as required by section 14-241, . . . or turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety.
§ 14-241(b) provides that
At any intersection where traffic is permitted to move in both directions on each highway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the highway nearest the center line thereof and bypassing to the right of such center line where it enters the intersection, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the highway being entered.
There was evidence, including Officer Grabinski's own testimony and the photographs admitted as exhibits, from which the jury could reasonable conclude that Officer Grabiski — were he not driving a police vehicle on an emergency call with lights and siren activated — violated these statutes by commencing a left hand turn before arriving at the Clinton Avenue intersection. But he was driving a police car on an emergency call with lights and siren and Conn. Gen. Stat. § 14-283(b)(4) permits him to "disregard statutes, ordinances, or regulations governing direction or movement or turning in specific directions." (Emphasis added.) The exemption of § 14-283(b)(4) to disregard turning statutes is without qualification, and is not subject to the provision of § 14-283(d) that "[t]he provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all person and property." State v. Nesteriak, 60 Conn.App. 647, 654 (2000) (The exemptions granted to emergency vehicles by subsection (b) of § 14-283 are not subject to any overriding obligation to observe safety precautions unless specifically stated within subsection (b) (such as the exemption from speed limit statutes in subsection (b)(3) which is qualified by the proviso ". . . as long as the operator does not endanger life or property by so doing"); the "override" of subsection (d) does not apply to or limit subsection (b)). The evidence of Officer Grabinski's having commenced his left hand turn some distance before reaching the Clinton Avenue intersection while driving an emergency vehicle, then, cannot afford a rational basis for a jury finding of negligence per se for violation of Conn. Gen. Stat. § 14-242 as alleged in the complaint.
Operating to the Left of Double Yellow Line. (Conn. Gen. Stat. E14-230)
§ 14-230 provides:
(a) Upon all highways, each vehicle . . . shall be driven upon the right, except (1) when overtaking and passing another vehicle proceeding in the same direction, (2) when overtaking and passing pedestrians, parked vehicles, animals, or obstructions on the right side of the highway, (3) when the right side of the highway is closed to traffic while under construction or repair, (4) on a highway divided into three or more marked lanes for traffic, or (5) on a highway designated and signposted for one-way traffic.
There was no evidence that any of the five statutory exceptions apply, and there was indisputable photographic evidence that Officer Grabinski's police car came to rest facing substantially westbound with all four wheels in the eastbound lane of Main Street, designated for eastbound traffic. (Def. Ex. D and E.) Furthermore, the officer testified that: "My car appears [in a photo — Pl. Ex. 44] to be in left lane" (11/18/05 Tr. 132). Were it not for the fact that the officer was driving an emergency vehicle, there was a reasonable basis for a finding that the officer had violated § 14-230. But, as a statute governing direction of movement, there is an immunity from criminal liability in § 14-283(b) for operators of emergency vehicles who might otherwise be violating § 14-230. And since there is no safety precaution requirement in subsection (b) of § 14-283 corresponding to the § 14-230 immunity, that immunity is unqualified. State v. Nestariak, supra. There is no evidence which could reasonably support a finding that Officer Grabinski crossed the double yellow line of Main street under the circumstances in violation of § 14-230.
§ 14-230 is a statute governing direction of movement because a non-emergency driver's intrusion into the travel lane of Main Street where the cars came to rest would only be illegal if the driver was traveling westbound. Had he been traveling eastbound that lane would have been on his right, which is what the statute requires.
Speed
The plaintiff has alleged speeding as a claim of common law negligence. There is no allegation of violation of the speeding statutes or speed limits. The plaintiff alleges that the officer allegedly "[o]perated his vehicle at a rate of speed, which was excessive under the circumstances then and there existing." (Complaint, Count Two, ¶ 12D.)
Even if the plaintiff's allegation of speeding is considered to be an allegation of negligence per se as a violation of Conn. Gen. Stat. § 14-218a(a) the threshold analysis would not differ because that statute prohibits operation of a motor vehicle upon a public highway ". . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, . . . the intersection of streets and weather conditions" which is also the common law standard. Only if the evidence supports a finding of unreasonably high speed would it be necessary to consider the exemption of § 14-283(b) which permits the operator of an emergency vehicle to violate the speeding statute under certain circumstances.
The only direct evidence of the defendant's speed was Officer Grabinski's testimony that he was driving "ten miles per hour or under" (Tr. 11/18/05, 122) or "more than a run but less than a walk." (Tr. 11/18/05, 122) and that he was making his turn ". . . at a slow rate of speed due to the conditions it was wet." (Tr. 11/18/05, 133.) Main Street at that point scales out at about 60 feet wide, with one travel lane in each direction. It was raining. The temperature was about 60 degrees. The accident occurred in daylight, at about 8:29 a.m. (Police Accident Report, Def. Ex. C.) Although there was no evidence of the posted speed limit on Main street, the officer testified that the posted speed limit on nearby Washington Boulevard is 35 miles per hour. (11/18/05 Tr. 109.) He further testified that he had ". . . a free and unobstructed view and roadway" as he approached Clinton Avenue and that there were no other cars traveling on the street as he started his turn. (11/18/05 Tr. 114.) The plaintiff does not claim that the foregoing direct evidence would justify a finding of excessive speed, but rather claims that the jury could have reasonably inferred that the speed of the police vehicle was greater than the officer's estimate. "There was sufficient circumstantial evidence (i.e. damage to the vehicles) to support the conclusion that Grabinski was going faster than ten miles per hour, and indeed that Grabinski was traveling faster than [a] reasonable rate of speed given the inclement weather and circumstances." (Plaintiff's Brief on Sufficiency of Evidence, p. 11.) The court agrees with the defendant, that any such "inference" would be improper as conjectural. There is no doubt, as shown in the photos, that both cars sustained heavy front-end damage. One of the investigating officers, Officer O'Meara, testified that debris under the front end of police car as shown in the photo admitted as Plaintiff's Exhibit 44 ". . . could be parts of the vehicle, the engine parts." (Tr. 11/16/05, 85.) He also testified that there appeared to be rim damage and a flattened tire shown on the plaintiff's Volvo. ( Id. 84. 85.) But heavy damage in a head-on collision results from the impact at the combined or relative speed of the two vehicles, and provides essentially no information as to the individual speed of either vehicle, or whether or not that speed was reasonable. As defendant argues, a head-on collision between two vehicles each going 20 mph is the essential equivalent of a collision between one vehicle going 40 mph and another one at rest, or one going 30 mph and the other 10 mph. This concept has been recognized by necessary implication by the Supreme Court: "It must also be recalled that when two vehicles moving in the same direction collide, the collision speed is the difference between their two speeds." Toomey v. Danaher, 161 Conn. 204, 210 (1971) (Massive damage to car involved in collision with center guardrail of limited access highway cannot support verdict based on claim of excessive speed — judgment notwithstanding the verdict directed.)
The witness may have meant the opposite; the statement makes no sense as reported.
There was only one vehicle involved in the Toomey v. Danaher accident. The Court's reference to two vehicles moving in the same direction comes up in its discussion of Terminal Taxi Co. v. Flynn, 156 Conn. 313 (1968).
The plaintiff also has suggested that evidence of debris from the Burton Volvo visible under the front of the Stamford police vehicle demonstrates that the impact moved the Volvo backward after impact, and therefore the police car must have been going faster than the Volvo at impact. Officer Trapani testified that he believed the debris (previously identified as possible engine parts by Officer O'Meara), as shown under the front of the police vehicle in Ex. 44, was debris from Mr. Burton's car. (Tr. 11/17/05, 144.) First, movement after impact by itself is not necessarily indicative of relative speeds at impact. The relative weights of each vehicle and the consequent force generated by its momentum must be figured in to any such calculation. Compare Le Blanc v. Grillo, supra, 129 Conn. at 382-84 (inference from damage to and position of vehicles and debris that collision occurred in plaintiff's side of the highway not unreasonable; jury had evidence of "all physical facts" including relative weights of the two vehicles) with Mott v. Hillman, 133 Conn. 552, 554-55 (1947) (Directed verdict for defendant affirmed; jury could not reasonably infer that truck operated by plaintiff's decedent was on its own side of the road at time of collision; no evidence of the weight of the cars or the speed at which they were traveling; "importance of these elements" stressed). In this case there was no evidence of the weight of either car. Any conclusion to be drawn merely from the presence of debris from the Volvo ending up a foot or two underneath the front of the Ford when the vehicles came to rest would be conjectural. Would heavy debris such as engine parts, once separated from the moving Volvo, continue to move forward after impact even if the Volvo itself was not pushed backward? To attempt to answer that question simply from the final resting place of the debris would be nothing more than conjecture.
Even if all the physical facts were available the answer to any such question under the circumstances of this collision would be governed by what the Supreme Court said in Toomey v. Danaher, supra:
We believe that the extent of damage to this type of vehicle, at a high rate of speed, on collision with a metal guardrail, does require expert testimony before a jury reasonably may conclude that the vehicle was traveling in excess of that [reasonable] speed. On the evidence, therefore, the jury could not have concluded that excessive speed was the cause of this unfortunate accident . . . 161 Conn. at 210.
And, secondly as to this point, as defendant points out, even assuming arguendo that plaintiff's theory is correct and the presence of the Volvo debris under the police car is indicative of a speed of the police car greater than the speed of the Volvo, since there is no evidence of the Volvo's speed such an inference would provide no proper evidence as the actual speed of the police car or whether or not such speed was reasonable under the circumstances.
Failure to Keep a Proper Lookout
A driver is required to keep a reasonable lookout for any persons and traffic he is likely to encounter. He is chargeable with notice of dangers and conditions of which he could become aware through a reasonable exercise of his faculties. Connecticut Judicial Branch, Civil Jury Instructions, No. 2-26; McDonald v. Connecticut Co., 151 Conn. 14, 17.
The court finds that there was evidence sufficient to permit a reasonable non-conjectural inference that Officer Grabinski did not keep a reasonable lookout for traffic in the moments prior to this collision. As recounted above, he gave somewhat conflicting testimony about when he last saw the Volvo before the collision, but the jury reasonably could have believed and accepted his testimony: that he began his left turn before reaching the Clinton Avenue intersection by pulling into the opposite lane of traffic (the eastbound lane of Main Street while he was proceeding westbound); that with unobstructed vision of the intersection, he saw as he began his turn only two other vehicles: a red car parked at the curb facing east before (east of) the intersection, and defendant's Volvo parked at the curb on the far side (west) of the intersection, facing east, in front of the Jamaican restaurant; that the next time he saw the plaintiff's car was when it was "right in front" of him (Tr. 11/18/05, 119). As the officer said: ". . . I was in the process of my turn, and then I saw the vehicle as I was scanning across-— . . . — then boom. It was like that." ( Id. 118).
The Jamaican restaurant was located by Mr. Burton on the photo (Exhibit F-D) as ". . . the first store in the lower buildings on the right hand side of the picture . . . [t]he first store after the higher buildings." (Tr. 11/18/05, 24.) He identified the two businesses on Main Street standing between the Jamaican restaurant and Clinton Avenue as a Chinese restaurant and a hairdressing place. The collision took place on the east side of the Clinton avenue intersection. Officer Trapani's diagram (See Ex. C.) shows the end of the double yellow center line of Main Street (depicting the edge of the intersection) as being about at the mid-point of the Burton Volvo as it came to rest. Officer Trapani admitted on cross examination after looking at the photo (Ex. 44) that the Volvo came to rest even further east than shown in his diagram. (Tr. 11/17/05, 143.) On the diagram, using Officer Trapani's scale of "1"=20' Approx.," Clinton Avenue would be about 30 feet wide. From this evidence the jury could have reasonably found: (1) that Officer Grabinski, while operating (lawfully for an emergency vehicle) on the wrong side of Main Street saw the Burton Volvo twice — once parked at the curb in front of the Jamaican restaurant and a second time just before impact when it was "right in front" of him; (2) that the officer at all times had a clear and unobstructed view of Main Street and the Clinton avenue intersection, (3) that in the interval between the officer's two sightings of the Volvo, Mr. Burton would have had to start from a dead stop and proceed eastbound on Main Street across the width of two storefronts, cross a 30 foot intersecting roadway (Clinton avenue) and possibly proceed a short distance east of the intersection, which would have to take some finite amount of time; (4) that, since there were no obstructions to his vision looking forward, the reason that Officer Grabinski did not see the Volvo until it was right in front of him was that he was not looking out for traffic straight ahead of him; and (5) that a failure to look out for traffic ahead of him for that finite amount of time under the circumstances of being in the lane for travel in the opposite direction was unreasonable negligent driving on the part of Officer Grabinski.
Failure to Turn His Vehicle Left or Right or Take Other Evasive Action to Avoid Collision
A driver of an automobile has a duty to use reasonable care to discover dangers or conditions to which he may be exposed as well as to avoid those dangers and conditions that are actually known to him.
Connecticut Judicial Branch, Civil Jury Instructions, No. 2-26.
As indicated earlier Officer Grabinski's testimony was somewhat conflicting as to the position of the Burton Volvo when he last saw it before the collision. The jury could reasonably have accepted his testimony that "I remember it [the Burton Volvo] coming at me" (Tr. 11/18/05, 122) which could reasonably be construed as an admission of actual knowledge of the position of the Volvo on a collision course with his police vehicle. And there was testimony that the officer failed to take evasive action: There was no reason for me to avoid it . . ." (Transcript, 11/18/05, 133). The jury therefore could have reasonably found without conjecture that Officer Grabinski failed to take evasive action to avoid a collision despite actual knowledge that a collision was imminent.
Failure to Operate His Vehicle in a Manner Consistent with a Reasonable and Prudent Police Officer under the Circumstances Then and There Existing.
This allegation is pleaded very generally in the complaint. In his memorandum of law the plaintiff argues with respect to this allegation the other allegations of negligence specifically pleaded: speed, driving on the wrong side of the road, and failure to maintain a proper lookout. Since the court has already taken up each of those claims by separate analysis, there is no need to rule on this general allegation of negligence.
Proximate Cause
Having determined that there is evidence that would reasonably permit the jury to have found that Officer Grabinski was negligent in two of the ways alleged by the plaintiff, the next inquiry must focus on whether or not there was evidence adduced which would reasonably support a finding that the officer's negligence was the proximate cause of the head-on collision and the plaintiff's injuries. The guiding principles for this inquiry have very recently been stated in detail by the Supreme Court:
Essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise.
This court has recognized that in a case involving an automobile accident, a plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation. (Citations omitted. Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50 (2007).
The facts of the Winn case are compelling. The defendant, Plainville Police Officer David Posades was returning home from the police station just before the start of his midnight shift to retrieve the handcuff keys he had left at home. He was traveling west on Route 372 in his police cruiser toward the intersection with Route 177, an intersection controlled by a traffic light. He was traveling at a speed of 58 to 75 miles per hour in a 25 mph zone. He had a clear view to the south on Rt. 177, but an obstructed view to the north, the direction from which the plaintiff's decedent was approaching the intersection at a speed of 37 to 46 mph in a 35 mph zone. The plaintiff decedent proceeded directly into the path of Posades' police vehicle which struck the decedent's vehicle causing it to flip before it settled off the road. There were no skid marks in the area. The plaintiff's decedent never regained consciousness and died of his injuries nine days after the accident. Officer Posades was injured, and had no recollection of the accident or how it had occurred. There was no evidence at all concerning the status of the traffic light.
After the plaintiff rested, the defendant's motion for dismissal for failure to make out a prima facie case was granted by the trial court and affirmed by the Appellate Court. Winn v. Posades, 91 Conn.App. 610 (2005). On certification, the Supreme Court affirmed
. . . The Appellate Court properly concluded that the plaintiff had presented insufficient evidence of the actual cause, or cause in fact, of the collision. Although the plaintiff's evidence showed that Posades had been negligent or reckless in operating his police cruiser through the intersection at a highly excessive rate of speed, there was no evidence that his speed actually had caused the collision. 281 Conn. at 60.
Connecticut has not adopted the rule prevalent in other jurisdictions that proof of a material fact by inference from circumstantial evidence alone must be so conclusive as to exclude every other hypothesis. LeBlanc v. Grillo, supra, 129 Conn. 378, 381. But in considering the causation issue in cases similar to this, Connecticut courts have often taken into account the existence of factors other than the defendant's negligence as possible causes of the collision or damages. The Supreme Court in Winn quoted from Palmieri v. Macera, 146 Conn. 705, 708 (1959): "The existence of so many possibilities as to the proximate cause of this accident, together with the lack of facts pointing significantly to any one of them as due to the negligence of [defendant's decedent] renders the question of his negligence too conjectural and uncertain to warrant a verdict against the defendant." (Emphasis added.) Winn, supra, 281 Conn. at 59. The Winn court then took note of other "factual possibilities that could explain how the accident occurred": "The decedent may have run a red light . . . Alternatively the traffic light may have malfunctioned." 281 Conn. at 60-61. The court also considered a concession in the record that the plaintiff's decedent had consumed alcohol and smoked marijuana prior to the accident as a factor: ". . . other than Posades' excessive speed, including the possibility of the decedent's own impairment, [that] might have caused the accident." 281 Conn. at 60. In Toomey v. Danaher, supra, (also cited in Winn), there was no evidence as to the cause of a single car accident other than severe damage to the car and the presence of debris and skid marks on the highway. The plaintiff claimed the evidence was sufficient to show that excessive speed caused the collision with the guardrail. In overturning the verdict and directing the entry of judgment for the defendant, the court considered the possibilities, "not ruled out" that the accident was caused by a sudden mechanical failure, such as a tire blowout or a failure of the steering system, sudden illness of the driver, or a sudden emergency. 161 Conn. at 211. In Palmieri, supra, the plaintiff passenger (who was asleep at the time of the accident) claimed from circumstantial evidence that the driver (killed in the accident) had negligently fallen asleep at the wheel losing control of the car. In affirming a judgment for the defendant notwithstanding a plaintiff's verdict, the court said
. . . it is just as reasonable to suppose that any one of a number of other possibilities was the motivating factor for the erratic course which the car pursued. The operator might have been confronted by a sudden emergency not caused by his own negligence . . . or he could have blacked out from an attack of sudden illness. Indeed, he could even have been dead at the wheel when the car made the first marks upon the shoulder of the road.
After consideration of all these factors the court holds that the evidence brought forward by the plaintiff, Mr. Burton failed to prove an unbroken sequence of events that tied his injuries to Officer Grabinski's conduct. He failed to present evidence of the actual cause of the head-on collision. In reaching this conclusion the court notes the presence in the evidence of possible causes of the collision other than Officer Grabinski's negligence. For instance, there was evidence that the left front tire of the Volvo was flat after the collision. Could there have been a blowout, or some other mechanical malfunction which prevented the plaintiff from pulling over? Mr. Burton testified that he was on a trip to get takeout food at the Jamaican restaurant for himself and his supervisor. Could the food have started to fall or slip off the seat, distracting his attention? There was medical evidence that Mr. Burton had undergone a surgical procedure called a multilevel spinal decompression within one year prior to this accident, to correct a spinal stenosis. Could he have had a relapse of that condition or a painful reaction which affected his driving so as to cause this accident? There are several references in the testimony that it was raining at the time of this collision. Were the windshield wipers of his Volvo not working, or did he fail to turn them on in time, thereby obstructing his view of the oncoming police car? As in Winn, Le Blanc, Toomey, and Palmieri, supra, there is no evidence of the actual cause or cause in fact of this collision. There is a "lack of facts pointing significantly" to Officer Grabinski's negligence as the cause of the collision to the exclusion of other possible causes, such as those mentioned. There was insufficient evidence to submit the issue of causation of Mr. Burton's injuries to the jury. Part One of the defendant's motion for directed verdict is well taken, and is hereby granted.
The court originally directed a verdict for the defendant on the ground of governmental immunity, after having reserved decision on the claimed insufficiency of the plaintiff's evidence. The court later set aside that directed verdict and ordered a new trial, which was appealed by the defendant. In post-trial post-appeal proceedings the order for new trial was also vacated when the court agreed with the consent of both parties to consider the issue of the sufficiency or insufficiency of the plaintiff's evidence of negligence and causation as to which decision had been reserved during trial. The court has now determined that the evidence of causation was insufficient to go to the jury and that the motion for directed verdict on the ground of insufficiency of evidence should be granted.
The court directs that this memorandum of decision be filed with the Appellate Court as part of the record on appeal.