Farmer-Lanctot v. Shand , 184 Conn. App. 249 ( 2018 )

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ELLEN FARMER-LANCTOT v. MATTHEW SHAND
(AC 39817)
Prescott, Elgo and Blawie, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries she sustained
as a result of the alleged negligence of the defendant in his operation
of a motor vehicle. At approximately 10:30 p.m., the defendant was
driving his car toward the exit of a residential subdivision. At the same
time, the plaintiff was walking with a group of individuals down the
road. Specifically, the plaintiff was walking in the middle of the exit
road when the defendant’s car traveled around a curve at the bottom
of a hill onto the exit, spotted the group walking in the road, and stopped
prior to reaching the group. The plaintiff, upon seeing the defendant’s
headlights, jumped out of the road and into the grassy center island of
the exit road, believing that the defendant was going to hit her. The
plaintiff suffered a broken arm and subsequently commenced the present
action, alleging, inter alia, that her injuries were proximately caused by
the defendant’s negligence. The defendant, in his answer, denied that
he was negligent in the operation of his vehicle and as a special defense,
alleged that the plaintiff’s own negligence was the proximate cause of
her injuries. The jury returned a general verdict in favor of the defendant,
but no interrogatories were submitted to it, and the trial court rendered
judgment in accordance with the verdict. On appeal to this court, the
plaintiff claimed that the trial court improperly denied her request for
a jury charge on the sudden emergency doctrine, the standard of care
for a pedestrian in a roadway, and the defendant’s duty to yield to
pedestrians when making a right-hand turn. Held that the trial court
properly declined to instruct the jury in accordance with the model
instructions regarding crossing at a crosswalk: there was no evidence
in the record to suggest that the plaintiff was at or near a regular crossing,
a crossing at an intersection of roads, or a crossing regulated by traffic
signals, and, instead, there was uncontradicted evidence that the plaintiff
was walking in the middle of the road coming up the street and was
twenty-five feet from the corner, and, thus, the instruction sought by
the plaintiff could have misled the jury because there were no facts in
the record to support a finding that the plaintiff was at or near a regular
crossing or that the defendant was turning into a different street; more-
over, under the general verdict rule, this court, having resolved the
plaintiff’s sole challenge to the court’s jury instructions as to negligence
and concluded that there was no error, was required to presume that
the jury found that the defendant was not negligent, and, thus, the
general verdict rule precluded review of the plaintiff’s remaining claims
relating to the instructions on contributory negligence.
Argued April 9—officially released August 14, 2018
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff allegedly caused by the defen-
dant’s negligent operation of a motor vehicle, and for
other relief, brought to the Superior Court in the judicial
district of Hartford and tried to a jury before Dubay,
J.; verdict and judgment for the defendant, from which
the plaintiff appealed to this court. Affirmed.
Juri E. Taalman, with whom, on the brief, were
Taylor Equi and Timothy Brignole, for the appellant
(plaintiff).
Jude Francois, for the appellee (defendant).
Opinion
ELGO, J. In this negligence action, the plaintiff, Ellen
Farmer-Lanctot, appeals from the judgment rendered
on a general verdict in favor of the defendant, Matthew
Shand. On appeal, the plaintiff claims that the trial court
improperly denied the plaintiff’s request for a jury
charge on (1) the sudden emergency doctrine, (2) the
standard of care for a pedestrian in a roadway, and
(3) the defendant’s duty to yield to pedestrians when
making a right-hand turn. We disagree and, accordingly,
affirm the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On December 31, 2014, the plaintiff and her husband
attended a New Year’s Eve gathering hosted by Lisa
Salazar and Mike Kraman at their residence in the Wynd-
ing Hills Road residential subdivision in East Granby
(Wynding Hills). Attendees of the gathering also
included Carol Lindberg and five others. At approxi-
mately 9 p.m. the plaintiff and other attendees of the
gathering left the residence and headed out to take a
hike through the woods up to a cliff. The group was
equipped with headlamps and lights for the hike.
On their way back from the cliff, the group walked
down Tunxis Avenue toward Wynding Hills to return
to the Salazar and Kraman residence. The group walked
into the exit road of the subdivision and began
ascending a hill. A grassy center island of the road
separated the entrance road and the exit road of the
subdivision. At some point prior to walking into the
exit of Wynding Hills, the group shut off their lights.
At approximately 10:30 p.m., a car, driven by the defen-
dant, was traveling downhill in Wynding Hills toward
the exit. At the time, the plaintiff was in the middle of
the exit road with Carol Lindberg and was walking up
the road. The car traveled around a curve at the bottom
of the hill onto the Wynding Hills exit road, spotted the
group walking in the road, and stopped prior to reaching
the group. Upon seeing the headlights of the defendant’s
car approaching, the plaintiff jumped out of the road
and into the grassy center island of the road approxi-
mately twenty-five feet from the curve. The plaintiff
testified that she jumped out of the road and over the
front corner of the defendant’s vehicle because she
thought that she was going to be hit by the defendant’s
vehicle. Consequently, the plaintiff suffered a broken
arm.
The plaintiff subsequently commenced the present
action, claiming that she suffered personal injuries, eco-
nomic damages, and noneconomic damages of pain and
suffering proximately caused by the defendant’s negli-
gence. In his answer, the defendant denied that he was
negligent in the operation of his vehicle. In addition,
as a special defense, the defendant alleged that the
plaintiff’s own negligence was the proximate cause of
her injuries. The case was tried to a jury, but no interrog-
atories were submitted to it. Following trial, the jury
returned a general verdict in favor of the defendant and
the court rendered judgment accordingly. This appeal
followed.
Before addressing the merits of the plaintiff’s claim,
we first determine whether the general verdict rule
applies and precludes our review.1 ‘‘Under the general
verdict rule, if a jury renders a general verdict for one
party, and no party requests interrogatories, an appel-
late court will presume that the jury found every issue
in favor of the prevailing party. . . . Thus, in a case in
which the general verdict rule operates, if any ground
for the verdict is proper, the verdict must stand; only
if every ground is improper does the verdict fall. . . .
The rule rests on the policy of the conservation of
judicial resources, at both the appellate and trial lev-
els. . . .
‘‘On the appellate level, the rule relieves an appellate
court from the necessity of adjudicating claims of error
that may not arise from the actual source of the jury
verdict that is under appellate review. In a typical gen-
eral verdict rule case, the record is silent regarding
whether the jury verdict resulted from the issue that
the appellant seeks to have adjudicated. Declining in
such a case to afford appellate scrutiny of the appel-
lant’s claims is consistent with the general principle of
appellate jurisprudence that it is the appellant’s respon-
sibility to provide a record upon which reversible error
may be predicated. . . .
‘‘In the trial court, the rule relieves the judicial system
from the necessity of affording a second trial if the
result of the first trial potentially did not depend upon
the trial errors claimed by the appellant. Thus, unless
an appellant can provide a record to indicate that the
result the appellant wishes to reverse derives from the
trial errors claimed, rather than from the other, indepen-
dent issues at trial, there is no reason to spend the
judicial resources to provide a second trial. . . .
‘‘Therefore, the general verdict rule is a rule of appel-
late jurisprudence designed to further the general prin-
ciple that it is the appellant’s responsibility to provide
a record upon which reversible error may be predicated.
. . . A party desiring to avoid the effects of the general
verdict rule may elicit the specific grounds for the ver-
dict by submitting interrogatories to the jury. . . .
‘‘[Our Supreme Court] has held that the general ver-
dict rule applies to the following five situations: (1)
denial of separate counts of a complaint; (2) denial of
separate defenses pleaded as such; (3) denial of sepa-
rate legal theories of recovery or defense pleaded in
one count or defense, as the case may be; (4) denial of
a complaint and pleading of a special defense; and (5)
denial of a specific defense, raised under a general
denial, that had been asserted as the case was tried but
that should have been specially pleaded.’’ (Citations
omitted; internal quotation marks omitted.) Dowling v.
Finley Associates, Inc., 248 Conn. 364, 371–72, 727 A.2d
1245 (1999).
This case falls within the fourth situation listed in
Dowling—denial of a complaint and pleading of a spe-
cial defense. In the present case, the defendant’s answer
denied the plaintiff’s allegations of negligence as set
forth in the complaint. The defendant also alleged that
the plaintiff’s own negligence was the proximate cause
of her injuries. ‘‘[A defendant’s] denial of negligence and
[his] allegation of contributory negligence constitute[s]
two separate and distinct defenses, either one of which
could support the jury’s general verdict.’’ Morales v.
Moore, 85 Conn. App. 208, 210–11, 855 A.2d 1041 (2004).
The plaintiff contests the propriety of the court’s
charge as to negligence and contributory negligence.
With respect to the negligence charge, the plaintiff
claims that the court improperly denied her request to
instruct the jury on the defendant’s duty to yield to
pedestrians when making a right-hand turn. As to the
special defense of contributory negligence, the plaintiff
claims that the court improperly denied her request to
instruct the jury on the sudden emergency doctrine and
the standard of care for a pedestrian in a roadway. If
there is no reversible error in the charge as to the
defendant’s negligence, the general verdict must be
affirmed and the claimed errors relating to contributory
negligence need not be considered. See Cuartas v.
Greenwich, 14 Conn. App. 370, 373–374 n.2, 540 A.2d
1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988);
see also Johnson v. Pagano, 184 Conn. 594, 597, 440
A.2d 244 (1981). ‘‘[I]f any of the court’s instructions are
shown to be proper and adequate as to any one of the
defenses raised, the general verdict will stand irrespec-
tive of any error in the charge as to the others.’’ Colucci
v. Pinette, 185 Conn. 483, 490, 441 A.2d 574 (1981).
Thus, we first consider the plaintiff’s specific claim
pertaining to the court’s instructions to the jury regard-
ing negligence.
The plaintiff’s sole challenge in this regard is that the
trial court improperly declined to instruct the jury in
accordance with the plaintiff’s request to charge on ‘‘the
defendant’s duty to yield to pedestrians when making
a right-hand turn.’’ We disagree.
‘‘[O]ur standard of review concerning preserved
claims of improper jury instruction is well settled. . . .
A jury instruction must be considered in its entirety,
read as a whole, and judged by its total effect rather
than by its individual component parts. . . . [T]he test
of a court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . . Therefore,
[o]ur standard of review on this claim is whether it is
reasonably probable that the jury was misled.’’ (Internal
quotation marks omitted.) DeMatteo v. New Haven, 90
Conn. App. 305, 307–308, 876 A.2d 1246, cert. denied,
275 Conn. 931, 883 A.2d 1242 (2005). ‘‘The instruction
must be adapted to the issues and may not mislead
the jury but should reasonably guide it in reaching a
verdict.’’ (Internal quotation marks omitted.) Opotzner
v. Bass, 63 Conn. App. 555, 558, 777 A.2d 718, cert.
denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied,
259 Conn. 930, 793 A.2d 1086 (2002).
‘‘The principal function of a jury charge is to assist
the jury in applying the law correctly to the facts which
[it] might find to be established . . . . The purpose of
a request to charge is to inform the trial court of a
party’s claim of the applicable principle of law. . . . In
determining whether a trial court improperly declined
to instruct the jury in accordance with a party’s request
to charge, we review the evidence presented at trial in
the light most favorable to supporting the . . . pro-
posed charge. . . . A request to charge which is rele-
vant to the issues of [a] case and which is an accurate
statement of the law must be given. . . . It follows
from this principle, however, that a request to charge
must be an accurate statement of the law. . . . Indeed,
it is axiomatic that a trial court should not instruct the
jury in accordance with a request to charge unless the
proposed instruction is a correct statement of the gov-
erning legal principles.’’ (Citations omitted; internal
quotation marks omitted.) Doe v. Saint Francis Hospi-
tal & Medical Center, 309 Conn. 146, 173–74, 72 A.3d
929 (2013). ‘‘Conversely, [t]he trial court has a duty not
to submit any issue to the jury upon which the evidence
would not support a finding. . . . Accordingly, the
right to a jury instruction is limited to those theories
for which there is any foundation in the evidence.’’
(Citation omitted; internal quotation marks omitted.)
Bostic v. Soucy, 82 Conn. App. 356, 359, 844 A.2d 878,
cert. denied, 269 Conn. 912, 852 A.2d 738 (2004).
The plaintiff requested that the court provide the jury
with the following instructions: ‘‘It is important to note
that a driver of an automobile turning from one road
to another, the operator must do so with regard not
only to the pedestrian who may be on the regular cross-
ing, but also to any person or vehicle lawfully on the
highway immediately beyond and close to the highway.
And a pedestrian under such circumstances has the
right-of-way over a car making a turn.’’ The plaintiff
avers that the instructions provide that the defendant
has a ‘‘duty to yield to pedestrians when making a right-
handed turn’’ and such requested instructions are in
accordance with Wright & Ankerman, 2 Connecticut
Jury Instructions (4th Ed.) § 587, which is titled ‘‘Cross-
ing at Crosswalk.’’ Subsection (d) of § 587 provides: ‘‘A
driver of an automobile turning into a street must do
so with due regard not only to the pedestrian who may
be on the regular crossing, but also to any person or
vehicle lawfully on the highway immediately beyond
and close to the highway. And a pedestrian under such
circumstances has the right of way over a car making
a turn.’’
We note that the plaintiff’s briefing of this issue bor-
ders on inadequate as she fails to provide citations to
facts in the record to establish that the plaintiff was
entitled to such an instruction, and fails to cite to any
appellate authority in support of her position. Nonethe-
less, our review of the evidence presented at trial
reveals that the court properly declined to instruct the
jury as requested.
The undisputed testimony and documentary evidence
in the present case indicated that at approximately 10:30
p.m. the defendant was traveling around a curve as he
made his way toward the exit of Wynding Hills, not
executing a right-hand turn. After the defendant com-
pleted navigating the curve, he stopped approximately
five feet down the road. There is no evidence in the
record to suggest that the plaintiff was at or near a
regular crossing, a crossing at an intersection of roads,
or a crossing regulated by traffic signals. Instead, there
is uncontradicted evidence that the plaintiff was walk-
ing in the middle of the road ‘‘coming up the street’’
and that the plaintiff was ‘‘[twenty-five] feet from the
corner.’’ Indeed, in this case, the instruction sought by
the plaintiff could have misled the jury because there
are no facts in the record to support a finding that the
plaintiff was at or near a regular crossing nor that the
defendant was turning into a different street. As pre-
viously stated, the court has a duty not to submit any
issue to the jury on which the evidence would not sup-
port a finding. Accordingly, when viewing the evidence
in the light most favorable to supporting the plaintiff’s
charge, we conclude that the court properly declined
to instruct the jury in accordance with the model
instructions provided in § 587 (d).
This court having resolved the plaintiff’s sole chal-
lenge to the court’s jury instructions as to negligence
and having concluded that there is no error, the general
verdict rule requires us to presume that the jury found
that the defendant was not negligent.2 Therefore, the
general verdict rule precludes our review of the plain-
tiff’s remaining claims relating to the instructions on
contributory negligence, and the verdict must stand.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the parties did not brief the issue of the general verdict rule, we
raised the issue at oral argument and the parties did not seek supplemental
briefing. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, 311 Conn. 123, 163 n.35, 84 A.3d 840 (2014) (‘‘this court occa-
sionally has raised an issue sua sponte when the parties have misconstrued
or overlooked the applicable law and the failure to raise the issue would
result in the creation of unsound or questionable precedent or an inconsis-
tency in the law’’).
2
In her brief, the plaintiff states that the trial court’s failure to give her
request to charge constitutes reversible harm. ‘‘Determining that the court’s
charge was improper . . . does not end our inquiry. We must also determine
whether the error was harmful before a new trial can be ordered. . . . [I]t
is axiomatic . . . that not every error is harmful. . . . [W]e have often
stated that before a party is entitled to a new trial . . . he or she has the
burden of demonstrating that the error was harmful. . . . An instructional
impropriety is harmful if it is likely that it affected the verdict.’’ (Citation
omitted; internal quotation marks omitted.) DeMatteo v. New Haven, 90
Conn. App. 305, 310–11, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d
1242 (2005). We note, however, that the plaintiff merely asserts that the
alleged error was harmful and failed to analyze the issue of harm. ‘‘We are
not required to review issues that have been improperly presented to this
court through an inadequate brief. . . . Analysis, rather than [mere] abstract
assertion, is required in order to avoid abandoning an issue by failure to brief
the issue properly.’’ (Internal quotation marks omitted.) Bicio v. Brewer,
92 Conn. App. 158, 172, 884 A.2d 12 (2005). Assuming arguendo that any of
alleged improprieties were in fact improper, the plaintiff’s claims would
not succeed due to her failure to brief the issue adequately and failure to
demonstrate that the alleged error affected the verdict.