Graham v. Commissioner of Transportation ( 2021 )

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BARRY GRAHAM v. COMMISSIONER
OF TRANSPORTATION
(AC 43919)
Bright, C. J., and Clark and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendant Commissioner
of Transportation pursuant to the state defective highway statute (§ 13a-
144), for injuries that he sustained as a result of a motor vehicle accident
that occurred on a bridge over a public highway. The plaintiff alleged
that the accident was caused by black ice on the bridge, which he
claimed constituted a highway defect. Before the plaintiff’s accident,
the state police had informed the Department of Transportation of
another ice related accident on the bridge. The plaintiff’s accident
occurred before the arrival of the department’s crew. The case was tried
to a jury and, after three days of deliberations, the jury attempted to
return a plaintiff’s verdict while also answering ‘‘no’’ to an interrogatory
that asked the jury whether it found that the defendant had a reasonable
amount of time to remedy the defect before the plaintiff’s accident.
After the trial court returned the jury to continue its deliberations, the
jury returned with a defendant’s verdict, maintaining its ‘‘no’’ answer
to the interrogatory. The trial court accepted the verdict, denied the
plaintiff’s motion to set aside the verdict, and this appeal followed. Held:
1. The plaintiff could not prevail on his claim that the trial court abused its
discretion by refusing to accept the jury’s initial verdict and by returning
the jury to continue its deliberations to rectify an inconsistency in its
verdict: the jury found, in its answer to the interrogatory, that the defen-
dant did not have a reasonable amount of time to remedy the defect,
and, accordingly, the defendant could not be liable to the plaintiff and
the trial court correctly concluded that the initial verdict in favor of
the plaintiff was inconsistent with its response to the interrogatory;
moreover, this court did not consider the plaintiff’s claims that the
interrogatory was confusing and suffered from inartful wording because
he did not timely object to the inclusion of or to the text of the interroga-
tory before it was submitted to the jury.
2. This court declined to review the plaintiff’s claim that the trial court erred
with respect to the instruction that it gave to the jury before returning
the jury to continue its deliberations because that claim was not properly
preserved: although the plaintiff’s counsel argued that the particular
language of the supplemental charge, namely, its lack of a specific
reference to the challenged interrogatory, constituted an abuse of discre-
tion, the plaintiff’s counsel did not object to the court’s instruction prior
to the jury’s return with a defendant’s verdict, and the general comments
of the plaintiff’s counsel were neither timely nor sufficient to preserve
the issue for review by this court; moreover, even if counsel’s statements
could have been perceived as an objection to the court’s supplemental
instruction, they were not timely when they were made for the first
time after the jury returned from its deliberations and the court accepted
its verdict.
Argued May 18—officially released August 3, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of alleged highway defects, and for
other relief, brought to the Superior Court in the judicial
district of New London, where Ethan Raymond Graham,
administrator of the estate of Barry Graham, was substi-
tuted as the plaintiff; thereafter, the case was tried to
the jury before Calmar, J.; verdict for the defendant;
subsequently, the court, Calmar, J., denied the substi-
tute plaintiff’s motion to set aside the verdict and ren-
dered judgment in accordance with the verdict, from
which the substitute plaintiff appealed to this court.
Affirmed.
Ralph J. Monaco, with whom, on the brief, was Eric
J. Garofano, for the appellant (substitute plaintiff).
Paul T. Nowosadko, with whom was Lorinda S. Coon,
for the appellee (defendant).
Opinion
BEAR, J. The substitute plaintiff, Ethan Raymond
Graham, the administrator of the estate of the plaintiff,
Barry Graham,1 appeals from the judgment of the trial
court denying his motion to set aside a jury verdict in
favor of the defendant, the Commissioner of Transpor-
tation, after the jury found the defendant not liable
for the plaintiff’s motor vehicle accident and resulting
injuries under the defective highway statute, General
Statutes § 13a-144.2 On appeal, the substitute plaintiff
claims that the trial court (1) abused its discretion by
refusing to accept the jury’s initial verdict, and by
returning the jury to continue its deliberations to rectify
an inconsistency in its verdict, and (2) erred with
respect to the instruction that it gave to the jury prior
to returning the jury to continue its deliberations. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to our consideration of the substitute plaintiff’s
claims on appeal. This matter arose out of a motor
vehicle accident that occurred on December 12, 2011,
on the Gold Star Memorial Bridge (bridge) on Interstate
95 over the Thames River between New London and
Groton. The plaintiff brought this action against the
defendant pursuant to § 13a-144, the ‘‘defective highway
statute,’’ alleging that his accident was caused by black
ice, which constituted a highway defect. The defendant
filed a motion for summary judgment claiming, among
other things, a lack of notice of the icy spot on the
bridge that caused the plaintiff’s accident and that, even
if notice of the icy condition of the bridge existed,
the plaintiff’s accident occurred before there was a
reasonable amount of time to respond to and remedy
that condition. It was undisputed that another ice
related car accident had occurred on the bridge earlier
that day, at 5:40 a.m., and that the state police had
notified the Department of Transportation (depart-
ment) at 5:49 a.m. of the icy conditions on the bridge.
The defendant submitted affidavits describing the
prompt activation of the department’s after-hours call
out protocol and the activities of the department’s crew
in traveling from their homes to a department garage
in Waterford, loading a truck with salt, and driving to
the bridge. The plaintiff’s accident occurred at 6:38 a.m.,
before the arrival of the department’s crew. The trial
court granted the defendant’s motion for summary judg-
ment, concluding that, even if the defendant had con-
structive notice of the icy conditions of the bridge on the
basis of the earlier accident, the department’s response
time was reasonable as a matter of law.
On appeal, this court reversed the trial court’s grant-
ing of the defendant’s motion for summary judgment,
concluding that there were genuine issues of material
fact with respect to the reasonableness of the defen-
dant’s response after he received notice of the defect,
and that this ‘‘multifactorial determination’’ should be
made by a jury. See Graham v. Commissioner of Trans-
portation, 168 Conn. App. 570, 586, 148 A.3d 1147(2016), rev’d in part on other grounds, 330 Conn. 400,
195 A.3d 664 (2018). Our Supreme Court granted the
defendant’s petition for certification to appeal in part,
focusing on a sovereign immunity issue that is not rele-
vant to the present appeal. See Graham v. Commis-
sioner of Transportation, 330 Conn. 400, 403 n.2, 195
A.3d 664 (2018). Our Supreme Court remanded the case
for trial, noting that ‘‘the sole factual issue remaining
. . . [was] the reasonableness of the commissioner’s
response to the highway defect after receiving notice
from the state police.’’ (Emphasis in original.) Id., 427.
Because the plaintiff died during the pendency of
that appeal, following the remand, the administrator of
the plaintiff’s estate was substituted as the plaintiff.
The case was tried to a jury in November, 2019, and
the defendant maintained at trial that the department’s
crew acted reasonably and did not have time to travel
to the bridge prior to the plaintiff’s accident. The defen-
dant submitted proposed jury interrogatories to the sub-
stitute plaintiff’s counsel, who ‘‘reviewed the interroga-
tories and made a change unrelated to the present
controversy.’’ Interrogatory number four, which is cen-
tral to this appeal, provided: ‘‘Do you find that the defen-
dant had a reasonable time to remedy the specific defect
after [he] knew of it prior to the plaintiff’s accident?’’
After three days of deliberations, the jury attempted
to return a plaintiff’s verdict while also answering ‘‘no’’
to interrogatory number four (initial verdict).3 The court
thereafter stated: ‘‘Ladies and gentlemen of the jury, it is
apparent to me, from a review of the jury interrogatories
and verdict form that you have submitted, that you’ve
made a mistake. Specifically, I’m returning you to the
jury deliberation room to reconsider your verdict in
light of the jury interrogatories and to correct that mis-
take. If you need portions of the evidence or charge
reread to assist you, please provide me with a note in
accordance with the procedures I’ve previously
described. I think at this stage that’s all I’ll say. And if
you need further guidance, you can advise me accord-
ingly.’’ There was no contemporaneous objection to the
court’s instruction. The jury returned a few minutes
later with a defendant’s verdict, maintaining its ‘‘no’’
answer to interrogatory number four. The court
accepted the verdict. The substitute plaintiff thereafter
filed a motion to set aside the verdict, which the court
denied. This appeal followed.
I
The substitute plaintiff claims that the trial court
abused its discretion by refusing to accept the initial
verdict and by returning the jury to its deliberations to
rectify the inconsistency in that verdict. Specifically,
the substitute plaintiff argues that the initial verdict
was ‘‘supported by the answers to interrogatories [one,
two, three, five, and six],4 taken in combination with
the presumption that the jury followed the jury charge,’’
and that, because interrogatory number four ‘‘contains
language that is markedly different than the jury
charge,’’ therefore ‘‘[t]he negative answer to [interroga-
tory number four] does not defeat the plaintiff’s ver-
dict.’’ (Footnote added.) Additionally, the substitute
plaintiff argues that ‘‘there was extensive evidence of
prior accidents on the bridge covered with ice to allow
the jury to make a fact specific determination that the
[department’s] response time was not reasonable.’’ We
are not persuaded.
We begin with our standard of review. ‘‘The proper
appellate standard of review when considering the
action of a trial court in granting or denying a motion
to set aside a verdict 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 required only [when] an abuse of dis-
cretion is manifest or [when] injustice appears to have
been done. . . . [T]he role of the trial court on a motion
to set aside the jury’s verdict is not to sit as [an addi-
tional] juror . . . but, rather, to decide whether, view-
ing the evidence in the light most favorable to the pre-
vailing party, the jury could reasonably have reached
the verdict that it did. . . . In reviewing the action of
the trial court in denying [or granting a motion] . . .
to set aside the verdict, our primary concern is to deter-
mine whether the court abused its discretion . . . .’’
(Internal quotation marks omitted.) Rendahl v. Peluso,
173 Conn. App. 66, 94–95, 162 A.3d 1 (2017).
Additionally, this court stated in Rendahl that, ‘‘[p]ur-
suant to General Statutes § 52-223, [t]he court may, if
it judges the jury has mistaken the evidence in the action
and has brought in a verdict contrary to the evidence,
or has brought in a verdict contrary to the direction of
the court in a matter of law, return them to a second
consideration, and for the same reason may return them
to a third consideration. The jury shall not be returned
for further consideration after a third consideration.
See also Practice Book § 16-17. . . .
‘‘A trial court may decline to accept a verdict and
return the jury to continue its deliberations when the
verdict form or accompanying interrogatories, if any:
are legally inconsistent; e.g., Bilodeau v. Bristol, 38
Conn. App. 447, 455, 661 A.2d 1049 ([w]here answers
to interrogatories are inconsistent, trial court has duty
to attempt to harmonize the answers), cert. denied, 235
Conn. 906, 665 A.2d 899 (1995); contain incomplete
findings as to the essential elements of a cause of action
or fail to completely dispose of an essential issue; e.g.,
Tisdale v. Riverside Cemetery Assn., 78 Conn. App.
250, 258–60, 826 A.2d 232, cert. denied, 266 Conn. 909,
832 A.2d 74 (2003); or are so ambiguous that the verdict
cannot be said to contain an intelligible finding . . . .’’
(Internal quotation marks omitted.) Rendahl v. Peluso,
supra, 173 Conn. App. 95–96; see also Kregos v. Stone,
88 Conn. App. 459, 470, 872 A.2d 901 (‘‘[a] verdict that
is inconsistent or ambiguous should be set aside’’), cert.
denied, 275 Conn. 901, 882 A.2d 672 (2005).
In the present case, interrogatory number four asked
the jury to determine whether the defendant had a rea-
sonable amount of time to remedy the specific defect
of an icy road surface after he became aware of the
defect prior to the plaintiff’s accident. The jury found
that he did not have a reasonable time to remedy the
highway defect. Because the jury found that he did not
have a reasonable amount of time to remedy the defect
after receiving notice of the icy condition of the bridge,
the defendant could not be liable to the plaintiff. See
Graham v. Commissioner of Transportation, supra,
168 Conn. App. 584–85. Thus, the trial court correctly
concluded that the initial verdict of the jury in favor of
the plaintiff was inconsistent with the jury’s response
to interrogatory number four. The court’s decision not
to accept the inconsistent verdict but to return the jury
for further deliberations was not an abuse of discretion.
The substitute plaintiff attempts to avoid this result
by focusing on the difference in language between inter-
rogatory number four, ‘‘[d]o you find that the [defen-
dant] had a reasonable time to remedy the specific
defect after [he] knew of it prior to the plaintiff’s acci-
dent,’’ and the language of the jury charge, whether
the defendant ‘‘failed to remedy the defect within a
reasonable time when considering all the circum-
stances.’’ In the substitute plaintiff’s view, ‘‘considering
all the circumstances’’ is a significant enough variation
from the language of interrogatory number four that a
negative answer to interrogatory number four would
not defeat a plaintiff’s verdict. In other words, the sub-
stitute plaintiff would have us ignore interrogatory num-
ber four on the ground that it does not exactly mirror
the jury charge and hold, instead, that all of the elements
of the plaintiff’s highway defect claim had been proven
on the basis of the other interrogatories.
The substitute plaintiff, however, did not timely
object either to the inclusion of or to the text of interrog-
atory number four before it was submitted with the
other interrogatories to the jury. Prior to the filing of
the defendant’s proposed interrogatories with the court,
the substitute plaintiff’s counsel had the opportunity to
review them and did, in fact, suggest a change to be
made to one of those interrogatories, other than inter-
rogatory number four. On appeal, the substitute plaintiff
claims for the first time that interrogatory number four
was ‘‘confus[ing],’’ suffered from ‘‘inartful wording,’’
and erroneously ‘‘combine[d] the issue of ‘reasonable
time’ with the analysis of causation’’—defects that he
now claims are severe enough to warrant overturning
the jury’s subsequent defendant’s verdict. In light of the
failure of the substitute plaintiff’s counsel to timely
object to the inclusion or to the wording of interrogatory
number four during trial, we will not consider those
claims on appeal. See Mokonnen v. Pro Park, Inc., 113
Conn. App. 765, 770–71, 982 A.2d 916 (2009) (‘‘We may
presume from the plaintiff’s repeated failure to object
to the interrogatories that he agreed to their content
and their submission to the jury. . . . The plaintiff’s
claimed error was never distinctly raised at trial, and,
accordingly, it was not preserved for appeal.’’ (Citation
omitted.)).
‘‘It is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review to
issues that are distinctly raised at trial. . . . [O]nly in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court. . . .
The reason for the rule is obvious: to permit a party to
raise a claim on appeal that has not been raised at trial—
after it is too late for the trial court or the opposing
party to address the claim—would encourage trial by
ambuscade, which is unfair to both the trial court and
the opposing party. . . . [S]ee . . . Practice Book
§ 60-5 (court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial).’’ (Citation omitted; internal quotation
marks omitted.) Alpha Beta Capital Partners, L.P. v.
Pursuit Investment Management, LLC, 193 Conn. App.
381, 454–55, 219 A.2d 801 (2019), cert. denied, 334 Conn.
911, 221 A.3d 446 (2020).
II
The substitute plaintiff next claims that ‘‘after the
trial court declined to accept the [initial verdict], it
erroneously instructed the jury by failing to express
the court’s concern regarding one answer to [the] jury
interrogatories.’’ The substitute plaintiff argues that it
was an abuse of discretion for the trial court to instruct
the jury that it believed the jury had ‘‘ ‘made a mistake,’ ’’
without any ‘‘specific instruction about the court’s con-
cern regarding [interrogatory number four],’’ and that
the court’s instruction ‘‘left the jury confused and with-
out guidance pertaining to the court’s concern.’’ The
substitute plaintiff claims that, in light of the court’s
instruction, the jury was left with ‘‘only . . . two
options: plaintiff’s verdict or defendant’s verdict. After
the court told [the jury] that [it] made a mistake, the
jury returned the only other option, a defendant’s ver-
dict.’’ We conclude that this claim was not properly
preserved, and, thus, we decline to review it.
The following additional facts are necessary for an
understanding of the substitute plaintiff’s claim. After
the jury returned its initial verdict, the court instructed
the jury regarding its mistake and returned the jury to
its deliberations to rectify it. The substitute plaintiff’s
counsel did not object to the court’s instruction prior
to the jury’s return with a defendant’s verdict. There-
after, the substitute plaintiff’s counsel stated: ‘‘I’m very
concerned that, you know, within the course of ten
minutes they’ve gone from a plaintiff’s verdict and now
have turned around and—you know, because the court
sent them back, my concern is that they’re very con-
fused—they thought you didn’t like that verdict; you
thought that was the wrong verdict. And I know that’s
not what the court intended to do, but I fear that these
people are—you know, thought that, okay, we came
out with a plaintiff’s verdict, judge didn’t like it, sent
us back, said, you know, rethink it; and so now we’ve
come out with a defendant’s verdict and the judge
accepted that and we’re all done.
‘‘So I think what we have here, Your Honor, is a
confused jury. We’ve been at this now for—they’ve been
at it for three days. As long as the case [was] tried
they’ve been deliberating. And I don’t think it’s fair to
accept the verdict, Your Honor, in this state. It’s clear
to me that, you know, they—I mean, they obviously
thought that there should be an award of damages: they
filled out that form; they were thoughtful in filling it
out; it’s not for what I asked for—it’s for significantly
less than what I asked for—but nevertheless, they filled
it out. And so I think, you know, we have here a jury
that returned a plaintiff’s verdict; you didn’t accept it;
you sent them back; and they said, okay, here’s a defen-
dant’s verdict. There are only two options.
‘‘So I’m concerned that, you know, we have a jury
here that really is very confused about the law, and I
don’t think it’s fair, Your Honor, to accept the verdict
based on the obvious confusion that has been mani-
fested by the course of events over the last few
minutes.’’
The substitute plaintiff argues that those comments
of counsel ‘‘represent an explicit objection to the sup-
plemental charge.’’ We disagree. The comments of the
substitute plaintiff’s counsel following the defendant’s
verdict state, with respect to the supplemental charge,
that ‘‘the court sent them back,’’ and that the judge
‘‘didn’t like [the initial verdict], sent us back, said, you
know, rethink it . . . .’’ On appeal, the substitute plain-
tiff now argues that the particular language of the sup-
plemental charge, namely, its lack of a specific refer-
ence to interrogatory number four, constituted an abuse
of discretion. The general comments of the substitute
plaintiff’s counsel, however, were neither timely nor
sufficient to preserve this issue for our review.
‘‘[T]he determination of whether a claim has been
properly preserved will depend on a careful review of
the record to ascertain whether the claim on appeal
was articulated below with sufficient clarity to place
the trial court [and the opposing party] on reasonable
notice of that very same claim.’’ (Internal quotation
marks omitted.) Alpha Beta Capital Partners, L.P. v.
Pursuit Investment Management, LLC, supra, 193
Conn. App. 455.
The substitute plaintiff’s counsel did not object to
the court’s supplemental instruction after it was given,
and counsel’s general comments following the jury’s
final verdict did not articulate with sufficient clarity an
objection to the precise language of that supplemental
instruction. Even if counsel’s statements could be per-
ceived as an objection to the court’s supplemental
instruction, they were not timely when they were made
for the first time after the jury returned from its delibera-
tions and the court accepted its verdict.5 Therefore, we
decline to review this claim because it was not properly
preserved. See Szekeres v. Szekeres, 126 Conn. App.
829, 847 n.7, 16 A.3d 713 (Because the plaintiffs ‘‘did
not take exception to the court’s instructions to the
jury and did not object to the verdict form and interroga-
tories, their claims are unpreserved. Accordingly, we
decline to review them.’’), cert. denied, 300 Conn. 939,
17 A3d 475 (2011), and cert. denied, 300 Conn. 940, 17
A.3d 475 (2011).
The judgment is affirmed.
In this opinion the other judges concurred.
1
On April 8, 2019, Ethan Raymond Graham was substituted as the plaintiff
in his capacity as the administrator of the plaintiff’s estate following the
plaintiff’s death on March 8, 2018. In this opinion, we refer to Ethan Raymond
Graham as the substitute plaintiff and to Barry Graham as the plaintiff.
2
General Statutes § 13a-144 provides in relevant part: ‘‘Any person injured
in person or property through the neglect or default of the state or any of
its employees by means of any defective highway . . . which it is the duty
of the Commissioner of Transportation to keep in repair . . . may bring a
civil action to recover damages sustained thereby against the commissioner
in the Superior Court. . . .’’
3
The parties disagree with respect to whether the so-called initial verdict
was technically a verdict, because it was not accepted by the court. We,
however, for convenience, refer to the jury’s attempt to return a plaintiff’s
verdict, while answering ‘‘no’’ to interrogatory number four, as the initial
verdict, although it was not accepted by the court.
4
The interrogatories, and the jury’s answers to them, were: ‘‘1. Do you
find that the Gold Star Memorial Bridge northbound at the location of the
alleged accident was reasonably safe for the reasonably prudent traveler at
the time of [the plaintiff’s] accident? No. 2. Do you find that the ice on the
bridge was such that it ‘would necessarily obstruct or hinder one in the use
of the road for purposes of traveling thereon?’ Yes. 3. Do you find that
before the plaintiff’s accident the defendant actually knew of the specific
defect which the plaintiff alleges caused his accident? Yes. 4. Do you find
that the defendant had a reasonable time to remedy the specific defect after
[he] knew of it prior to the plaintiff’s accident? No. 5. Do you find that the
plaintiff was in the exercise of due care at the time of the accident? Yes.
6. Do you find that the alleged highway defect was the only substantial
factor causing the plaintiff’s claimed injuries? Yes.’’
5
The substitute plaintiff suggested in his reply brief and his counsel sug-
gested in his oral argument before this court that there was insufficient
time for him to raise an objection to the court’s supplemental instruction
when it returned the jury for further deliberations because of how quickly
the jury returned with its final verdict. We disagree. It would have taken
the substitute plaintiff’s counsel a mere moment to voice an objection, ask
the court to tell the jury to suspend deliberations while he considered his
options, or ask that the court not have the jury return its final verdict until
he decided if he wanted to request a further instruction from the court. In
fact, before the jury returned its final verdict, the defendant’s counsel
objected ‘‘to the jury being sent out again’’ and asked for a directed verdict.
Clearly, the substitute plaintiff’s counsel could have raised any issues he
had at the same time.