Opinion
NNHCV166060268
07-23-2019
Janice MASLER v. Michelle MANGUILLI et al.
UNPUBLISHED OPINION
OPINION
Ozalis, J.
This memorandum of decision is issued in connection with the defendants Michelle Manguilli’s and Carolyn Curry’s (Defendants) Motion to Set Aside Verdict filed on June 6, 2018.
The defendants have moved to set aside the verdict entered against them on May 31, 2019 in the amount of $100,411.13 on the following grounds: (1) the trial court committed error in denying defendants’ request to amend their answer to add special defenses; (2) the court erred by allowing into evidence plaintiff’s statements in a police report; and (3) the court erred in not charging the jury on the sole proposed non-standard charge that defendants submitted to the court. Plaintiff filed an opposition to this Motion to Set Aside Verdict and oral argument was heard on this motion on July 15, 2019.
I.
FACTUAL BACKGROUND
This action was commenced on January 26, 2016, by the plaintiff Janice Masler as against defendants Michelle Manguilli and Carolyn Curry. This case arises out of a motor vehicle accident that occurred on February 17, 2014 on Interstate Route-91 (I-91), wherein the plaintiff alleged that she was traveling northbound and was switching lanes from the left lane into the right center lane, when defendant Manguilli hit the rear of her vehicle while also attempting to move into the right center lane. At trial, defendant Manguilli did not dispute that she was attempting to move into the right center lane or that the plaintiff was situated ahead of her in the right center lane when the cars collided. The plaintiff offered evidence that after defendant Manguilli struck her car, plaintiff’s car flipped over two times and ended upright on the southbound side of I-91. The plaintiff claimed serious injuries to her back as a result of the accident.
The jury reached a verdict on May 31, 2019, in favor of the plaintiff. In reaching its verdict on May 31, 2019, the jury answered jury interrogatories, including an interrogatory that found that defendant Michelle Manguilli was negligent in the operation of her motor vehicle. The jury also found that the defendant Michelle Manguilli’s negligent acts did proximately cause some of plaintiff’s claimed injuries. The jury awarded the plaintiff $9,824.51 in medical bills, $586.62 in lost wages and $90,000 in non-economic damages.
II.
DISCUSSION
A. Motion to Set Aside Verdict
A motion to set aside or open a civil judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion ... This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury ..." (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010). "The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury." Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449 (1986). A verdict may also "he set aside if its result justifies a suspicion that a juror or jurors were influenced by prejudice, corruption or partiality." (Citation omitted.) Novak v. Scalesse, 43 Conn.App. 94, 97-8, 681 A.2d 968, cert. granted, 239 Conn. 925, 682 A.2d 1004 (1996).
"A motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach ... [i]f the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict ... Thus, the role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did ... As a corollary, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is ... palpably against the evidence." (Citations omitted; internal quotation marks omitted.) Marciano v. Kraner, 126 Conn.App. 171, 177, 10 A.3d 572, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).
A. Request to Amend Answer
The defendants first contend that the jury’s verdict in favor of the plaintiff should be set aside on the ground that this court erred "in denying the defendant’s request to amend their Answer to include a Special Defense of comparative liability." (Def. Motion to Set Aside p. 1.) The defendants contend that "the jury was not given an instruction as to comparative negligence and therefore could not reduce the plaintiff’s award despite evidence to suggest at least partial liability on the part of the plaintiff." (Def. Mem. Motion to Set Aside p. 3.) Defendants’ argument is unavailing for the following reasons.
First, the defendants do not point to any section of the record where they ever requested a charge for comparative negligence. Second, the trial record reflects that defendants made no motions to amend their Answer during trial, nor after evidence concluded, to conform to the alleged evidence admitted at trial and have not pointed to any such motions in the trial record. Third, after the charge was given to the jury, defendants’ counsel, Attorney Mautner, stated he had no exceptions to the jury charge given. (Trial Tr. 68.)
Fourth, the pleading history in this case does not support defendants’ argument they were treated unfairly by the court. This action was commenced on January 26, 2016. The defendants filed an answer to the plaintiff’s complaint on October 18, 2016, and asserted no special defenses. (Docket No. 114.) For three years while the case was pending and after trial was continued five times, the defendants asserted no special defenses. On May 22, 2019, on the eve of trial during jury selection, the defendants for the first time filed a Request to Amend their answer to assert five new special defenses. (Docket No. 141.) While defendants claimed in their Request to Amend that such request was based on "additional information recently obtained through investigation and discovery" defendants failed to cite any newly discovered information upon which the Request to Amend was based upon. (Docket No. 141.) On May 24, 2019, the plaintiff filed an objection to defendants’ Request to Amend citing two grounds: (1) such request was untimely, not based on newly discovered evidence; and (2) it was prejudicial in that the case would have been handled differently if it was disclosed earlier that the defendants were blaming the plaintiff for the accident and that the plaintiff at a minimum would have taken the deposition of defendant Manguilli. (Docket No. 143.) On May 28, 2019, this court denied the defendants’ Request to Amend on the following grounds: "[T]his case has been pending for over 3 years and defendant has not asserted any special defenses during that time period. To allow defendant to assert multiple special defenses on the eve of trial that already been continued five times would be too prejudicial to the plaintiff and would unduly delay trial in this mater. Request to amend to assert special defenses is denied." (Docket No. 141.10.)
"The law is well-settled that belated amendments to the pleadings rest in the sound discretion of the trial court ... [Although] our courts have been liberal, in permitting amendments ... this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment ... The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of the pleadings so far as necessary to prevent unreasonable delay of the trial ... On rare occasions, this court has found an abuse of discretion by the trial court in determining whether an amendment should be permitted ... but we have never found an abuse of discretion in denying an amendment on the eve of trial, long after the conclusion of pretrial proceedings." Watson Real Estate, LLC v. Woodland Ridge, LLC, 187 Conn.App. 282, 300, 202 A.3d 1033 (2019).
In this case, the defendants waited until jury selection was underway to request leave to amend their Answer to assert five new special defenses, including a statutory negligence defense. Our Supreme Court has stated that "[t]he fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
As the defendants waited over three years after this case had been filed, until jury selection had commenced to request permission to amend their Answer to add five new special defenses of comparative negligence, which plaintiff contended was unduly prejudicial to her, this court finds that it was well within its discretion to deny defendants’ May 22, 2019 Request to Amend.
Accordingly, defendants’ Motion to Set Aside the Verdict on this ground is denied.
B. Court’s Denial of Defendants’ Proposed Request to Charge
The defendants next contend that the jury’s verdict in favor of the plaintiff should be set aside on the ground that this court improperly declined to give the defendants’ sole non-standard request to charge.
Trial was conducted in this case on May 30 and 31, 2019. A charging conference was held on May 30, 2019 to discuss the proposed charge that this court had given to counsel on May 29, 2019. At that conference, defendants’ counsel, Attorney Mautner of the Mills Law Firm, LLC, advised the court that defendants had filed a proposed charge the morning of May 30, 2019.
The parties had previously been ordered to submit proposed charges by May 24, 2019. Plaintiff’s counsel, Attorney Tzepos, advised the court he was unaware that a proposed charge had been filed and he did not have the new charge in his possession. This court printed the charge, gave a copy to plaintiff’s counsel and reviewed it in chambers with both counsel.
The proposed non-standard charge being requested by defendants was titled: "All Accidents do Not Necessarily involve Negligence" and read: "As I have instructed you, the plaintiff has the burden of establishing that the defendant operator was negligent in order to recover any damages in this case. In weighing the allegation of negligence asserted by the plaintiff, I must caution you that simply proving that an accident occurred is insufficient as not all accidents involve negligent conduct. ‘Common experience ... shows that ... accidents are not all due to ... negligence. To support a verdict in a negligence case, there must be sufficient evidence of the defendant’s negligence to remove that issue from the field of surmise or conjecture. The mere fact that an accident occurs does not require a finding of negligence as to the event or events in issue.’ O’Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976)."
In chambers, Attorney Mautner agreed that the defendants’ proposed charge was not a standard automobile negligence charge, but argued that the court should still give the charge as the entire quoted language in the proposed charge was from a Supreme Court case O’Brien v. Cordova .
This court reviewed the O’Brien v. Cordova case cited in the proposed charge and searched for the language quoted by defendants’ counsel in such charge. Attorney Mautner admitted to the court that he could only find segments of the quoted passage in the case and not in the manner cited by the defendants.
It should also be noted that the facts present in the O’Brien v. Cordova case, a rear-end collision case, where the Supreme Court held that accidents are not all the result of negligence, and this case, where the plaintiff’s car was hit by the defendant Manguilli’s car at a speed of approximately sixty-five miles per hour while changing lanes are vastly different.
Notwithstanding the foregoing, on May 31, 2019, Attorney Mautner requested that this court give the defendants’ entire proposed non-standard charge on negligence to the jury. On May 31, 2019, this court denied defendants’ proposed non-standard charge on the grounds that it was not a standard automobile charge, and the charge as proposed incorrectly cited Supreme Court case law. (5/31/19 Trial Tr. 7.) After the denial of the defendants’ proposed non-standard charge, Attorney Mautner nonetheless argued to the jury in his closing argument: "I told you that just because an accident occurred, that doesn’t necessarily mean that the accident was the result of someone’s negligence, not all accidents occur because of negligence, ladies and gentlemen." (5/31/19 Trial Tr. 12.)
The standard of review for claims of instructional error is well established. "[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict ... The test to determine if a jury charge is proper is 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 ... [I]nstructions to the jury need not be in the precise language of a request ... Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." (Citations omitted; internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 383-84, 819 A.2d 795 (2003).
The defendants’ Motion to Set Aside Verdict on the above ground fails for the following reasons. First, the defendants do not argue that the standard negligence jury instruction that was actually given to the jury was not correct in the law. Instead, the defendants contend that their additional non-standard jury charge should have been given as well. This court finds that the standard negligence charge given to the jury was appropriate, correct in the law and sufficient to guide the jury on the issue of negligence.
Second, the court was not required to give the defendants’ non-standard jury charge in the precise language proposed. Defendants’ claim that this court erred in not charging the jury:" ‘Common experience ... shows that ... accidents are not all due to ... negligence. To support a verdict in a negligence case, there must be sufficient evidence of the defendant’s negligence to remove that issue from the field of surmise or conjecture. The mere fact that an accident occurs does not require a finding of negligence as to the event or events in issue.’ O’Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976)." Attorney Mautner admitted on the record on May 31, 2019, that the O’Brien case did not contain the following quoted language in defendants’ proposed charge "[T]he mere fact that accident occurs does not require a finding of negligence as to the event or events in issue." (5/31/19 Trial Tr. 4.) He also conceded on the record on May 31, 2019, that he had no idea where the last line of the quoted language in the proposed charge came from, and "if that sentence were to be removed from the instruction, I- would understand that." (5/31/19 Trial Tr. 4-5.) Instructions to the jury need not be in the precise language of a requested charge and this court was not required to use the specific language of defendants’ proposed non-standard charge. Moreover, it certainly was not required to use portions of the charge which counsel agreed should be removed.
Additionally, this court notes that defendants do not even acknowledge in their Motion to Set Aside Verdict, that the standard negligence charge that was given to the jury does, in fact, incorporate a portion of defendants’ requested charge on the issue of surmise and conjecture. Jury Instruction Charge 12, titled "Negligence and Proximate Cause," which was given to the jury includes an instruction to the jury similar to the middle section of defendants’ proposed charge as follows: "[t]he causal connection which the plaintiff must establish between the accident and the claimed injuries may not rest upon mere surmise or conjecture. You must find that the plaintiff’s injuries and expenses arise from this accident and not some other cause." (5/31/19 Jury Instructions, Charge 12.)
Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury. This court finds that the charge on negligence given to the jury in this case was correct in the law, adapted to the issues and sufficient for the guidance of the jury.
Accordingly, the defendants’ Motion to Set Aside Verdict on this ground is denied.
C. Plaintiff’s Statement in the Police Report
The defendants next contend in their Motion to Set Aside Verdict that the court erred in allowing plaintiff’s statements in the police report exhibit offered by defendants (Trial Exhibit B) to come into evidence. The defendants argue that the court erred by allowing in plaintiff’s statements to the State Trooper responding to the accident as "plaintiff’s statements are hearsay statements that do not fall within any exception." (Mot. Set Aside p. 3.) Defendants further argue that "a self-serving statement made by the plaintiff to the police officer is not an admission or a statement against interest by a party opponent." (Id.)
The defendants’ argument fails for the following reason. An exception to the hearsay rule, "Spontaneous Utterance," makes the plaintiff’s statements to the State Trooper admissible. Section 8-3(2) of the Connecticut Code of Evidence, titled "Spontaneous Utterances" states that a spontaneous utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Such statements are excluded from the hearsay rule, even though the declarant is available as a witness. In this case, the plaintiff made her statements to the State Trooper in the police report about how the accident occurred, after her car was hit at approximately sixty-five miles per hour by defendant Manguilli, had flipped over two times and ended up upright facing the wrong side of the I-91. These statements, which were made by the plaintiff before she was transported by ambulance to the hospital, were clearly made under the stress of excitement caused by the accident and the hearsay exception applies. Accordingly, this court finds that the plaintiff’s statements in the police report were properly admitted. Finally, even if the court erred in allowing the plaintiff’s statements about the accident into evidence, such error is harmless. The plaintiff testified, without using the police report, as to her version of how the accident happened. Thus, the evidence of plaintiff’s claim as to how the accident happened still would have been before the jury for its consideration, even if plaintiff’s statement was redacted from the police report.
Based on the foregoing, the defendants’ Motion to Set Aside Verdict on this ground is denied.
III.
CONCLUSION
This court finds that the jury’s verdict in favor of the plaintiff in the amount of $100,411.13 was reasonable, supported by the evidence offered at trial and the grounds set forth by defendants in this Motion to Set Aside the verdict are not persuasive. Accordingly, the defendants’ Motion to Set Aside the verdict of $100,411.13 rendered by the jury on May 31, 2019 in favor of the plaintiff is denied and judgment shall enter in plaintiff’s favor on the $100,411.13 verdict.