Demarkey v. Fratturo

836 A.2d 1257, 80 Conn. App. 650, 2003 Conn. App. LEXIS 553
CourtConnecticut Appellate Court
DecidedDecember 30, 2003
DocketAC 23336
StatusPublished
Cited by13 cases

This text of 836 A.2d 1257 (Demarkey v. Fratturo) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demarkey v. Fratturo, 836 A.2d 1257, 80 Conn. App. 650, 2003 Conn. App. LEXIS 553 (Colo. Ct. App. 2003).

Opinion

Opinion

BISHOP, J.

Christopher DeMarkey1 appeals from the judgment of the trial court rendered after the jury’s verdict in favor of the defendant Gertrude Rivas.2 The plaintiff makes the following claims on appeal: (1) the trial court improperly allowed the admission of hearsay evidence; and (2) the court improperly charged the jury [652]*652on apportionment of liability. We disagree and affirm the judgment of the trial court.

The plaintiff brought this action to recover for personal injuries sustained in a collision allegedly resulting from the defendant’s negligent operation of a motor vehicle. The defendant denied having been negligent and raised the plaintiffs contributory negligence as a special defense. After trial, judgment was rendered in favor of the defendant in accordance with the jury verdict.

In reaching its verdict, the jury reasonably could have found the following facts. On October 10, 1997, at approximately 11:30 p.m., the defendant was driving northbound on Hope Street in Stamford. At the same time, the plaintiff, then fifteen years old, also was running in the direction of Hope Street as he was being chased by three young men, one of whom originally was a defendant in this action.3 In an effort to flee those individuals, the plaintiff ran into the street where he was struck by the defendant’s vehicle. As a result, he sustained permanent injuries.

Officers Michael Mann and Joanne Anzenberger of the Stamford police department arrived at the scene shortly after the accident. They immediately began their investigation of the collision and the events leading to it. Mann primarily focused on the collision while Anzenberger concentrated on the chase. Pursuant to the investigation, Mann and Anzenberger prepared reports that consisted of, inter alia, statements from witnesses regarding the incident as well as diagrams depicting the events leading to the collision.

[653]*653A significant issue at trial was whether the plaintiff had run directly into the path of the defendant’s vehicle from the school driveway or whether he had run along the sidewalk prior to crossing into the travel portion of the street and into the vehicle’s path. Both Mann and Anzenberger testified on that issue, as did the defendant, the plaintiff, and the various witnesses to the collision and the events leading to it. At the conclusion of the trial, the court gave the jury written interrogatories that had been agreed to by all the parties. The jury ultimately returned a verdict in favor of the defendant and submitted those completed interrogatories to the court.4 This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that it was improper for the court to admit hearsay testimony regarding the path along which he was running prior to being struck by the defendant’s vehicle. We agree, but conclude that the admission of the evidence was harmless.

The following additional facts are relevant to our discussion of the plaintiffs claim. On cross-examination, the defendant’s counsel requested that Mann read from his police report a statement obtained during an interview with three witnesses, two of whom had been defendants in the action.5 The requested statement was [654]*654that “Chris DeMarkey had run along the side of the school, continuing to run straight out onto Hope Street, and was struck at the entrance to the lot, southern entrance.” Before Mann read that excerpt, however, the plaintiffs counsel objected to the statement on the ground that it was inadmissible hearsay. The defendant’s counsel argued that the statement was not hearsay, as it was the product of Mann’s contemporaneous interview of three people, two of whom had been parties to the litigation.6 The court overruled the objection and admitted the statement into evidence.7 With those additional facts, we now turn to the plaintiffs claim.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and [those] rulings will not be disturbed on appellate review absent [an] abuse of that discretion.” (Internal quotation marks omitted.) Hartford Housing Authority v. DeLeon, 79 Conn. App. 300, 306, 830 A.2d 298 (2003).

An out-of-court statement used to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception applies. State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). [655]*655Police reports are normally admissible under the business records exception to the hearsay rule.8 Paquette v. Hadley, 45 Conn. App. 577, 581, 697 A.2d 691 (1997). Statements of witnesses repeated in those reports, however, are not generally admissible.9 Id. Nevertheless, such statements may still avoid prohibition by falling within the admissions exception to the hearsay rule. Id. Pursuant to that exception, the words of a party opponent are generally admissible against him or her. State v. Markeveys, 56 Conn. App. 716, 719, 745 A.2d 212, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000).

In the present case, the record does not support the defendant’s contention that the hearsay statement was admissible as an admission. The declaration does not fall within that exception because the declarant was unidentifiable. To fall within that exception, one must be able to identify the declarant clearly as a party to the litigation. See Kelly v. Sheehan, 158 Conn. 281, 284-86, 259 A.2d 605 (1969) (holding that hearsay declaration found within hospital record inadmissible as admission because record did not clearly reflect that party had made statement). Here, the record reflects Mann’s inability to identify the source of the declara[656]*656tion. Thus, it is unclear whether the statement was made by one or both of the defendants who were interviewed by Mann or by the third party who was not a defendant.

We therefore conclude that the testimony at issue was hearsay and, thus, was admitted improperly. Once introduced, it should have been stricken from the record and the jury told specifically to ignore it. Yet, troubling though the admission of the testimony is, we think that, viewed in the context of the entire record, the incorrect ruling was benign.

“[Bjefore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.” Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). The harmless error standard in a civil case is whether the improper ruling “ ‘would likely affect the result’ ” of the case. Id.

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Bluebook (online)
836 A.2d 1257, 80 Conn. App. 650, 2003 Conn. App. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarkey-v-fratturo-connappct-2003.