McKee v. Erikson

654 A.2d 1263, 37 Conn. App. 146, 1995 Conn. App. LEXIS 99
CourtConnecticut Appellate Court
DecidedMarch 7, 1995
Docket12730
StatusPublished
Cited by9 cases

This text of 654 A.2d 1263 (McKee v. Erikson) 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
McKee v. Erikson, 654 A.2d 1263, 37 Conn. App. 146, 1995 Conn. App. LEXIS 99 (Colo. Ct. App. 1995).

Opinion

Spear, J.

The defendant appeals from the judgment of the trial court that set aside the jury’s verdict for the defendant and ordered a new trial. The defendant claims that the trial court improperly set aside the verdict because (1) he did not disobey the court’s order in his closing argument with respect to the unreasonable speed of the plaintiff’s vehicle and such argument had a sufficient basis in the evidence, and (2) the defendant’s comments during closing argument were, under the circumstances, not so prejudicial as to deprive the plaintiff of a fair trial. We affirm the judgment of the trial court.

The following facts and claims of the parties are necessary for the resolution of this appeal. On April 10, 1988, vehicles operated by the plaintiff and the defendant collided at the intersection of Route 164 and a one-way two lane service road in Griswold. The defendant was traveling south on the service road and had a stop sign at the intersection. The plaintiff was traveling west on Route 164 and had no traffic control sign or signal. After stopping at the stop sign, the defendant entered the intersection to cross Route 164, and the collision occurred. A witness who was traveling behind the defendant’s vehicle testified that the plaintiff’s vehicle was moving “rather fast” and was traveling faster than the speed limit of thirty-five miles per hour. The plaintiff alleged that the collision was due to the negligence of the defendant by, inter alia, failing to stop at the stop sign and failing to yield the right-of-way. The defendant alleged that the plaintiff was traveling at an unreasonable and excessive rate [148]*148of speed under all of the circumstances and that the plaintiff in fact caused the accident and injuries through her own negligence. The plaintiffs vehicle left forty-four feet of skid marks on the roadway, but there was no expert testimony that extrapolated the speed of the plaintiffs vehicle from the length of the skid marks. The plaintiff presented medical evidence in support of her claim that she was injured as a result of the collision.

During closing argument, the defendant’s attorney argued to the jury that the plaintiff was “suit happy” and was “looking for a hand out.” He asked the jury, as people who had to “earn” their “wages,” to “send a message” to “stop this type of conduct.” He urged the jury not to reward the plaintiff “so that we won’t have this type of activity.”

The jury returned a verdict for the defendant. The plaintiff filed a motion to set aside the verdict, which was granted by the trial court and this appeal ensued.

Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). “Where, as in this case, the trial court disagrees with the verdict of the jury and there is an appeal . . . we review the action of the judge in setting the verdict aside rather than that of the jury in rendering it. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) Lee v. Lee, 171 Conn. 1, 2-3, 368 A.2d 11 (1976); see also Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).

The court’s action in setting aside a verdict is entitled to great weight because the trial judge can sense the [149]*149atmosphere of a trial and “can apprehend far better than this court, limited to a printed record, what factors, if any, could have improperly influenced the jury.” Fronczek v. Della Bitta-Bassola, Inc., 165 Conn. 102, 104, 328 A.2d 680 (1973). “Every reasonable presumption should be indulged in favor of the correctness of the trial court’s decision to set aside the verdict because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced.” Caciopoli v. Acampora, 30 Conn. App. 327, 330, 620 A.2d 191 (1993); Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960).

I

The defendant first claims that he did not disobey the court’s order with respect to testimony concerning the speed of the plaintiff’s vehicle and, in any event, his argument as to the vehicle’s speed had a sufficient basis in the evidence.

The trial court, in its memorandum of decision, found that the defense attorney persisted in “improper questioning and remarks concerning [the speed of the plaintiff’s vehicle] after the court had directly ordered him to terminate this type of examination.” The court found that the only evidence with respect to speed was the eyewitness’ testimony that the plaintiff’s vehicle “was moving rather fast” and that the witness “felt” that the plaintiff was going faster than thirty-five miles an hour, and the plaintiff’s testimony that her speed was no more than thirty-five miles per hour, the posted speed limit. The trial court stated: “Since there was no expert testimony regarding speed, it was improper argument for counsel to tell the jury that they could determine speed on their own from skid marks and damage to vehicles. The comments of counsel regarding speed were flagrantly prejudicial to the plaintiff.” The court stated in its memorandum of decision, with [150]*150respect to the issue of the vehicle’s speed: “Furthermore, after a recess that followed defense counsel’s final argument, in the presence of the jury, he asked the court to instruct the jury that they should consider skid marks and the condition of the vehicles after the collision as evidence of speed.”

We turn first to the court’s statement that the defendant’s request for a jury instruction was made in the presence of the jury. The defendant asserts that the transcript of the proceedings has been corrected to show that in fact that request for a jury instruction allowing the jury to consider skid marks and the condition of the vehicles as evidence of speed was made outside the presence of the jury. We accept the corrected transcript because the trial court granted the motion to correct the transcript to reflect the absence of the jury. We are, nevertheless, unpersuaded that that factual misstatement by the trial court, standing alone, invalidates the court’s action in setting aside the verdict, especially in light of the trial court’s statement that “any one” of the claimed instances of misconduct would “require the court to set aside the verdict.”

The defendant mounts a two-pronged attack on the court’s findings with respect to the issue of the vehicle’s speed. First, he asserts that defense counsel did not persist in improper questioning or remarks in derogation of the court’s rulings. Second, he asserts that the court’s rulings regarding speed and expert testimony were legally incorrect. The excerpts from closing argument that the defendant printed in his brief rebuts his first claim.

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Cite This Page — Counsel Stack

Bluebook (online)
654 A.2d 1263, 37 Conn. App. 146, 1995 Conn. App. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-erikson-connappct-1995.