Roberto v. Honeywell, Inc.

681 A.2d 1011, 43 Conn. App. 161, 1996 Conn. App. LEXIS 465
CourtConnecticut Appellate Court
DecidedSeptember 17, 1996
Docket14870
StatusPublished
Cited by10 cases

This text of 681 A.2d 1011 (Roberto v. Honeywell, Inc.) 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
Roberto v. Honeywell, Inc., 681 A.2d 1011, 43 Conn. App. 161, 1996 Conn. App. LEXIS 465 (Colo. Ct. App. 1996).

Opinion

HENNESSY, J.

This negligence action arises from an automobile collision in October, 1988. The matter was first tried to a jury in 1992 and resulted in a verdict for the defendants. The plaintiff appealed from the judgment, and we reversed the trial court and remanded the case for a new trial. Roberto v. Honeywell, Inc., 33 Conn. App. 619, 637 A.2d 405, cert. denied, 229 Conn. 909, 642 A.2d 1205 (1994). After a new trial, the jury returned a verdict for the defendants, and the trial court denied the plaintiffs motions to set aside and for judgment notwithstanding the verdict. This appeal ensued. On appeal, the plaintiff claims that the trial court improperly (1) limited the plaintiffs cross-examination of the defendant Shannon Garrett regarding motive, (2) admitted testimony on Garrett’s prior consistent statements, (3) permitted the defendants’ expert to testify, (4) admitted testimony on the plaintiffs alleged admission by silence and (5) limited the plaintiffs expert testimony in rebuttal.

The jury could reasonably have found that on October 7, 1988, the plaintiff, Stacia Roberto, was driving an automobile with Garrett as her passenger when the vehicle slid off the road and struck a fence and a tree.

On August 15,1990, the plaintiff brought a negligence action to recover damages for the injuries she sustained in the collision. Her complaint alleged that Garrett was the driver of the car and that Garrett’s negligent operation of the vehicle caused the plaintiffs injuries. In an amended answer, Garrett denied that she was operating the car at the time of the collision. During the new trial on remand, the parties presented testimony and expert evidence regarding who was driving the automobile. The jury returned a verdict for the defendants, and the [163]*163trial court denied the plaintiffs motion to set aside the verdict.1

In this appeal, the plaintiff claims that the trial court improperly made rulings in abuse of its discretion. We are unable to review the plaintiffs first two claims, however, because she has failed to comply with Practice Book § 4065 (d) (3).2 On these claims, her brief does not set forth the specific evidence that was excluded or admitted, the objections, the grounds for the objections, the claimed grounds of admissibility, or the evidentiary rulings by the court that allow for a review of these claims. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987). The mere assertion in a brief that evidence was improperly excluded, coupled with transcript page references, will not be sufficient. State v. Bagley, 35 Conn. App. 138, 145, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994); State v. Russell, 29 Conn. App. 59, 63, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992). For evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. State v. Russell, supra, 63; State v. Siller, 12 Conn. App. 395, 402, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

The plaintiff next contends that the trial court abused its discretion by allowing the defendants’ expert wit[164]*164ness, Edward McDonough, to render opinions new and different from those that the defendants had disclosed pursuant to Practice Book § 220 (D)3 and those to which McDonough had testified in the previous trial. The plaintiff claims that the court improperly allowed McDonough to offer his opinions concerning whether the plaintiffs ankle injury would have prevented her from moving from the driver’s side of the car to the passenger side after the accident and whether the plaintiff received her head injury as a result of hitting the steering wheel. The gravamen of the plaintiffs complaint is that she did not have sufficient notice of these opinions to be able to address them at trial.

The defendants’ initial disclosure of expert witnesses disclosed McDonough as an expert witness. Before the second trial, on January 5, 1995, the defendants filed a supplemental disclosure of expert witnesses that addressed the proposed testimony of McDonough in the second trial. See Practice Book § 232. The disclosure states that McDonough’s prior deposition testimony, an accident reconstruction report, which had been disclosed to the plaintiff, and exemplars of a female and a vehicle, would serve as the premises for McDonough’s opinion testimony at trial. McDonough’s opinion remained that the plaintiff had been driving [165]*165the vehicle. The trial court found that the disclosure addressed the testimony that McDonough would give at trial and that the plaintiff had ample opportunity to further depose McDonough concerning these matters.4 “[A] trial court enjoys broad discretion in deciding whether to exclude evidence based on failure to comply with a discovery request.” Berry v. Loiseau, 223 Conn. 786, 802, 614 A.2d 414 (1992). In view of these findings, we cannot conclude that the trial court abused its discretion.

We next address the plaintiffs claim that the trial court improperly admitted testimony of the plaintiffs alleged admission by silence. A witness testified that the plaintiff never denied that she was driving in response to statements made in her presence. The plaintiff argues that the defendants failed to lay a proper foundation for the introduction of the witness’ testimony and that the trial court, therefore, abused its discretion in admitting the hearsay statement.

In Connecticut, to admit as an admission evidence of the failure of a person to contradict or to reply to the statement of another person made in her presence and hearing, it is essential to establish that the person comprehended the statements made, that the person had the opportunity to speak, that the circumstances naturally called for a reply from that person and that the person remained silent. Obermeier v. Nielsen, 158 Conn. 8, 12, 255 A.2d 819 (1969); see also State v. Dan[166]*166iels, 18 Conn. App. 134, 138, 556 A.2d 1040 (1989). Our Supreme Court has held in numerous cases that, where the facts contained in testimony admitted into evidence by an improper ruling are established by other evidence, the ruling will not be set aside unless the trial court abused its discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); DeCarufel v. Colonial Trust Co., 143 Conn.

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Bluebook (online)
681 A.2d 1011, 43 Conn. App. 161, 1996 Conn. App. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberto-v-honeywell-inc-connappct-1996.