Swenson v. Sawoska

575 A.2d 206, 215 Conn. 148, 1990 Conn. LEXIS 170
CourtSupreme Court of Connecticut
DecidedMay 22, 1990
Docket13787
StatusPublished
Cited by73 cases

This text of 575 A.2d 206 (Swenson v. Sawoska) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swenson v. Sawoska, 575 A.2d 206, 215 Conn. 148, 1990 Conn. LEXIS 170 (Colo. 1990).

Opinion

Callahan, J.

This appeal concerns the appropriate standard of harmless error to be applied in a civil case. The plaintiff, Marion Swenson, brought this negligence action against the defendant, Thomas Sawoska, to recover for personal injuries sustained in a two car collision. After a trial, the jury returned a verdict in favor of the defendant and judgment was rendered thereon. The plaintiff appealed to the Appellate Court. In Swenson v. Sawoska, 18 Conn. App. 597, 559 A.2d 1153 (1989), the Appellate Court affirmed the trial court’s judgment. We granted the plaintiff’s petition for certification to appeal from the Appellate Court; Swenson v. Sawoska, 212 Conn. 810, 564 A.2d 1073 (1989); limited to the following three issues: “(1) Did the Appellate Court err in concluding that the admission of the [150]*150officer’s narrative of how the accident occurred contained in the police report was harmless error? (2) Was the standard of harmless error used by the Appellate Court, ‘sufficient other evidence to support the verdict,’ erroneous? (3) Does the other evidence properly admitted, including the diagram, render harmless any error in the admission of the officer’s narrative?” We conclude that the standard of harmless error used by the Appellate Court was erroneous. We find, nevertheless, that the admission of the officer’s narrative contained in the police report was harmless error.

In reaching its verdict, the jury could reasonably have found the following facts. At approximately 11 p.m. on December 10, .1982, the plaintiff was attempting to travel northbound up a steep incline on Kinsey Road in New Hartford. Snow had accumulated on the road, making it slippery and creating hazardous driving conditions. As she attempted to ascend the hill, the plaintiff’s car skidded and she backed down the hill to try once again to make the ascent. On her second attempt, her car skidded sideways and she was stranded in the road crosswise, with part of her vehicle in the lane of oncoming traffic.1 At that point, the defendant drove his Chevrolet Blazer over the hill southbound and struck the plaintiff’s vehicle on the driver’s side. The two cars came to rest more than fifty feet from the bottom of the hill.2

[151]*151The plaintiffs claim on appeal relates to an evidentiary ruling made by the trial court. At trial, the court admitted into evidence a police report that included both a diagram of the accident and a narrative description.* *3 The plaintiff argues that the narrative portion of the police report was inadmissible hearsay because the officer could not identify which party had made certain statements in the report.4 If the plaintiff had made the statements to the police officer, they would qualify as admissions and would be admissible. O’Brien v. John Hancock Mutual Life Ins. Co., 143 Conn. 25, 30, 119 A.2d 329 (1955); Cashman v. Terminal Taxi Co., 131 Conn. 31, 33, 37 A.2d 613 (1944). If the defendant had made the statements, however, they would be inadmissible hearsay because they would constitute self-serving [152]*152declarations from a person without a business duty to report the information to the police. State v. Milner, 206 Conn. 512, 521, 539 A.2d 80 (1988); Hutchinson v. Plante, 175 Conn. 1, 5, 392 A.2d 488 (1978).

At trial the police officer testified that he had to have obtained the information pertaining to the plaintiffs initial unsuccessful attempt to ascend the hill from the plaintiff. That statement therefore constituted an admission by the plaintiff and was admissible as an exception to the hearsay rule. O’Brien v. John Hancock Mutual Life Ins. Co., supra. Because the officer testified that he could not remember the precise source of the remaining statements in the narrative, however, the plaintiff claimed that these statements were inadmissible hearsay. Specifically, the plaintiff objected to the “admission of that portion of the officer’s narrative that recites that ‘[the plaintiff’s] second attempt caused [her] vehicle to slide crosswise in the road and stop when [the defendant’s] vehicle suddenly came over the hill.’ ” Swenson v. Sawoska, supra, 18 Conn. App. 599. The Appellate Court concluded that it could not determine whether that portion of the report was hearsay. Nevertheless, the Appellate Court held that, even if the narrative portion of the police accident report was inadmissible hearsay, “[t]here was sufficient other evidence to support the jury’s verdict, including the location of the damage on the plaintiff’s car. Any error, therefore, would be harmless.” Id. Since we limit ourselves to the certified questions on appeal, we shall assume that the admission of the narrative portion of the police report was erroneous.

The plaintiff argues that the Appellate Court, by concluding that any error was harmless simply by determining that “[t]here was sufficient other evidence to support the jury’s verdict”; id.; used an incorrect harmless error standard. We agree.

[153]*153We have often stated that before 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. Hensley v. Commissioner of Transportation, 211 Conn. 173, 184, 558 A.2d 971 (1989); Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982); DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). When determining that issue in a civil case, the standard to be used is whether the erroneous ruling “would likely affect the result.” Manning v. Michael, supra; DeCarufel v. Colonial Trust Co., supra. “Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality.” Berndston v. Annino, 177 Conn. 41, 45, 411 A.2d 36 (1979). We conclude that the “sufficient other evidence” standard applied by the Appellate Court is too restrictive in that it does not encompass situations where the erroneously admitted evidence, while not necessary itself to sustain the jury’s verdict, may nonetheless have affected the jury’s perception of the remaining evidence. Such a standard is inappropriate because it would require that we treat as harmless error any evidentiary ruling, regardless of its effect upon the verdict, so long as the evidence not implicated by the ruling was sufficient as a matter of law to sustain the verdict.

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Bluebook (online)
575 A.2d 206, 215 Conn. 148, 1990 Conn. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swenson-v-sawoska-conn-1990.