White v. Town of Westport

804 A.2d 1011, 72 Conn. App. 169, 2002 Conn. App. LEXIS 469
CourtConnecticut Appellate Court
DecidedSeptember 10, 2002
DocketAC 21402
StatusPublished
Cited by4 cases

This text of 804 A.2d 1011 (White v. Town of Westport) 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
White v. Town of Westport, 804 A.2d 1011, 72 Conn. App. 169, 2002 Conn. App. LEXIS 469 (Colo. Ct. App. 2002).

Opinion

Opinion

HENNESSY, J.

The plaintiff, Jeffrey White, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant town of Westport.1 The plaintiff brought a one count action pursuant to General Statutes § 13a-149,2 the highway defect statute. [171]*171On appeal, the plaintiff claims (1) that the court improperly excluded certain evidence, (2) that the court improperly denied his motion to set aside the verdict and (3) that the jury improperly found that the defendant did not have a reasonable time to repair the highway defect. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 5, 1994, the plaintiff operated his motorcycle eastbound on Beachside Avenue, a public road in Westport. As the plaintiff began to cross a bridge, he lost control of his motorcycle as a result of sand on the roadway. The plaintiff sustained injuries when his motorcycle went off the road and slid into a stone wall.

The plaintiff thereafter brought an action against the defendant for allegedly failing to maintain the roadway in a safe condition. During the trial, the court declined to admit certain evidence. Specifically, the court excluded, as irrelevant, the testimony of a woman who lived near the site of the accident and who would have testified about the general condition of the road near the accident site and about a letter she had written to the defendant in 1990 describing the presence of sand on Beachside Avenue, and the testimony of a town employee describing the presence of sand on sidewalks near the accident site.

The jury returned a verdict for the defendant. The jury, in answering interrogatories, found that the presence of sand on Beachside Avenue constituted a defect and that the defendant had notice of that specific defect. It also determined that the defendant did not have a reasonable opportunity after notice of the specific defect to remove it.3 The court denied the plaintiffs [172]*172motion to set aside the verdict and rendered judgment for the defendant. The plaintiff now appeals. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly excluded certain evidence. Specifically, the plaintiff argues that the court improperly excluded as irrelevant (1) the testimony of Carol C. Johnson, which was offered to describe the sand on the road near the accident site, (2) the 1990 letter written by Johnson describing that sand generally existed on Beachside Avenue four years prior to the plaintiffs accident and (3) the testimony of the defendant’s director of public works, Stephen Edwards, which would have described the presence of sand on the sidewalks. We disagree.

Initially, we set forth the applicable standard of review. “It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Emphasis in original; internal quotation marks omitted.) Van Nest v. Kegg, 70 Conn. App. 191, 201, 800 A.2d 509 (2002).

As an preliminary step to determining the admissibility of evidence, the trial court must find that the offered evidence is relevant. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.” (Internal [173]*173quotation marks omitted.) Boretti v. Panacea Co., 67 Conn. App. 223, 227, 786 A.2d 1164 (2001), cert. denied, 259 Conn. 918, 791 A.2d 565 (2002). “Conversely, ‘evidence that is not relevant is inadmissible.’ Conn. Code Evid. § 4-2.” State v. Sanchez, 69 Conn. App. 576, 584, 795 A.2d 597 (2002); C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.2.3, p. 204.

The pleadings of the parties frame the issues that are relevant during the trial. To bring a successful claim under § 13a-149, the plaintiff must prove “(1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 642, 717 A.2d 1216 (1998); Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our Supreme Court has stated that “[t]he notice, actual or implied, of a highway defect causing injuries which a municipality must receive as a condition precedent [to] liability for those injuries, is notice of the defect itself which occasioned the injury, and not merely of conditions naturally productive of that defect and subsequently in fact producing it. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.” (Emphasis in original; internal quotation marks omitted.) Prato v. New Haven, supra, 246 Conn. 642.

[174]*174A

The defendant claims that the court improperly excluded the testimony of Johnson. We disagree. Johnson, a resident of Westport who lived near the accident site, testified during the plaintiffs offer of proof regarding the presence of sand on the roads in Westport during the spring and summer months. She stated that the defendant did not adequately remove the sand after the winter months. She was not, however, able to testify as to the location of the accident or whether sand was present at the site of the accident. She could state only that she had observed sand in the general area of the accident. Consequently, the court ruled that her testimony was not relevant and therefore not admissible.

The plaintiff relies on Ormsby v. Frankel, 255 Conn. 670, 768 A.2d 441 (2001), to support his argument that Johnson’s testimony was relevant as evidence of constructive notice.4 In Ormsby, the plaintiff drove over an ice patch and lost control of her motor vehicle. Id., 674-75. The court permitted the plaintiff to provide evidence of the existence of previous and recurring icing conditions

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Cite This Page — Counsel Stack

Bluebook (online)
804 A.2d 1011, 72 Conn. App. 169, 2002 Conn. App. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-town-of-westport-connappct-2002.