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    Frank Zimny, Administrator (Estate of Hannelore Zimny) v. Cooper-Jarrett, Inc., et al.
    (3784)
    Hull, Borden and Stoughton, Js.

      Argued April 2
    decision released August 5, 1986

      Joseph Adinolfi, Jr., with whom were Joseph C. Morelli and John D. Miletti, for the appellant (defendant Thomas W. Hogan, Jr.).

      John W. Lemega, with whom was George D. Royster, Jr., for the appellee (plaintiff).
   Hull, J.

This negligence case arose out of a very complicated multivehicle accident which occurred on January 13,1976, on an icy area of Interstate 84 (1-84), eastbound, in New Britain. The plaintiff’s decedent, Hannelore Zimny, got out of the driver’s seat of her damaged car and walked around to the passenger side to help her mother get out of the car. While helping her mother, she was struck by a vehicle and received injuries which resulted in her death forty-five days later. The plaintiff administrator sued nine defendants, eight of whom, including the named defendant, settled the claims prior to or during the trial for a total of $225,000. The case proceeded against only one of the defendants, Thomas W. Hogan, Jr. (hereinafter the defendant). The jury rendered a verdict for the plaintiff in the amount of $1,074,171.90, reduced to $859,337.52 to reflect the decedent’s comparative negligence of 20 percent. The defendant filed motions to set aside the verdict and for a new trial in accordance with Practice Book §§ 320 and 321, and a motion for order of remittitur, pursuant to General Statutes § 52-216a. The trial court denied all of these motions and the defendant filed this appeal.

The defendant claims that the trial court erred in several respects: (1) in charging the jury on the rescue doctrine; (2) in admitting certain testimony of the plaintiffs accident reconstruction expert; (3) in failing to set aside the verdict and order a new trial or order a remittitur; (4) in failing to rule that General Statutes § 52-216a violates the equal protection provisions of the United States and Connecticut constitutions; and (5) in failing to set aside the verdict and render judgment for the defendant on the basis of insufficient evidence of negligence.

The parties stress conflicting testimony concerning key factors in the accident. A summary of the undisputed evidence and the areas in which the parties disagree follows. On January 13, 1976, between 2 p.m. and 2:15 p.m., Hannelore Zimny was driving her car in an easterly direction on 1-84. She was travelling in the extreme left lane. Her mother, Frieda Zimny, was a passenger in the right front seat. At approximately the same time, a car operated by Hiam J. Lundy was proceeding easterly on 1-84. At a point just east of the Plainville-New Britain line, Lundy’s car passed over an ice-coated bridge and went out of control, running into a snowbank on the right hand side of the highway. As Lundy backed his car out of the snowbank onto the highway, he was struck by an unidentified tractor trailer truck travelling in the right hand lane. This truck skidded out of control and came to rest blocking the right lane and a portion of the center lane of the highway. At the same time, the defendant was operating his car eastbound on 1-84, driving in the center lane.

The defendant stresses the following evidence: While driving on 1-84, he felt two hard impacts on the rear of his car. The first impact was so hard that the trunk lid on his car popped up, blocking his view of the car that struck him. Approximately ten seconds later, he felt the second of the two blows. After the second blow, his car came to a complete stop on the left hand side of the highway. The Zimny car, which the defendant later learned was the car that hit him, came to rest to the rear of his car near the left side of the highway.

The plaintiff stresses entirely different testimony as follows: As the plaintiff’s decedent’s car and the defendant’s car approached the site of the Lundy collision, the defendant, whose speed exceeded the plaintiff’s decedent’s, started to pass. The defendant saw that the road ahead was obstructed but nevertheless elected to drive through the obstruction. As he passed the vehicle of the plaintiff’s decedent, his car fishtailed and its left rear skidded and struck the plaintiff’s decedent’s passenger side door. That impact caused Zimny’s car to rotate in a counterclockwise direction until its front hit the highway curbing. The defendant’s car continued to fishtail until its rear collided with the highway retaining wall. As a result of the impact, Zimny’s car came to rest in the left lane of 1-84.

Certain other testimony is not in dispute. After the accident, Zimny went around the car to get her mother out because she was concerned about the possibility of leaking gasoline. At this point, two tractor trailers being operated in the right and center lanes of 1-84 came on the scene. The tractor trailer in the right lane was owned by Cooper-Jarrett, Inc., and driven by Henry Miller, Jr. As he approached the accident scene, Miller applied his brakes and jackknifed, hitting a van owned by Casson-Matava, Inc., and driven by Dominic A. Angelo. The Angelo vehicle then struck a Pontiac Firebird driven by Stephen H. Bouchner. The Cooper-Jarrett trailer then collided with another tractor trailer owned by Edart, Inc., and driven by John J. McCarthy. The Edart trailer collided with the Zimny vehicle at the moment Zimny was attempting to assist her mother. This collision pinned Zimny between her vehicle and the Edart trailer. The Edart trailer also pushed the Hogan vehicle against the side of a northerly bridge abutment. Fifteen to twenty seconds elapsed between the end of the Hogan-Zimny collision and the collision involving the tractor trailer truck and the Hogan and Zimny cars. The road surface in the area was icy and slippery. By 7:15 p.m., an eastward moving ice storm had reached the accident scene. As a result of glare ice, no tire or skid marks were left by any of the vehicles involved.

I

The Court’s Charge to the Jury on the Rescue Doctrine

This issue raises the thorny question, not previously considered by an appellate court in Connecticut, as to the application of the rescue doctrine in a comparative negligence situation.

The rescue doctrine was first promulgated by Cardozo, J., in Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437 (1921), in which the court stated: “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid .... The railroad company whose train approaches without signal is a wrongdoer toward the traveller surprised between the rails, but a wrongdoer also to the bystander who drags him from the path .... The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had . . . .” (Citations omitted.) Id., 180.

The Supreme Court established the doctrine in Connecticut in the landmark case of Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940). The plaintiff’s decedent, the mother of an eight year old daughter, was killed by the engine of the defendant’s train. Her death was a result of her running towards the track in an attempt to move away the daughter who was too close to the track. The court concluded that the jury could have found the defendant negligent. It then went on to consider the question of the mother’s contributory negligence.

“The question as to contributory negligence on the part of the decedent requires consideration of the so-called ‘rescue doctrine,’ for only under that doctrine could she be held free from such negligence. It is succinctly stated in the Restatement as follows: ‘It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or a third person from harm.’ 2 [Restatement] Torts § 472. In general support of this principle, the following cases, out of many, may be cited: Eckert v. Long Island R. Co., 43 N.Y. 502 [1871]; Wagner v. International Ry. Co., [supra, 180]; Dixon v. New York, N.H. & H. R. Co., 207 Mass. 126, 129, 92 N.E. 1030 [1910]; Perpich v. Leetonia Mining Co., 118 Minn. 508, 512, 137 N.W. 12 [1912]; Bond v. Baltimore & Ohio R. Co., 82 W. Va. 557, 560, 96 S.E. 932 [1918]; see also 3 Elliott, Railroads (3d Ed.) § 1814; note 19 A.L.R. 4. The statement quoted contains in itself a limitation, for it only applies where the effort to save is ‘reasonable’ and it suggests a question as to the elements involved in determining what effort is to be deemed reasonable. The answer to that, so far as it admits of an answer, is that the same standard generally used in testing whether or not an act is negligent is to be applied; that is, the conduct of an ordinarily prudent person in the same circumstances as the plaintiff. ‘The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do . . . in the presence of such existing peril.’ Pittsburg, C., C. & St. Louis Ry. Co. v. Lynch, 69 Ohio St. 123, 131, 68 N.E. 703 [1903]. Among these circumstances, as the Restatement points out, are undoubtedly the seriousness and imminence of danger, both to the person threatened and the rescuer, and the likelihood or unlikelihood that harm to the former can be averted. Beyond that, an outstanding factor is the instinctive reaction of human nature to the need of one in danger, and where he stands in a close relationship of blood or affection to the rescuer, as in a case like this, a young child to her mother, the reactions naturally incident in such a case. . . .

“The mere presence of danger and desire to save person or property from injury or destruction will not alone suffice. To venture life where there is no possibility of saving or where the danger is not great or the possibility of loss serious, may go beyond the limit of that which is legally permissible. . . . It . . . accords with the analogies of the law to apply the usual standard of conduct, that is, the conduct of an ordinarily prudent person under the same circumstances. The standard is the same upon which contributory negligence is always to be determined, but in a case like the one before us, it necessarily involves such circumstances as those which have been mentioned. Requiring as it does in a situation where a mother loses her life in an effort to save her child from serious injury or death, an understanding of the ultimate springs of human conduct, there is a peculiar value in submitting the issue to the judgment of the twelve men or women of the jury, schooled, as they have been, by their various experiences in life. It must be a rare and clear case where a court could override their conclusion.

“In the situation before us we have, in the protective instinct of motherhood, one of the strongest incentives to the risk of life; the jury might reasonably conclude that there was imminent danger of death or serious bodily injury to the child and an instinctive reaction to that danger on the part of the mother; and, had the child actually come upon the track in the face of the approaching train, the mother would have barely failed to reach her before it would have been too late. That her sacrifice did not avail to stop the child before she reached the track, cannot be determined from this record; but even if that sacrifice in the ultimate proved unnecessary, that could not affect the decedent’s rights, for they were to be determined upon the facts as she might reasonably have believed them to be. Thoresen v. St Paul & Tacoma Lumber Co., 73 Wash. 99, 103, 131 Pac. 645, 132 Pac. 860 [1913]; Corbin v. Philadelphia, 195 Pa. St. 461, 469, 45 Atl. 1070 [1900]. It is true that there must have been a moment when a calm observer would have seen that she could not reach the child in time to protect her and that unless she immediately stopped she would be struck by the train, but her conduct is to be judged, not in the light of cold reason, but in view of the aroused emotions which would animate a mother situated as was the decedent, and of the lack of opportunity for deliberation and the exercise of a cool judgment. . . . We cannot hold that, as matter of law, the decedent’s conduct was not that of a reasonably prudent person in like circumstances, using those words in the sense we have stated . . . .” (Citations omitted.) Cote v. Palmer, supra, 326-30; accord Cummings v. General Motors Corporation, 146 Conn. 443, 451-52, 151 A.2d 884 (1959). The Cote statement of the underlying principles of the rescue doctrine is well established law.

A recent case formulated the rule as follows: “ Where a defendant’s negligent act, of commission or omission, has created a condition or situation which involved urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose. . . .’ ” Turpel v. Sayles, 692 P.2d 1290, 1291 (Nev. 1985).

In the case before us, the court explained in its charge the doctrines of contributory negligence and comparative negligence and their application to the facts of the case. The defendant properly excepted to the charge on the grounds that “[t]he rescue doctrine, in our judgment, is not applicable in this case since the rescuer may be guilty of contributory negligence when he himself has brought about or helped to bring about the danger, and it is our position that Hannelore Zimny either brought about or helped to bring about the danger from which she attempted to extricate her mother.”

The defendant agrees that, as far as it went, the court’s charge on the rescue doctrine was correct. He argues, however, that the court erred in not charging the jury that the rescue doctrine cannot be invoked by a rescuer who has contributed to placing the victim in a position of peril. It is beyond question that this limitation on the doctrine is universally accepted in cases where a plaintiff’s contributory negligence acts as a complete bar to recovery. Sulphur Springs Valley Electric Cooperative, Inc. v. Verdugo, 14 Ariz. App. 141, 144, 481 P.2d 511 (1971); Klang v. Shell Oil Co., 17 Cal. App. 3d 933, 938-40, 95 Cal. Rptr. 265 (1971); Air-line Railway Co. v. Leach, 91 Ga. 419, 422, 17 S.E. 619 (1893); Tarnowski v. Fite, 335 Mich. 267, 269-70, 55 N.W.2d 824 (1952); Padilla v. Hooks International, Inc., 99 N.M. 121, 123-24, 654 P.2d 574 (N.M. App. 1982); 2 Restatement (Second), Torts § 472, comment a; annot., 158 A.L.R. 189; 57 Am. Jur. 2d, Negligence § 423.

The defendant notes that no case has been found to the contrary, nor have we found any. All of this universal authority, however, involved cases in which the claimant rescuer’s contributory negligence was an absolute bar to recovery. In such cases, not only are there policy reasons to prohibit the at-fault rescuer’s recovery, but, and this must be stressed, there would be no occasion to consider the rescuer’s post-accident negligence since the rescuer would be barred completely by contributory negligence. Thus, the defendant’s claim boils down simply to the question whether the unchallenged rule that a contributor to the peril cannot invoke the rescue doctrine survives intact under Connecticut’s comparative negligence law or whether that rule is enveloped within, and in a different form becomes a part of, the doctrine of comparative negligence.

Appellate courts in jurisdictions which have adopted a comparative negligence rule have applied the rescue doctrine in cases where the circumstances warrant it. In Cords v. Anderson, 80 Wis. 2d 525, 548, 259 N.W. 2d 672 (1977), two would-be rescuers were injured attempting to rescue a companion who had fallen into a gorge. In analyzing the effect of comparative negligence on the rescue doctrine the court stated: “We hold that a rescuer is not negligent where the rescue, although dangerous, is not unreasonable or unreasonably carried out. In a comparative negligence jurisdiction such as Wisconsin, if the trier of fact finds that the rescue is unreasonable or unreasonably carried out the fact finder should then make a comparison of negligence between the rescuer and the one whose negligence created the situation to which the rescue was a response.”

In Ryder Truck Rental, Inc. v. Korte, 357 So. 2d 228, 230 (Fla. App. 1978), which involved a police officer injured when he sought to aid the victim of an automobile accident, the Florida Court of Appeals analyzed the question of what effect, if any, the adoption of comparative negligence had upon the rescue doctrine. It concluded as follows: “Now that Florida has abolished contributory negligence [as an absolute defense], the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.”

In Sweetman v. State Highway Department, 137 Mich. App. 14, 357 N.W. 2d 783 (1984), the plaintiff attempted to aid a motorist allegedly injured as the result of the negligent maintenance and design of a highway overpass. The Michigan Court of Appeals closely followed the analysis of Ryder. In so doing, the court extensively discussed the effects of the adoption of a comparative negligence standard on the policy behind the rescue doctrine: “When contributory negligence was the prevailing rule the rescue doctrine served a dual purpose: (1) it helped establish a causal connection between the defendant’s negligence and the plaintiff’s injury, and (2) it served to eliminate the absolute defense of contributory negligence. Ryder Truck Rental, Inc. v. Korte, [supra]. The doctrine helps to establish proximate cause by providing that where a defendant has created a situation of peril for another the defendant is held to have caused the peril not only to the victim but also to his rescuer. . . . This aspect of the rescue doctrine is wholly viable even in the wake of judicial abrogation of the contributory negligence defense. However, since allocation of negligence to the plaintiff under a system of comparative negligence is not a bar to the plaintiffs recovery, the second attribute of the rescue doctrine is no longer compelling. Stated alternatively, we perceive no harsh result from the application of comparative negligence principles to rescue cases.” Sweetman v. State Highway Department, supra, 26.

We agree with the logic of these cases and accordingly hold that the first aspect of the rescue doctrine, that it is not negligence for a plaintiff to make a reasonable attempt to save an individual from peril, survives the adoption of a comparative negligence doctrine. Where, however, the attempt is unreasonable, we find that a result different from that obtained under a contributory negligence standard should apply. The rescuer should not be absolutely barred from recovering but, rather, the amount of his recovery should be reduced by the degree to which he is comparatively negligent.

The defendant admits that there was no evidence in any of these cases that the plaintiffs had contributed to creating the perilous situation which gave rise to their rescue attempts. Therefore, these cases do not reach the narrow issue we consider. He claims, however, that Padilla v. Hooks International, Inc., supra, 123-24, did involve this issue. He notes correctly that in Padilla the defendants claimed that the plaintiff would-be rescuer had negligently contributed to placing the victim in peril on a backhoe he was repairing. He quotes the majority opinion to the effect that “[tjhere are two ways in which a plaintiff’s own negligence can become a fact question in rescue doctrine cases. First, the plaintiff may have been negligent by helping to create the very situation which later ‘invited’ his rescue.

“The rule which relieves from contributory negligence one who voluntarily exposes himself to danger in order to rescue another person from peril does not apply where the rescuer is himself solely or in part responsible for the peril which confronts the one whom he attempts to save. If the third person’s peril is due in part to the plaintiff’s own negligence, such negligence is a contributing factor in producing any harm which he sustains in his rescue attempt.” Id., 123.

The Padilla court thus stated the rule applicable before the advent of comparative negligence. It made no analysis, however, of the effect of comparative negligence on the rescue doctrine. That general issue was clearly enunciated by Sutin, J., concurring, who stated that the “rescue doctrine” takes on a different form when applied to the rule of comparative negligence. Id., 580.

We do not agree with Padilla’s facile acceptance of the old rule. The rescue doctrine no longer serves the purpose of eliminating the absolute defense of contributory negligence in comparative negligence situations. Thus, the bar to its use where the rescuer contributed to the peril no longer makes sense. The purpose of this corollary rule is not applicable to a comparative negligence case and should not be gratuitously extended to that field. Accordingly, we reject the defendant’s invitation to follow Padilla. To do so would be to distort and dilute the socially ameliorative doctrine of comparative negligence. We choose instead to follow the clear path set forth in Sweetman v. State Highway Depart ment, supra, that the rescuer’s negligence in contributing to the peril is to be considered along with all of the other negligence of the rescuer and the defendant.

We hold that the rescue doctrine applies under Connecticut’s comparative negligence statute. This is so whether or not the plaintiff-rescuer contributed to the victim’s peril. When the plaintiff in seeking to effect a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant. The defendant does not otherwise challenge the court’s charge on the totality of the decedent’s contributory negligence, proximate causation and comparative negligence. Accordingly, the court did not err in its charge on the rescue doctrine.

II

The Court’s Allowing the Plaintiff’s Accident Reconstruction Expert Robert Cromwell to Testify

The defendant claims error in three regards concerning the admission of the testimony of Robert Cromwell, the plaintiff’s accident reconstruction expert: (1) in allowing him to testify in violation of a court order entered four years earlier in the case, which order precluded the use of this expert if the discovery schedule set by the court was not followed; (2) in allowing him to testify when such testimony was based upon an insufficient factual foundation which rendered his conclusions speculative and served to confuse and mislead the jury; and (3) in allowing him to testify beyond the scope of the preliminary report admitted into evidence.

A brief background of certain rulings in the case is necessary to understand the issues.

On June 4, 1979, the trial court, Satter, J., ordered pursuant to the stipulation of the parties that “[t]he plaintiffs Frank Zimny and Frieda Zimny will provide to the defendants copies of the reports of any liability experts, including Mr. Cromwell, on or before July 2, 1979. These plaintiffs further agree that no expert will testify as to any matter not specifically reflected in the expert’s report.” The court also ordered that “it is further understood that any deviation from [the order] for a justifiable reason must be — will be permitted only on the order of this court.” On June 30, 1979, the plaintiff produced a three page document prepared by Robert M. Cromwell, which Cromwell called a preliminary report.

On August 30,1984, the court, Aspell, J., ruled that Cromwell could not testify because he had filed only a preliminary report which was not followed up by a final report as required by Judge Satter’s June 4,1979 order. The trial court concluded that such testimony would be a “complete surprise” to the defendants as to the substance of his opinion of the cause of the accident. The court also based its ruling on the case of Going v. Pagani, 172 Conn. 29, 372 A.2d 516 (1976), since Cromwell did not begin his investigation of the case until ten months after the accident and did not see the exact conditions or vehicles involved. The court also concluded that the report was conjectural, speculative and lacked probative value. Finally, the court found that Cromwell’s testimony would tend to confuse and mislead the jury since the most useful evidence would be the report of the state trooper who investigated the accident. On August 31, 1984, the jury was informed of this exclusion of Cromwell’s testimony. The next day the court denied the plaintiff’s motion that Cromwell’s deposition be taken during the trial with respect to his accident reconstruction report. The court also ruled for a second time that Cromwell could not testify. When court reconvened on September 5,1984, the trial court reversed its ruling stating “I just want to tell you that over the weekend I have carefully reconsidered the cases that affected my ruling with respect to the testimony of Cromwell and after much deliberation I have come to the conclusion that I will allow Cromwell to testify to the extent of the information that he gave in the interrogatories.” (Emphasis added.) The defendant excepted to the changed ruling as follows: (1) on the basis of earlier arguments which had resulted in the exclusion of the testimony; (2) on the basis of the court’s reversal of its earlier decision; and (3) on the basis of Going v. Pagani, supra.

A

CLAIMED VIOLATION OF DISCOVERY ORDER

The expert’s “preliminary report” was submitted within the time required in the discovery order. We have examined with care the three page preliminary report. We conclude that the report is a detailed analysis of the dynamics of the accident, directly faulting Hogan as follows: “[T]he plaintiff, Hannelore Zimny, was operating her 1976 Ford in an easterly direction in the left-hand lane when Thomas W. Hogan, Jr., moved his 1966 Oldsmobile left directly into her path causing contact to be made between the right front of the Zimny vehicle and the left rear of the Hogan vehicle.” The report itself concluded by saying: “Based on the damage sustained by vehicles as a result of the various accidents as shown on [p]olice photographs, a reasonable determination of the dynamic motion of the vehicles following impact has been determined, however the reconstruction process must necessarily include all available information and it is the writer’s understanding that witness depositions are presently in process and prior to rendering a final opinion with regard to the reconstruction of this accident, information obtained from the deposition will be necessary to more accurately place the vehicles in their proper relationships prior to impact. A final report will be issued after all available information is received. . . . Following the availability of witness depositions presently in process, I will complete the reconstruction study and submit my final report.”

The defendant claims that Cromwell was awaiting all of the information from the deponents in order to place the vehicles in their proper relationships prior to the impact, and not just for the vehicle identification numbers as he claimed at trial. He contends that Cromwell’s “final” opinion as to the pre-impact position of the cars was not available until the time of trial, and asserts therefore, that Cromwell’s conclusions were a complete surprise and his testimony unfair as a result. According to the defendant, what occurred here is the kind of “cat and mouse game” which we specifically discountenanced in Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (3984).

In Sturdivant, the plaintiff in a medical malpractice case disclosed the name and subject of the testimony of her medical expert during the jury selection process after initially stating in answers to interrogatories that she would use no expert. In supplemental answers to interrogatories she stated that her expert would testify as to the “standard of care and departure from the standard of care.” The trial court excluded all testimony as to causation because it was beyond the scope of the disclosed subject matter of the expert’s testimony. The plaintiff appealed. This court rejected the plaintiff’s claim that the expert was not “formally” retained until after the trial, holding that that was a “tactical subterfuge,” and upheld the court’s discretionary exclusion of the proffered testimony on the basis of Practice Book § 231.

We conclude that the situation in this case is a far cry from that in Sturdivant. There, although the plaintiff admitted that she had consulted with the expert “informally” a few years before the trial, the very existence of the expert and the proposed subject matter of his testimony were completely unknown to the defendant. Sturdivant was a classic case of surprise and trial by ambush. Here, the defendant knew the identity of the expert and the nature of his testimony. The defendant had a detailed report in his hands and a similar response to the interrogatories. Both documents placed fault clearly on Hogan.

The defendant also claims that the trial court, in allowing Cromwell to testify “to the extent of the information that he gave in the interrogatories,” violated Judge Satter’s order that no expert testimony be allowed “as to any matter not specifically reflected in the expert’s report” and that “any deviation from the order will be permitted only on the order of the court.” We conclude that the trial court’s order did not violate Judge Satter’s order. The trial court’s order was specifically limited to the material contained in the preliminary report. Nor has the defendant shown how the testimony deviated from the preliminary report except in very minor ways discussed below. We find that the defendant’s claim of complete surprise is more apparent than real.

The trial court’s order was the type contemplated in Judge Satter’s original order. Even if we were to deem the trial court’s order a deviation from Judge Satter’s order, our Supreme Court has stated: “[Although a judge should not lightly depart from a prior ruling on a motion before the same or a different judge, the prior ruling is not binding.” Barnes v. Schlein, 192 Conn. 732, 734, 473 A.2d 1221 (1984). A trial court’s decision on whether to impose the sanction of excluding an expert’s testimony concerning causation rests within its sound discretion. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978); see also Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (discussion of sanctions pursuant to Practice Book § 231). “ ‘The action of the trial court is not to be disturbed unless it abused its legal discretion, and “[i]n determining this the unquestioned rule is that ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926] Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 [1954].’ Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 [1970]. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 [1959].” DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). The trial court could reasonably have concluded as it did concerning its threshold decision to permit Cromwell to testify.

B

CLAIM OF INSUFFICIENT FACTUAL FOUNDATION

The defendant claims that the case of Going v. Pagani, supra, requires the exclusion of Cromwell’s testimony. In Going, our Supreme Court upheld the trial court’s exclusion of Cromwell’s expert testimony, stating that “this opinion was not permitted since the court found [that] it was based on such conjecture and factual uncertainty as to lack any substantial probative value for the jury.” Id., 33. In reaching this decision the Supreme Court noted (1) that Cromwell did not examine the accident scene until three years and two months after the accident, (2) that the road had been resurfaced in the interim, (3) that the jury had already heard testimony as to the point of impact from the operators of the vehicles involved and from police officers who arrived at the scene shortly after the accident and had observed the location of the vehicles and the debris on the roadway, and (4) that Cromwell’s reconstruction of the accident, and his opinion about the crucial point of impact, were based on calculations made from photographs, the changed accident site, and the moved automobile.

We have carefully considered the defendant’s arguments attempting to show the lack of a factual foundation for Cromwell’s opinion in this case. Notwithstanding the defendant’s assertions to the contrary, we do not consider Going to state an ironclad rule determinative of every case. Rather, we interpret Going as an example of our Supreme Court’s upholding the trial court's ruling concerning the adequacy of the factual foundation of an expert’s testimony. There are several significant reasons why we distinguish Going from the present situation. In the present case, Cromwell surveyed the scene only one and a half years after the accident. The highway had not been changed as it had been in Going. His testimony was not offered, as it was in Going, to establish the exact point of impact, but to reconstruct the sequence and pattern of the accident. Additionally, in this case Cromwell based his conclusion on several factors: the police report and measurements contained in it of the vehicles in at-rest positions after the accident; photographs of the accident scene and the damage done to the vehicles; state highway department maps; the size, weights and centers of gravity of the vehicles involved; his expert estimate of the low coefficient of friction of the icy road surface; his expert knowledge of the ways in which vehicles tend to move when they collide on an icy surface; and his own physical survey of the accident scene. Finally, the crucial facet of Cromwell’s testimony concerned his conclusion that Hogan’s vehicle fishtailed into Zimny’s vehicle as Hogan passed Zimny. That conclusion is based on evidence from photographs and the location of the vehicles after the accident.

The defendant is correct in arguing that the factual foundation of Cromwell’s opinion was weakened as to portions of his testimony which were at variance with actual witnesses. The key portion of his testimony, however, concerned the collision between the Hogan and Zimny vehicles. That testimony was consistent with that of state trooper Gaylord. Finally, Cromwell’s reconstruction of this accident did not rest upon an exact mathematical place of the point of impact on the highway.

The defendant asserts that the trial court erred by admitting five overlay maps concerning the accident. In support on this claim, he contends that each lacked mathematical precision. Cromwell, however, repeated that each overlay was intended only to give approximate locations of the vehicles involved. We find that the defendant’s attack on the factual foundation of Cromwell’s opinion goes to the weight rather than to the admissibility of Cromwell’s opinion evidence.

“Whether a witness is qualified to testify as an expert with respect to a certain matter is a decision to be made by the trial court. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). That decision will not be disturbed on appeal unless there has been an abuse of discretion or there was a clear error involving a misconception of the law. State v. Cosgrove, 181 Conn. 562, 588, 436 A.2d 33 (1980); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony. Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940). Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony. State v. Wallace, 181 Conn. 237, 241, 435 A.2d 20 (1980); Osborski v. New Haven Gas Co., supra.” McKiernan v. Caldor, Inc., 183 Conn. 164, 167-68, 438 A.2d 865 (1981).

“ ‘The facts upon which an expert’s opinion is based are an important consideration in determining the admissibility of his opinion.’ Going v. Pagani, supra, 34. ‘The question of whether a sufficient foundation was laid is a factual question for the court.’ Spoto v. Hayward Mfg. Co., 2 Conn. App. 663, 670, 482 A.2d 91 (1984).” Liskiewicz v. LeBlanc, 5 Conn. App. 136, 141, 497 A.2d 86 (1985).

“Expert opinion testimony as to the point of impact in a motor vehicle accident is proper provided the witness has been qualified and an adequate foundation for his testimony has been laid. . . . The trial judge has a broad discretion to determine the qualifications of an expert. . . . ‘[I]f any reasonable qualification can be established, the objection goes to the weight rather than to the admissibility of the evidence.’ Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 [1940]. ‘Some facts must be shown as the foundation of ... an [expert’s] opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value.’ ” (Citations omitted.) Waldron v. Raccio, 166 Conn. 608, 613-14, 353 A.2d 770 (1974).

We conclude that the trial court did not abuse its wide discretion in admitting Cromwell’s opinion testimony.

C

CLAIM OF ERROR IN ALLOWING CROMWELL TO TESTIFY BEYOND THE SCOPE OF THE PRELIMINARY REPORT ADMITTED INTO EVIDENCE

The defendant claimed in his motions to set aside the verdict, as well as in objections overruled and properly excepted to at trial, that the trial court erred in allowing Cromwell to testify beyond the scope of the preliminary report. The defendant claims two general errors in this regard: (1) in admitting testimony as to the length of the Angelo vehicle and its placement on a particular map overlay; and (2) in admitting testimony as to the dynamics of the collision between the vehicles operated by the defendant and Hannelore Zimny.

The first of these two claims is based on the fact that Cromwell testified at trial that the Angelo vehicle was a maxivan rather than a van, a factor that was not included in the preliminary report. We conclude that was not a significant enough extension of Cromwell’s testimony to merit our attention. Concerning the second issue, the defendant claims that Cromwell testified to several other factors which were never mentioned in his preliminary report; the coefficient of friction; the national crash computer program; the specification for vehicles contained in the NADA handbook; the positioning of vehicles based on the center of gravity of each vehicle; and the various types of damage to each vehicle. The defendant points out that Cromwell’s preliminary report does not even mention these elements which formed the basis for a substantial portion of his testimony.

We do not find that this testimony amounted to a significant extension of the preliminary reports. The trial court’s statement at trial that the evidence was merely “an elaboration of what’s contained in his report,” and that the objection went to the weight, rather than the admissibility, of Cromwell’s testimony is well taken. We find no error in this ruling.

Ill

Error in Failing to Set Aside the Verdict and Order a New Trial or a Remittitur

The defendant claims that the verdict was excessive as a matter of law and that the trial court therefore erred in refusing to set aside the verdict and order a new trial or a remittitur. The defendant briefed only the trial court’s denial of his motions for a remittitur. We therefore conclude that the claim of error as to denial of his motion for a new trial on the grounds of excessiveness of the verdict was abandoned. See State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980). The trial court articulated its denial of the defendant’s motions for remittitur by stating that, in denying them, the court considered the $225,000 paid to the plaintiff as a result of the precedent settlement payments. Thus we must decide whether the court' erred in concluding as a matter of law that the total sum of $1,074,171.90 plus $225,000, or $1,299,171.90, was excessive.

The plaintiffs claim includes, of course, damages for Zimny’s injuries and suffering before she died and for her ultimate death from those injuries. Zimny was nineteen years and ten months old at the time of the accident. She was admitted to the John Dempsey Hospital, after the accident, suffering a crush injury to her chest, including multiple rib fractures and a crushed right lung; a broken neck injury akin to a hanging type injury; and a lacerated liver with extensive bleeding into the abdominal cavity. Because of damage to her lungs, and the fact that her neck injury caused the upper part of her larynx to be ripped loose of the floor of her mouth, she could not breathe voluntarily. She was conscious and suffered severe pain which was described throughout her hospitalization as dramatically painful. She underwent many operations and surgical procedures including a laparotomy, multiple operations of her larynx, the drilling of holes in her head to install Crutchfield tongs, abdominal operations, a bronchoscopy, and the removal of her entire right lung. She was in an iron lung during her entire hospitalization and was drugged to maintain complete paralysis. On February 24, 1976, forty-five days after the accident, she bled to death as a result of her injuries.

Zimny was a student at Eastern Connecticut State College. She was a happy young woman who wished to become an elementary school teacher. She was an excellent student and an achiever. There was expert testimony that based upon a fifty-nine year life expectancy, the net economic loss to her estate was $624,118. The special damages totaled $71,459.36.

The law on this subject has recently been summarized by this court in Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 326, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986), wherein we stated: “A court should be especially hesitant to set aside a jury’s award of damages. This is particularly true in a wrongful death case where ‘[i]t serves no useful purpose to compare a verdict in one . . . case with those in others. No one life is like any other, and the damages for the destruction of one furnish no fixed standard for others.’ Fairbanks v. State, 143 Conn. 653, 661, 124 A.2d 893 (1956). The assessment of damages ‘defies any precise mathematical computation’; Floyd v. Fruit Industries, Inc., 144 Conn. 659, 675, 136 A.2d 918 (1957); and, therefore, establishing damages for wrongful death is a task peculiarly within the expertise of a jury. Kiniry v. Danbury Hospital, 183 Conn. 448, 461, 439 A.2d 408 (1981); McKirdy v. Cascio, 142 Conn. 80, 85, 111 A.2d 555 (1955). ‘However, it is the court’s duty to set aside the verdict when it finds that “it does manifest injustice, and is . . . palpably against the evidence. ...” State v. Chin Lung, 106 Conn. 701, 704, 139 A. 91 (1927).’ Barbieri v. Taylor, [37 Conn. Sup. 1, 3, 426 A.2d 314 (1980)].

“ ‘The trial court’s refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). This is so because ‘[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972). Our function on appeal is, accordingly, limited to determining whether the lower court abused its discretion in denying the plaintiffs’ motion to set aside the verdict. Such a decision ‘can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.’ Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943). The standard of review for an appellate court in a case like this was first stated in Briggs v. Becker, 101 Conn. 62, 66-67, 124 A. 826 (1924): ‘[T]he only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption.’ It is important to note that Briggs and the cases that have followed do not require a direct showing of partiality, prejudice, mistake or corruption, but rather stand for the proposition that if the amount awarded ‘shocks the sense of justice’ as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision. See generally Raia v. Topehius, 165 Conn. 231, 239, 332 A.2d 93 (1973); Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965).” (Footnote added.) Zarrelli v. Barnum Festival Society, Inc., supra, 326-27.

Given the nature and extent of Zimny’s injuries and the pain associated with them, the net economic loss to her estate and the special damages, the amount of damages in this case does not shock the sense of justice so as to compel the conclusion that the jury was influenced by ignorance, partiality, prejudice, or corruption. The court did not err in denying the defendant’s motions for a remittitur.

IV

Whether General Statutes § 52-216 violates the Equal Protection Provisions of the United States Constitution

The defendant in this case challenged the constitutionality of General Statutes § 52-216a at the trial court, but he did not argue that it was unconstitutional on equal protection grounds. Rather, he argued in the trial court that § 52-216a, as amended after Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), was unconstitutionally void for vagueness, and that the court was required to follow the common law by reducing any jury verdict by the amounts the plaintiff received by way of settlement. The court denied this claim. The defendant concedes that he did not raise the equal protection claim at trial but urges the court to review it nonetheless. This violates § 3063 of the Practice Book. We see no reason to depart from the general rule that where an appellant has failed to alert the trial court to a legal claim, even of a constitutional nature, and attempts to raise the issue for the first time on appeal, this court will not consider the issue. Peck v. Jacquemin, 196 Conn. 53, 62 n.13, 491 A.2d 1043 (1985); Chaplin v. Balkus, 189 Conn. 445, 447-48, 456 A.2d 286 (1983); Sands v. Sands, 188 Conn. 98, 106-107, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983).

y

Sufficiency of the Evidence

The defendant’s final claim is that the evidence of his liability was insufficient to support the jury’s verdict. At the close of the plaintiff’s case, the defendant moved for a directed verdict upon which the court reserved decision. After the jury verdict was rendered, the defendant made two motions, one to set aside the verdict, and one for judgment pursuant to Practice Book §§ 320 and 321. The court denied all of these motions.

A trial court in passing upon a motion to set aside a verdict, and this court in reviewing its action thereon is limited by established legal principles. Our rule is clear and long-standing although it has been stated in a variety of ways. “If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence.” Goodman v. Norwalk Jewish Center, Inc., 145 Conn. 146, 154, 139 A.2d 812 (1958); see also Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940).

It is the trial court’s duty to protect the parties by setting aside a verdict where its manifest injustice is so plain as clearly to indicate that the jury has disregarded the rules of law applicable to the case; Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980); or was influenced by ignorance, prejudice, corruption or partiality in reaching a decision. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981); Preisner v. Illman, 1 Conn. App. 264, 268, 470 A.2d 1237 (1984). In setting aside the verdict, the trial court acts in the exercise of a broad legal discretion which, in the absence of a clear abuse, will not be disturbed; and in reviewing the exercise of that discretion every reasonable presumption should be indulged in favor of its correctness. Jacobs v. Goodspeed, supra, 416; Balboni v. Stonick, 2 Conn. App. 523, 526-27, 481 A.2d 82 (1984). Accordingly, in reviewing a jury verdict in relation to a claim of insufficiency of the evidence, the evidence must be viewed in the light most favorable to the plaintiff. See Meyer v. Barnes, 2 Conn. App. 485, 486, 479 A.2d 1236 (1984).

We must reiterate the fact that a court should be especially hesitant to set aside a jury’s award of damages. “ ‘The trial court’s refusal to set aside [a] jury verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness.’ ” Zarrelli v. Barnum Festival Society, Inc., supra, 326; Kalleher v. Orr, supra, 127.

In his brief the defendant cites detailed testimony which he claims proves not only evidence of the defendant’s non-negligent conduct, but also that the accident was unavoidable. He stresses: (1) testimony of the defendant, his mother, and his sister that while their vehicle travelled on the bridge it was struck very hard twice in the rear by another vehicle later determined to be the Zimny vehicle; (2) his own testimony that his vehicle never spun out either clockwise or counterclockwise and that the front of his car did not collide with or strike the right side of the Zimny vehicle; (3) the testimony of Gaylord concerning the very slippery road conditions; (4) Gaylord’s testimony that the cause of the accident was weather conditions and not anything that any of the operators did; (5) the testimony of Gaylord and Cromwell that the fatal accident was separate and distinct from the Hogan-Zimny accident; (6) various discrepancies in witnesses’ testimony, particularly that of the decedent’s mother.

The plaintiff claims that there was credible evidence of the following: The defendant, who had been proceeding eastbound on 1-84 from Waterbury to the accident scene, knew or should have known that the road surface to the west of the accident was slippery and hazardous. When the defendant came upon the scene of the Lundy collision and saw that the highway was partially obstructed, he nonetheless attempted to proceed through the obstruction. The defendant was operating his vehicle at a rate of speed greater than that of the Zimny vehicle and sought to pass the Zimny vehicle. Because of the defendant’s speed, his location on the highway, and the condition of the highway, he lost control of his vehicle and collided with the Zimny vehicle. The collision of the defendant’s vehicle with the Zimny vehicle forced the Zimny vehicle into the left curbing of the highway, where it came to rest. The defendant thus left the Zimny vehicle and its occupants in a position of peril. Thereafter and in the course of seeking to effect a rescue of her mother from a position of peril caused by the defendant, the decedent was struck and severely injured by a tractor trailer.

It is axiomatic that the jury is the judge of the credibility of witnesses. Balboni v. Stonick, supra, 529. With his sufficiency of the evidence claim, the defendant is in effect attempting to retry the case. This is an extremely complex case in which the jury heard not only from all the surviving participants in the accident, but also from five police officers, a reconstruction expert and a meteorologist. Because of the significance of the case, and the eompli-cated fact pattern, we have examined with care the portions of the transcript cited by the parties. We conclude that there was credible evidence from which the jury could reasonably have found that the defendant was negligent and was the proximate cause of the accident that resulted in the plaintiffs injuries and death. The trial court did not abuse the broad discretion vested in it in denying the defendant’s motion to overturn the verdict.

We find no error.

In this opinion the other judges concurred.

       Under the rule cited by Turpel v. Sayles, 692 P.2d 1290 (Nev. 1985) the rescuer’s actions must be short of rashness or recklessness. Other cases use wanton conduct to limit the rescuer’s right to invoke the rescue doctrine. The diverging but overlapping tests developed in a host of cases is ably discussed in the concurring opinion by Sutin, J. in Padilla v. Hooks International, Inc., 99 N.M. 121, 123, 654 P.2d 574 (1982). The law in Connecticut confines the application of the rescue doctrine to one who makes a reasonable effort to effect a rescue. This follows the rule formulated in 2 Restatement (Second), Torts § 472.

       The court charged the jury on the rescue doctrine as follows: “Now with respect to the rescue doctrine, the defendant Thomas Hogan has made several allegations of comparative negligence against Hannelore Zimny. One of these allegations is that she failed to use reasonable care for her own safety under the circumstances and conditions. Although the allegation of the answer is not specific, the defendant has argued, in effect, that Hannelore Zimny should not have gotten out of her car in an attempt to rescue her mother. You will recall that Hannelore Zimny was struck while she was standing in the highway attempting to open the passenger side door.
      “I charge you that with respect to the question of contributory negligence, you must bring to bear upon that question the same tests and considerations which you have brought to bear on the issue of Mr. Hogan’s negligence in the first instance. In other words, you must find that the act or acts were negligent, and you must find that the act or acts in question were a proximate cause of the accident which led to her eventual death.
      “Now, in respect to the possible comparative negligence of Hannelore Zimny, there is a doctrine in the law which you may consider when viewing her conduct. That doctrine is known as the rescue doctrine. Succinctly put, that doctrine states that it is not contributory or comparative negligence for a person to expose himself or herself to danger in a reasonable effort to safely [rescue] a third party. You will note that I have used the word ‘reasonable.’ The rescue doctrine applies only where the effort being made to save another person is reasonable under the circumstances. The conduct of the person doing the rescuing, however, must be judged under the circumstances.
      “You may find that the circumstances in the case were a sudden emergency which Miss Zimny was confronting. If you find that she was reasonably confronting a sudden emergency, then her conduct is to be judged not in the light of cold reason, but in view of the emotions which a daughter might have for her mother under the circumstances, and you will take into consideration her lack of opportunity for deliberation and the exercise of cool judgment.
      “In other words, the rescue doctrine has several parts to it. These parts are as follows: (1) you must consider the circumstances of Miss Zimny’s conduct; (2) if you find that at the time she attempted to rescue her mother, she was reasonably faced with a sudden emergency and reasonably had fear that her mother might be injured if she did not act; then, (3) you may consider her conduct under the circumstances and you should not judge her as a person who has time for cool deliberation, but a person who may have had aroused emotions for the safety of her mother and acted quickly in a reasonable effort to safely [rescue] her mother from danger.

        “You may find that the rescue doctrine is particularly applicable when the rescuer stands in a close relationship of blood or affection to the person being rescued. So much for rescue.”
      This charge was substantially similar to the plaintiff’s request to charge.

       The defendant expatiated this objection to the charge in a later exception. “[MR. ADINOLFI:] Yes, your Honor. It’s our position that the rescue doctrine here was inapplicable. The case in 127 Connecticut on which your Honor relies is a case in which a mother exposed herself to danger by attempting to warn her child from the railroad tracks and the mother had nothing whatever to do to placing that child in the position of danger. And we have found a case in the court of appeals of Arizona — we don’t have — that specific question of whether or not the plaintiff has placed the rescuee in the position of danger has not come up in Connecticut, but it has come up in the court of appeals of Arizona in Sulpher Springs Valley Electric Cooperative Inc. v. Doris Verdugo in 481 Pacific 2d at 511, and that follows the restatement of torts doctrine, Restatement 2d of Torts, section 472, in which it is clear that the rescue doctrine does not apply if the plaintiff himself or herself had anything to do with putting the person to be rescued in that position of danger.”

       General Statutes § 52-272 (a) provides: “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from injury to persons or damage to property, if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought. Any damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering.”

       The plaintiff claims that since the defendants’ brief concerning these issues did not comply with Practice Book § 3060F (d) (3), we should not consider these claims of error. The plaintiff is correct that the defendant failed to present his evidentiary claims of error in the manner required. “Because the . . . allegations of error challenge only the trial court’s exercise of discretion with regard to the admissibility of expert testimony enforcement of the Practice Book [would] cause no injustice . . . .” Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 171, 510 A.2d 440 (1986). We therefore could decline to consider the issues raised. See Fogg v. Wakelee, 196 Conn. 287, 492 A.2d 511 (1985); Acheson v. White, 195 Conn. 211, 487 A.2d 197 (1985). Notwithstanding that fact “[bjecause the application of the rule to this case is so complex, we nonetheless choose to consider [his] claims of error on their merits.” Liskiewicz v. LeBlanc, 5 Conn. App. 136, 139 n.2, 497 A.2d 86 (1985).

       For a case in which this court did find error in the trial court’s allowing incursions into the area of expert testimony which the court had previously forbidden, see Hartford v. Anderson Fair-Oaks Inc., 7 Conn. App. 591, 600, 510 A.2d 200 (1986).

       The parties agree that the apparently ubiquitous Cromwell was involved in both cases.

       We consider this matter on the basis of the gross award of $1,074,171.90 before the reduction of the jury’s award by 20 percent due to the plaintiffs decedent’s contributory negligence.

       Although the quoted language concerns the setting aside of a jury verdict its reasoning and authority is obviously equally applicable to the issue of a remittitur by the trial court.

       General Statutes § 52-216a provides as follows: “An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       Practice Book § 3063, made applicable to this court by virtue of Practice Book § 2000, provides: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to trial.”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    Midway Green Corporation v. Board of Tax Review of the Town of Windsor
    (4451)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs June 19
    decision released August 5, 1986

      Sanford J. Plepler filed a brief for the appellant (plaintiff).

      Vincent W. Oswecki, Jr., filed a brief for the appellee (defendant).
   Spallone, J.

The plaintiff has appealed from the judgment rendered after the trial court dismissed its tax appeal. The plaintiff challenged the assessment of its real estate by the town of Windsor on the grand lists of October 1, 1982, 1983 and 1984. In its original complaint, the plaintiff appealed from the decision of the defendant, the Windsor board of tax review, assessing the plaintiffs real estate in the amount of $2,325,880 on the grand list of October 1, 1982. By amendments to its complaint, the defendant appealed the assessment of $2,828,740 on the grand list of both October 1,1983, and October 1,1984. After a full trial, the court sustained the action of the board and rendered judgment for the defendant.

On appeal to this court, the plaintiff claims that the decision of the trial court is erroneous because it held that the plaintiff failed to sustain its burden of proof as to whether the action of the assessor, in not lowering the percentage of completion regarding a commercial building located on the property, was a nonfeasance or misfeasance. The plaintiff also claims that the court’s conclusion as to the fair market value of the property was erroneous.

Regardless of the arguments pressed by the plaintiff, this appeal is predicated upon the proposition that the court should have accepted the plaintiff’s rather than the defendant’s appraisers’ valuation of the real estate in question. Further, although the plaintiff emphasizes in its brief a “percentage of completion” variance found in the reports of different appraisers, such an argument is irrelevant and unavailing since an appraisal is based on the fair market value of the real estate on a given date rather than on the percentage of completion on that date.

The only question properly before us is whether the conclusion of the trial court is supported by the evidence adduced at the trial. In an appeal from the action of a board of tax review, the function of the trial court is the ascertainment of the true and actual value of the plaintiffs property. Dickau v. Glastonbury, 156 Conn. 437, 444, 242 A.2d 777 (1968); see Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 673, 154 A.2d 608 (1959). The ultimate decision for the court is whether, considering all of the evidence, including a viewing of the property, the plaintiff has proved by a fair preponderance of the evidence that any of the assessments on its property were illegal or excessive. Our Supreme Court has noted that this is a difficult burden. Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 633 n.8, 438 A.2d 782 (1981). “ ‘[Pjroper deference must be given to the judgment and experience of assessors.’ ” Id., quoting Connecticut Coke Co. v. New Haven, 169 Conn. 663, 668, 364 A.2d 178 (1975). In applying this principle, “ ‘[t]he law contemplates that a wide discretion is to be accorded to assessors, and unless their action is discriminatory or so unreasonable that property is substantially overvalued and thus injustice and illegality result, their opinion and judgment should control in the determination of value for taxation purposes.’ ” Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 86, 291 A.2d 715 (1971), quoting Burritt Mutual Savings Bank v. New Britain, supra, 675; see Somers v. Meriden, 119 Conn. 5, 13, 174 A. 184 (1934). Only if the court finds that the property has been overvalued by the assessors, can it exercise its power to correct the valuation. Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92 (1972).

In arriving at its determination as to the correctness of the valuation, the trier is not limited to arbitrating the differing opinions of the expert witnesses but is to draw its conclusions in light of all the circumstances, the evidence, its general knowledge and its viewing of the premises. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972). The trier may accept or reject the testimony of an expert, offered by one party or the other, in whole or in part. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981); Richard v. A. Waldman & Sons, Inc., 155 Conn. 343, 348, 232 A.2d 307 (1967); Filipetti v. Filipetti, 2 Conn. App. 456, 459, 479 A.2d 1229, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984). Ultimately, the determination of the value of real estate is a matter of opinion, which depends upon the considered judgment of the trial judge who takes into account the different opinions expressed by the various witnesses. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693 (1959). The credit to be afforded the opinion of any party’s expert witness is a fact-finding function of the trier. Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 607, 424 A.2d 282 (1979); National Folding Box Co. v. New Haven, 146 Conn. 578, 588, 153 A.2d 420 (1959).

As we have stated above, the plaintiff’s arguments with regard to the discrepancies in the various appraisal reports in no way affect the central issue in this appeal, which is the correctness of the defendant’s assessment. Also, the plaintiff’s allusion to the action of the town’s assessor in not making a change concerning the percentage of completion as somehow constituting a wrong that should result in a finding that the assessment was illegal, is wholly without merit.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Danielle R. Hurder et al. v. Elizabeth M. Pelkey et al.
    (3624)
    Dupont, C. J., Hull, and Daly, Js.
    Argued April 29
    decision released August 5, 1986

      Herbert Watstein, for the appellants (plaintiffs).

      Herbert J. Shepardson, for the appellees (defendants).
   Daly, J.

The plaintiffs instituted this action against the defendants to recover for injuries and damages sustained by the named plaintiff as a result of an intersection accident involving a bicycle operated by the named plaintiff and an automobile operated by the named defendant. The plaintiff has appealed from the refusal by the trial court to set aside the jury verdict rendered in favor of the defendant. The plaintiffs sole claim of error is that the trial court failed to charge the jury in accordance with her requests to charge.

The jury could reasonably have found the following facts. On June 27, 1979, the fifteen year old plaintiff, Danielle R. Hurder, was riding her bicycle in an easterly direction on New Street in Bristol with a friend, Heidi Bishop. The two were approaching the intersection of New Street and Andrews Street. The defendant, at that time, was operating a motor vehicle at a speed below the posted speed limit in a southerly direction on Andrews Street. While there was a stop sign on New Street, there was no stop sign on Andrews Street at the intersection. Bishop stopped at the stop sign on New Street before reaching the intersection. The plaintiff, however, rode her bicycle past the stop sign without stopping and into the intersection where she was struck by the defendant’s motor vehicle and sustained severe injuries as a result of the collision.

The plaintiff alleged that the defendant was negligent in several respects in the operation of her motor vehicle, inter alia, in failing to keep a proper lookout; in failing to sound her horn; in failing to stop her motor vehicle in time to avoid the collision; and in travelling at an excessive rate of speed. The defendant pleaded contributory negligence on the part of the plaintiff.

“The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered.” Practice Book § 315. While the plaintiff filed written requests to charge in accordance with Practice Book § 315, she violated the mandate of Practice Book § 318 which enjoins a party from filing more than fifteen requests “unless, for good cause shown, the court permits the filing of an additional number.” The plaintiff filed twenty-six requests, without seeking leave of the court to do so. Filing more than fifteen requests to charge relieves the trial court of the duty to choose any of them. “In these circumstances the trial judge is under no duty to select [the plaintiffs] fifteen finalists among the [twenty-six] contestants.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 527 n.2, 457 A.2d 656 (1983). The trial court did not, therefore, err in refusing to give any of the instructions which the plaintiff had requested.

There is no error.

In this opinion the other judges concurred.

       We will refer to the parties as the plaintiff and defendant because the coplaintiff is the father of the named plaintiff and the codefendant is the owner of the car the defendant was operating.


author: Bieluch, J.

text:
    Seismograph Service (England), Limited v. Bolt Associates, Inc.
    (4495)
    Borden, Spallone and Bieluch, Js.
    Argued May 6
    decision released August 12, 1986

      Gordon R. Erickson, with whom, on the brief, was Stephen A. Wise, for the appellant (named defendant-third party plaintiff).

      Michael A. Dowling, for the appellee (third party defendant Gardner-Denver Company).
   Bieluch, J.

This appeal arises out of a complex action involving a defective air compressor manufactured by the third party defendant, Gardner-Denver Company (Gardner-Denver), and sold by the defendant, Bolt Associates, Inc. (Bolt), to the plaintiff, Seismograph Service (England), Limited (Seismograph), as part of a much larger package of machinery. This appeal was filed by Bolt as a result of the trial court’s ruling that Gardner-Denver was entitled to try its counterclaim against Bolt in a separate proceeding after two prior trials had already determined the respective issues of liability and damages on the other claims between the three parties. We find error.

The facts are not in dispute. Seismograph is engaged in the business of marine geographical surveying. In connection with its business, Seismograph purchased from Bolt for $199,885 components of machinery which were installed aboard a ship for the purpose of surveying the bottom of the North Sea off the coast of Norway in a search for oil deposits. The survey required that the machinery be continuously in operation for long periods of time. One of the main components of the package was an air compressor which had been purchased by Bolt from Gardner-Denver for $19,000. After 155 hours of use in connection with the survey of the North Sea, the compressor failed, making all components of the survey machinery inoperable. As a result, Seismograph’s ship was forced to return to Norway, where it was laid up for approximately fifty-four days while repairs and modifications were made to the air compressor.

Seismograph commenced the present action against Bolt, claiming that Bolt had breached both express and implied warranties that the machinery would be fit for Seismograph’s purposes. Bolt, in turn, impleaded Gardner-Denver, alleging that Bolt had relied upon Gardner-Denver’s warranties to it in using the air compressor as part of the package which it sold to Seismograph and that those warranties had been breached by Gardner-Denver. Gardner-Denver counterclaimed against Bolt for goods and services rendered to, but not paid for by Bolt.

The parties agreed to bifurcate the trial on the issues of breach of warranty and damages, respectively. As a result of the first trial, jury verdicts were rendered against Bolt in favor of Seismograph, and against Gardner-Denver in favor of Bolt. After the second trial, the jury awarded damages of $194,177 to Seismograph, and damages of the same amount to Bolt. The trial court subsequently denied Bolt’s motion for attorney’s fees, concluding that Bolt’s recovery against Gardner-Denver “was not a pure indemnity situation.” Thereafter, Bolt moved for a judgment dismissing Gardner-Denver’s counterclaim against it, and for a final judgment on the court’s prior order denying its demand for attorney’s fees. Gardner-Denver objected to the motion relative to its counterclaim, arguing that it had never withdrawn its counterclaim and that it had expected the trial of that counterclaim to go forward after the first two trials were completed. The court denied Bolt’s motions for dismissal and final judgment. Bolt’s subsequent motion to amend its reply to Gardner-Denver’s counterclaim by adding a special defense of res judicata and collateral estoppel was also denied. Bolt and Gardner-Denver then stipulated to a judgment in favor of Gardner-Denver on its counterclaim in the amount of $7547.72, subject to Bolt’s right to appeal from this judgment and from all other issues as to which it had given proper notice of appeal.

Bolt claims that the trial court erred (1) in denying its motion for a final judgment on Gardner-Denver’s counterclaim, and thus permitting Gardner-Denver to obtain a third and separate trial on its counterclaim, (2) in denying its motion to amend its reply to Gardner-Denver’s counterclaim, and (3) in denying its demand for an award from Gardner-Denver of attorney’s fees incurred in defending Seismograph’s action against it for damages ultimately recovered on its third party complaint against Gardner-Denver.

Bolt’s first claim is that the court erred in permitting Gardner-Denver to obtain a third and separate trial on its counterclaim after two prior trials had already been litigated. We agree.

On October 6, 1981, at the outset of the bifurcated trial held in this matter, the court stated that “evidence will be applicable, except where otherwise indicated, to the Complaint of the Plaintiff, The Defendant Bolt, both on their defense and their [third party complaint] against Gardner-Denver.” At that time, counsel for Gardner-Denver stated: “Of course, this doesn’t come up until we get to the damages, if we ever get there, our Counter Claim against Bolt.” Indeed, in their respective briefs, both parties agree that Gardner-Denver’s counterclaim was not to be involved in the first trial limited to the question of liability. The parties disagree, however, upon whether or not the counterclaim was to be a part of the second trial limited to the award of damages, if any, dependent upon the verdict as to liability in the first trial.

Bolt points to the aforementioned understanding of Gardner-Denver’s counsel at the outset of the litigation as evidence of his client’s own intent to raise the counterclaim during the second trial on the issue of damages. In addition, Bolt farther relies upon the fact that counsel for Bolt and Gardner-Denver both read their pleadings to the jury at the outset of the second trial, including the counterclaim in its entirety and Bolt’s answer to it.

In response to this argument, Gardner-Denver asserts that the court expressly precluded it from trying its counterclaim in the second trial. A review of the transcript, however, clearly demonstrates that this is not the case.

The ruling of the court at the beginning of the second trial to which Gardner-Denver refers relates solely to the issue of apportionment of the plaintiff’s damages between Bolt and Gardner-Denver. That issue had been raised in the second trial as to liability, and the court correctly refused to retry it. The ruling did not extend, however, to Gardner-Denver’s counterclaim, which had never been tried. The counterclaim did not involve the issue of apportionment of the plaintiff’s damages in any way. It related to items and services furnished to Bolt by Gardner-Denver which allegedly were never paid for.

The trial court, in denying Bolt’s motion for a final judgment, found that “[tjhere is nothing in the court’s file or the transcript to indicate as proof that Gardner-Denver withdrew or abandoned its counterclaim.” We conclude that the contrary is the case. The damages trial was, by the uncontroverted evidence, the forum in which Gardner-Denver’s counterclaim was to be tried. At the outset of that trial, the counterclaim was read to the jury. Gardner-Denver has failed to point us to any evidence thereafter which it sought to present on its counterclaim, nor has it shown that the court precluded it from so doing.

The doctrine of res judicata applies “ ‘to any claims relating to the cause of action which were actually made or might have been made.’ ” Gagne v. Norton, 189 Conn. 29, 32, 453 A.2d 1162 (1983), quoting Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973). In the present case, by the reading of the counterclaim at the outset of the second trial, the claims alleged in that pleading were made a part of the trial. The record indicates that no evidence was presented thereafter by Gardner-Denver to support the counterclaim despite its having had ample opportunity to do so. This case provides a paradigm of one of the policies underlying the doctrine of res judicata: “[Ojrdinarily a plaintiff cannot split his cause of action. He cannot sue for part of his claim in one action and then sue for the balance in another action.” Gagne v. Norton, supra, 32. Indeed, in this case, Gardner-Denver having failed to present any evidence on its counterclaim, or good reason for that failure at the second trial, its claim against Bolt evaporated. By permitting it to be resurrected in a third trial, this “litigation would be prolonged beyond the requirements of a sound public policy.” Damico v. Dalton, 1 Conn. App. 186, 188, 469 A.2d 795 (1984). Thus, the court erred in denying Bolt’s motion for a final judgment on Gardner-Denver’s counterclaim and in permitting a third and separate trial on the counterclaim against Bolt.

The sole remaining claim of error relates to the court’s denial, after the second trial, of Bolt’s application for an award from Gardner-Denver of attorney’s fees incurred in defending against Seismograph’s complaint. The court denied such an award on the ground that “[t]his then was not a pure indemnity situation and the claim for attorney fees must fail.” We disagree with the court’s ruling.

The rationale behind the trial court’s denial of an award of attorney’s fees to Bolt was explained in its memorandum of decision as follows: “Faced with the earlier general verdict as an accomplished fact this court instructed the present jury that it must pass on damages found against Bolt on to Gardner-Denver. This jury returned a verdict for $194,177.00 against Bolt and pursuant to the instruction found a similar amount for Bolt against Gardner-Denver. The amount of the verdict was small when compared to the well substantiated damages claimed by the plaintiff. One must conclude that this jury apportioned the damages and returned a verdict for that portion which it thought properly assessable against Gardner-Denver only since it was bound to act within the above mentioned instruction. The jury’s verdict said in effect that Gardner-Denver was not responsible for all of the damages sustained and this was always the position of Gardner-Denver.” That conclusion by the court was unwarranted.

The jury in the first trial was expressly instructed not to apportion liability between Bolt and Gardner-Denver. Similarly, the court refused to try the issue of apportionment of liability at the commencement of the second trial. Under these circumstances, the jury was not asked to apportion damages.

The third party complaint filed by Bolt impleading Gardner-Denver expressly demanded as relief “judgment against Gardner-Denver for all sums that may be adjudged against Bolt Associates in favor of the plaintiff [Seismograph], together with all costs of defense.” That complaint against Gardner-Denver alleged that Bolt’s warranties to Seismograph were made “solely in reliance upon warranties and representations made by Gardner-Denver.” “Since the [third party plaintiff] seek[s], not contribution or partial payment, but complete reimbursement for all loss and expenses arising from the litigation instituted against [it] in the [Seismograph] case, this is an action for indemnity rather than for contribution . . . . ” Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). “The implied contract of indemnity which arises in favor of a person who is exposed to liability on account of the tortious act of another imposes an obligation upon the active wrongdoer to reimburse the indemnitee not only for any damages which he has been obliged to pay but also for reasonable attorney’s fees, at least where he has notice of the suit against the indemnitee and an opportunity to defend. 42 C.J.S., Indemnity, § 24.” Sendroffy. Food Mart of Connecticut, Inc., 34 Conn. Sup. 624, 626, 381 A.2d 565 (1977).

The trial court was in error in relying upon its post-verdict analysis and assumption of how the jury had ruled in deciding not to award reasonable attorney’s fees to Bolt. It was the substance of the allegations and prayer for relief contained in Bolt’s third party complaint against Gardner-Denver which controlled the scope of Bolt’s claim against the third party defendant. Those allegations and prayer for relief clearly constituted a claim for indemnification of payment to Seismograph, together with an award of reasonable attorney’s fees.

There is error, the judgment on the counterclaim of the third party defendant, Gardner-Denver Company, is set aside and the case is remanded with direction to render judgment for the third party plaintiff, Bolt Associates, Inc., on that counterclaim and for further proceedings limited to the claim of the third party plaintiff for reasonable attorney’s fees from the third party defendant.

In this opinion the other judges concurred.

       Because of our conclusion regarding this first claim, we find it unnecessary to address the second issue, namely, whether the court erred in denying Bolt’s motion to amend its reply to Gardner-Denver’s counterclaim so as to plead res judicata and collateral estoppel in any new third trial.


text:
    State of Connecticut v. Edward Dennison, Jr.
    (3489)
    Borden, Spallone and Bieluch, Js.
    Argued May 9
    decision released August 12, 1986

      John J. Buckley, for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from his conviction, after a jury trial, of one count of robbery in the third degree, a violation of General Statutes § 53a-136. The defendant claims that the court erred (1) in instructing the jury on robbery in the third degree as a lesser included offense of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3), and (2) in denying the defendant’s three motions for a judgment of acquittal. We find no error.

The jury could reasonably have found the following facts. On November 22, 1983, Alfred P. Desjardin offered to drive home Charlene Ringwood, a customer of Desjardin’s tobacco business in New Haven. In the course of taking her home, Desjardin stopped outside a house so that Ringwood could go inside briefly while he remained in his car. While he waited for Ringwood to return, a man got into Desjardin’s car and threatened him with what appeared to be, and what the assailant stated was, a knife. The stranger then demanded Desjardin’s money. After searching Desjardin’s right hand pocket, he took approximately $980 which constituted the day’s business receipts. The robber then instructed Desjardin to drive down the street. After a short ride, the robber shifted the car out of gear to stop it and disappeared on foot.

Ringwood, unaware that a robbery had occurred, returned to the street where she had gotten out of the car. After being informed of the robbery, she identified the person she had seen leaving the car as a man named “Eddy,” whom she had known for approximately one year. After Ringwood called the police, she and Desjardin described the man to police officers. Ringwood positively identified a police photograph of the defendant as the assailant, although Desjardin was unable to do so. Subsequent to Ringwood’s statement to the police and her identification of the defendant’s photograph on the evening in question, she returned to the area where the robbery had occurred. There she saw the defendant, who offered to share the proceeds of the robbery with her.

The defendant was charged with the crime of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (3). At the close of the trial, the state requested that the court charge the jury on robbery in the third degree as a lesser included offense. The court did so over the defendant’s objection, after which the jury found the defendant guilty of the lesser charge.

The defendant’s first claim of error is that the state was not entitled to a lesser included offense charge on robbery in the third degree since the element of the offense distinguishing robbery in the first degree as charged by the state from robbery in the third degree, namely, the defendant’s use or threat to use a “dangerous instrument,” was not in dispute at the trial. We disagree.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Emphasis added.) State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). It is the last of these four conditions which is at issue here.

The defendant asserts that he never attempted to dispute “that a knife is a dangerous weapon, or that a knife was possessed by the robber.” We conclude, however, that whether or not he intended to dispute the use or threatened use of a dangerous instrument, a knife, as alleged in the information, that element of the offense was in dispute. Desjardin testified, on direct examination by the state’s attorney, that “[the defendant] put something up against my side which he said was a knife.” He stated further that “it looked like the handle of a knife but it was kind of dark but I mean that’s what it looked like to me, and which he said.” Furthermore, Desjardin also described the object as “blunt.” On cross-examination by defense counsel, Desjardin testified that to the best of his knowledge no knife was ever recovered. He also said that neither he nor his clothing had been cut in any way. Ringwood testified on cross-examination by defense counsel that when the defendant got out of Desjardin’s car, she did not see a knife. Additionally, Officer Francesco Ortiz, of the New Haven police department, on cross-examination by defense counsel testified that no knife was ever recovered during the investigation of this robbery. Under these circumstances, the jury could have reasonably found that the defendant did place some object against Desjardin’s side, but the testimony was far from clear for the jury to conclude whether that object was a knife. Thus, despite the defendant’s claim in this court that he did not dispute that element of the crime of robbery in the first degree, there was a factual dispute in the case regarding whether the defendant had used or threatened to use a “dangerous instrument” in the course of committing the robbery. The state was, therefore, entitled to a jury instruction on the lesser included offense of robbery in the third degree, a charge which did not require proof of the distinguishing element of the use or threatened use of a dangerous instrument for conviction.

The defendant’s second claim of error is that the trial court erred in denying his three motions for judgment of acquittal which were made at the close of the state’s case, at the close of the defendant’s case and after the jury returned its verdict, respectively. The first two motions disputed whether or not the state had met its burden of proof with respect to the charged offense of robbery in the first degree. The third disputed the jury’s verdict finding the defendant guilty of robbery in the third degree since, he claimed, there was insufficient evidence upon which to convict him of that crime. Such motions should only be granted when “the evidence would not reasonably permit a finding of guilty.” Practice Book § 883. The brief synopsis of the evidence which we have recited should suffice to demonstrate that the evidence presented was more than adequate to preclude the granting of the defendant’s motions.

There is no error.

In this opinion the other judges concurred.