author: ESPINOSA, J.

text:
    ELLEN STOTLER, ADMINISTRATRIX (ESTATE OF PAUL A. STOTLER III) v. DEPARTMENT OF TRANSPORTATION
    (AC 33932)
    Bear, Espinosa and Borden, Js.

      Argued November 28, 2012
    officially released May 28, 2013

      Ronald D. Williams, Jr., for the appellant (defendant).

      Eric P. Smith, with whom, on the brief, were Michael A. Stratton and Joel T. Faxon, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The plaintiff, Ellen Stotler, adminstra-trix of the estate of the decedent, Paul A. Stotler III, commenced this action against the defendant, the department of transportation, to recover money damages under Connecticut’s highway defect statute, General Statutes § 13a-144. The defendant appeals from the judgment of the trial court denying its motion to dismiss and/or for summary judgment. The defendant claims that (1) the plaintiffs action should have been dismissed on jurisdictional grounds because the allegations in the plaintiffs complaint were insufficient to state a cause of action under § 13a-144 and (2) it was entitled to judgment as a matter of law because the evidence demonstrated that the alleged highway defects were not the sole proximate cause of the decedent’s injuries. We agree with the defendant’s first claim and reverse the judgment of the trial court.

In her one count complaint, dated June 29, 2007, the plaintiff alleged, in relevant part, that on July 29, 2005, her decedent “was operating his motor vehicle easterly along Route 44, a public highway, in Avon, Connecticut, when a series of collisions occurred when a truck owned by American Crushing and Recycling, LLC, lost control as it traveled down Avon Mountain on Route 44 in Avon, Connecticut.” The plaintiff alleged that a resulting vehicular collision caused the death of her decedent.

Further, the plaintiff alleged that “[s]aid injuries and death occurred due to the neglect and/or default of the [s]tate of Connecticut, its [department of [transportation, its [commissioner of [transportation Stephen E. Korta II, and/or its agent, servants and employees, by means of a defective road, in one or more of the following ways:

“(a) in that they utilized a plan of design, construction and/or repair for the area of Route 44 described above, adopted by the [s]tate of Connecticut and/or its employees, which was totally inadmissible, in that it created an unsafe condition;

“(b) in that they failed to provide adequate warnings and signage on the downhill grade on Route 44 before the intersection;

“(c) in that they failed to construct a necessary runaway truck ramp;

“(d) in that they failed to prohibit trucks on this roadway in the absence of other safeguards;

“(e) in that they failed to have, or failed to have adequate, procedures for maintaining the downhill slope in a safe condition;

“(f) in that they failed to train, or properly train, personnel in inspection of, or maintenance of, the signage and grade;

“(g) in that they failed to maintain, or properly maintain, the roadway for traffic upon it;

“(h) in that they failed to inspect, or properly inspect, the roadway so that it could be maintained or properly maintained;

“(i) in that they failed to train, or properly train, personnel to inspect the roadway so that it could be maintained or properly maintained;

“(j) in that they failed to have, or failed to have adequate, procedures for inspecting and maintaining the roadway so as to be safe for vehicular traffic;

“(k) in that they failed to have procedures in place so adequate notice could be given to correct unsafe conditions on the roadway or so that the roadway could be closed;

“(1) in that they failed to follow procedures which were intended to give adequate notice so that unsafe conditions on the roadway could be corrected, or the roadway closed;

“(m) in that they failed to provide adequate advance warning of said dangerous area to oncoming motorists so that they could avoid foreseeable out of control vehicles coming down the mountain;

“(n) in that they failed to close the road until conditions could be made safe for travel;

“(o) in that they failed to follow practices and procedures set forth in the state’s [p]olicy [m]anual;

“(p) in that they failed to properly supervise state agents, servants or employees who were responsible for maintaining the roadway in a safe condition, and/or

“(q) in that they failed to install visible street signage causing the truck to proceed down the mountain missing the turnoff.” For the injuries sustained by the decedent, the plaintiff sought money damages.

Thereafter, the defendant filed a motion to dismiss and/or for summary judgment. The defendant argued that the plaintiffs complaint should be dismissed on jurisdictional grounds arising from its sovereign immunity because the complaint merely alleged common-law negligence, not the existence of a defect that fell within the scope of § 13a-144. Specifically, the defendant argued that the plaintiff had alleged negligent conduct by the defendant that gave rise to a highway defect, but that the specific allegations in the complaint concerning the absence of certain safety measures as well as the deficient conduct of the defendant concerning the roadway did not relate to defects actionable under § 13a-144. Also, the defendant argued that it was entitled to judgment in its favor because the plaintiff failed to demonstrate that a genuine issue of material fact existed that the claimed highway defects were the sole proximate cause of the decedent’s injuries. The defendant argued that the plaintiff alleged that the collision between the American Crushing and Recycling, LLC, truck and the decedent caused his death. In addition, the defendant argued that the evidence was beyond dispute that negligent actions and omissions of the truck’s owner, David Wilcox, led to the catastrophic brake failure that caused the collision. The defendant argued that the evidence “undeniably” demonstrated that such negligent conduct was a substantial factor in causing the decedent’s death. The defendant attached documentary proof to its motion, pertaining to the issue of sole proximate cause. The plaintiff filed a written memorandum in opposition to the defendant’s motion. Likewise, the plaintiff attached documentary proof to her objection. The defendant filed a written reply to the plaintiffs objection along with additional submissions of documentary proof.

Following a hearing related to the defendant’s motion, the court issued a thorough memorandum of decision in which it denied the motion to dismiss and motion for summary judgment. In denying the motion to dismiss, the court interpreted the complaint to allege that the plan of design of the portion of Route 44 at issue, specifically its steep downhill grade, was an intrinsic design defect which, for trucks, created an unacceptable risk of brake failure. The court concluded that such an allegation concerning the steep downhill grade brought the plaintiffs action within the scope of § 13a-144. Accordingly, the court rejected the defendant’s claim that, because the state was immune from suit beyond the parameters of § 13a-144, the action was not properly before the court. In denying the motion for summary judgment, the court reasoned that genuine issues of material fact existed as to whether the allegedly defective condition of the highway was the sole proximate cause of the injuries at issue. This appeal followed.

I

First, the defendant argues that the plaintiffs action should have been dismissed on jurisdictional grounds because the allegations in the plaintiffs complaint were insufficient to state a cause of action under § 13a-144. We agree.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided on that alone.” (Internal quotation marks omitted.) Electrical Contractors, Inc. v. Dept. of Education, 303 Conn. 402, 413, 35 A.3d 188 (2012).

“Sovereign immunity relates to a court’s subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review. ... In so doing, we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law. ... Not only have we recognized the state’s immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state. . . . Exceptions to this doctrine are few and narrowly construed under our jurisprudence. . . .

“[A] litigant that seeks to overcome the presumption of sovereign immunity must show that (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state’s sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute. ... In making this determination, this court has recognized the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . Where there is any doubt about their meaning or intent they are given the effect which makes the least rather than the most change in sovereign immunity.” (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711-12, 937 A.2d 675 (2007); see also Read v. Plymouth, 110 Conn. App. 657, 663, 955 A.2d 1255 (General Statutes § 13a-149 to be strictly construed), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

“[It is] well established . . . that a defective highway action is an exception to the state’s common-law sovereign immunity from suit. ... [A] defective highway action is, in effect, one against the state as a sovereign. ... It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued. . . . The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144.” (Internal quotation marks omitted.) Salgado v. Commissioner of Transportation, 106 Conn. App. 562, 566, 942 A.2d 546 (2008); see also Hicks v. State, 297 Conn. 798, 804, 1 A.3d 39 (2010); White v. Burns, 213 Conn. 307, 312-13, 567 A.2d 1195 (1990). “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . .” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991). “Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.” Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961).

As set forth previously in this opinion, the plaintiff alleged several ways in which the defendant’s neglect led to the decedent’s death. The court, in denying the motion to dismiss, looked favorably on what it deemed to be an allegation that the steep downhill grade of Route 44 was a defective design from the time of the construction of the roadway. The plaintiff maintains that none of its allegations should be viewed in isolation, but that they all give rise to a valid claim under § 13a-144. The defendant argues the allegations, viewed independently or as a whole, do not relate to the existence of a highway defect.

We begin our analysis of the issue presented with a review of the relevant law. Section 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair ... or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

Our Supreme Court has had occasion to define the parameters of the right of action afforded by § 13a-144. “To prove a breach of statutory duty under this state’s defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence. . . .

“We have held that a highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result .... In Hewison [v. New Haven, 34 Conn. 136, 143 (1867)], we distinguished such highway defects from those objects which have no necessary [connection] with the road bed, or the public travel thereon, and which may expose a person to danger, not as a traveler, but independent of the highway .... We explored this distinction more recently in Comba v. Ridgefield, [177 Conn. 268, 413 A.2d 859 (1979)]. In that case, [we] rejected] the . . . assertion that an overhanging tree limb, which subsequently fell on a traveling automobile, could be a highway defect, [explaining]: [I]f there is a defective condition that is not in the roadway, it must be so direct a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as a lack of reasonable repair. . . . We consistently have held, moreover, that [t]he state is not an insurer of the safety of travelers on the highways which it has a duty to repair. Thus, it is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether or not the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler. . . .

“Because the state is not an insurer of the safety of travelers on the highways, the statutory obligation under § 13a-144 to keep the highway safe from defects is a reactive obligation, not an anticipatory obligation. That is, the [commissioner’s] obligation under § 13a-144 is to remedy a highway defect once he: (1) has actual notice of a specific defect; or (2) is deemed to have constructive notice of a specific defect. As we have noted previously, his obligation does not sound in general negligence. . . . Thus, the [commissioner’s] statutory obligation is to act reasonably in remedying a defect of which he has actual or constructive notice. [In the absence of] such actual or constructive notice, his obligation does not extend to inspecting streets in order to prevent dangerous conditions, even when it is reasonably likely that such conditions may occur. . . . Thus, conditions that are likely to produce a defect and the defect itself are distinguishable, and . . . liability attaches under the highway defect statute only if [the commissioner] has notice of the defect itself. . . . Similarly, the predictability of a future defect is insufficient to prove that [the commissioner] had notice of a defect. . . .

“Finally, with respect to [a claim arising from a defective highway design], it is well established that a public authority acts in a quasi-judicial or legislative capacity in adopting a plan for the improvement or repair of its streets or highways and ordinarily will not be hable for consequential damages for injuries due to errors or defects in the plan adopted. . . . Thus, as we stated in Hoyt v. Danbury, 69 Conn. 341, 37 A. 1061 (1897), [a] defect in the plan upon which [a] highway [is] constructed . . . [does] not [come] within the [highway defect] statute. If such a defect naturally results in a direct injury to an owner of adjacent land, he has his action at common law for this invasion of his proprietary right. . . . But injuries which it may occasion to travelers cannot be made the subject of any action in their favor. They are the result of an error of judgment on the part of the officers of a public corporation, on which has been cast the burden of discharging a governmental duty of a quasi-judicial character. For consequential damage thus occasioned to members of the general public, the common law never gave a remedy; nor has the statute changed the rule. . . . Id., 361-52.

“Recognizing that an unduly rigid application of this rule could work an injustice in certain circumstances, however, the court in Hoyt also stated, in dictum, that, [i]f ... a defect in the plan of construction should be so great as soon to require repairs in order to make the highway safe for travel, a neglect to make these repairs might [support] an action; but the plaintiffs case would be no stronger than if the road had been originally built in the best manner. So, were the plan of construction adopted one which was totally inadmissible . . . the highway would have been in such a defective condition as to have been out of repair from the beginning. Id., 352; see also Donnelly v. Ives, [159 Conn. 163, 168, 268 A.2d 406 (1970)] (recognizing so-called Hoyt exception to general rule of nonliability for error of judgment in plan of design when plan renders highway defective from beginning). Thus, notwithstanding the general rule that the state is not hable for damages sustained by a traveler due to a defect in a highway’s design, the state nevertheless may be hable if such a defect gave rise to a hazard that otherwise would be actionable under § 13a-144.” (Citations omitted; internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268-71, 875 A.2d 459 (2005).

The court in McIntosh further clarified the state of the law with regard to design defect claims raised under the highway defect statute: “[A] design defect claim can be distinguished from a traditional highway defect claim only insofar as the former includes an allegation that the dangerous condition inhered in the highway’s plan of design, that is, the defect was not created by some other external condition, such as a particular occurrence, like a storm, or normal wear and tear. In all other respects, however, a design defect claim is indistinguishable from any other highway defect claim and, accordingly, it is subject to all the same statutory requirements, including the requirement that the alleged defect actually be in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the propose of traveling thereon .... In other words, Hoyt merely precludes the state from raising sovereign immunity as a defense when the plan of design, as implemented, creates the very type of hazardous condition for which the highway defect statute abrogated governmental immunity in the first place and for which the government otherwise would be hable had the dangerous condition originated through means other than the plan of design.” (Citation omitted; internal quotation marks omitted.) Id., 282.

Having reviewed relevant legal principles related to highway defect claims and, in particular, those brought pursuant to a theory of design defect, we must properly interpret the allegations set forth in the plaintiffs complaint. “The interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [W]e have long eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleadings with reference to the general theory upon which it proceeded, and to substantial justice between the parties. . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be constmed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension. . . . [E]ssential allegations may not be supplied by conjecture or remote implication . . . .” (Citations omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 536, 51 A.3d 367 (2012). As set forth previously in this opinion, we are mindful that in determining whether the action should be dismissed, we consider the allegations set forth in the complaint as well as those facts necessarily implied from them, construing them in favor of the pleader. Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn. 413.

With regard to the roadway at issue, the plaintiff explicitly alleged, in broad terms, that the defendant “utilized a plan of design, construction and/or repair . . . which was totally inadmissible . . . The plaintiff went on to allege that there was a lack of appropriate signage and a lack of a runaway truck ramp. As she did before the trial court, the plaintiff argues that the lack of a brake check area off of the roadway, in which drivers of heavy vehicles could check the status of their equipment prior to descending the slope of the roadway, is part of her allegation concerning the lack of adequate safeguards. The plaintiff made numerous allegations concerning the defendant’s failure to prohibit truck traffic, to close the roadway, to warn motorists of dangers, to have and implement appropriate procedures concerning the roadway, to properly inspect the roadway, to maintain the downhill slope of the roadway in a safe condition, to train and supervise those responsible for maintaining the roadway and to follow relevant practices and procedures.

The defendant argues that the trial court fundamentally misinterpreted the pleadings when it determined that the plaintiffs complaint alleged that the plan of design, specifically, the steep downhill grade of Route 44, in and of itself, was defective. The plaintiff, for her part, ruges us to interpret the complaint in a “holistic context.” The plaintiff argues that the lack of safety measures expressly set forth in her complaint must be considered in the context of the steep grade of Route 44. As she states in her main appellate brief: “Alleged defects such as the absence of a runaway truck ramp, a brake check area, and adequate signage are only defective because of the topography of Route 44. If Route 44 was flat, or had substantially less severe gradient, things like a runaway truck ramp would be entirely unnecessary.” (Emphasis in original.) The record does not reflect that the plaintiff asserted as a factual matter before the trial court that the downhill grade of the roadway, in and of itself, was a design defect. Furthermore, during oral argument before this court, the plaintiffs attorney represented that the complaint alleged that the steep downhill grade of the roadway in combination with the lack of safety measures, specifically, the lack of a runaway truck ramp, a brake check area and adequate signage, constituted a design defect.

We disagree with the trial court’s interpretation of the complaint. Neither the express language of the complaint nor the facts necessarily implied from the allegations therein set forth an allegation that the roadway was defective solely because of its steep downhill grade. Viewing the complaint in the manner most favorable to the plaintiff, and in a manner that is entirely consistent with the plaintiffs own interpretation of her complaint, we conclude that it alleged that Route 44 suffered from defects in its design in that, because of its steep grade and lack of adequate safety measures, it was not reasonably safe for public travel.

Viewing the allegations of the complaint as a whole and in the light most favorable to the plaintiff, the allegations do not allege the existence of the type of design defect that is actionable under § 13a-144. Here, the alleged defects necessarily include the lack of tangible safety measures such as a runaway truck ramp, a brake check area and additional signage. These measures are extrinsic to the roadway, and the claim is based on the fact that such measures did not exist at the time of the tragic events at issue. Yet, to be actionable under the statute, an alleged design defect must “actually be in the roadbed or so near to it as to necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon . . . .” (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 282. The absence of these safety measures does not fall in that category as they cannot be said to have actually obstructed or hindered travel. Nor can we reasonably conclude that the alleged deficient conduct of the defendant concerning training, inspection, maintenance and adherence to proper procedures constituted a defective condition in or near the roadway, let alone one that obstructed travel.

The plaintiffs claim is similar in several respects to the claim raised by the plaintiff in McIntosh, alleging a design defect by virtue of a lack of barriers and other safety measures near a roadway to protect persons traveling on the roadway from falling rocks. Id., 264-65. Our Supreme Court held that the claim did not fall under § 13a-144 because it (1) did not involve a condition in or near the roadway that obstructs travel, (2) related to an anticipatory obligation to prevent a dangerous condition and (3) did not constitute an actionable plan of design claim insofar as it did not allege the existence of an actual obstruction in or near the subject roadway. Id., 272. The plaintiffs claim here relates to an alleged defect in the plan pursuant to which the highway was constructed, rather than a claim that a defect in such plan or design resulted in an otherwise actionable hazard, namely, one that was in or near the roadway and which actually obstructed travel. This type of claim is expressly precluded by virtue of Hoyt and its progeny.

For the foregoing reasons, we conclude that the plaintiffs complaint did not state a claim within the ambit of § 13a-144. Accordingly, the plaintiffs claim is barred by the doctrine of sovereign immunity and, on jurisdictional grounds, should have been dismissed by the trial court.

II

The second issue raised by the defendant is that the court improperly denied its motion for summary judgment. The defendant claims that it was entitled to judgment as a matter of law because the evidence demonstrated that the alleged highway defects were not the sole proximate cause of the decedent’s injuries.

We concluded in part I of this opinion that the court lacked subject matter jurisdiction over the plaintiffs cause of action. For this reason, we need not, and do not, reach the merits of the defendant’s claim that it was entitled to judgment as a matter of law.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss and to render judgment dismissing the plaintiffs complaint.

In this opinion the other judges concurred.

       The trial court granted the defendant’s Practice Book § 9-5 motion to consolidate this action with Cummings v. Dept, of Transportation, Superior Court, judicial district of Hartford, Docket No. CV-07-5011774-S (September 29,2011), another defective highway action arising out of the events at issue in the plaintiffs complaint. The court’s memorandum of decision disposed of the defendant’s motions to dismiss and/or for summary judgment in both cases. The defendant has appealed in both the present case and in Cummings. See Cummings v. Dept. of Transportation, 142 Conn. App. 843, 68 A.3d 123 (2013). Subsequently, this court consolidated the related appeals for oral argument only.

       Although the denial of a motion to dismiss ordinarily is not an appealable final judgment, we review the defendant’s claim because the motion was based on a colorable claim of sovereign immunity. See Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (denial of motion to dismiss filed on basis of colorable claim of sovereign immunity is immediately appealable final judgment), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

       The plaintiff argues that this portion of the appeal should be dismissed on jurisdictional grounds because it is an appeal from the denial of a motion for summary judgment, which is not ordinarily an appealable final judgment, and the claim merely concerns the plaintiffs ability to demonstrate proximate cause. See, e.g., Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295 n. 12, 596 A.2d 414 (1991) (denial of summary judgment motion ordinarily is not immediately appealable). Because we need not reach the merits of the defendant’s second claim, we likewise need not resolve this issue.


source: Caselaw Access Project

license: Public Domain

text:
    MICHAEL CUMMINGS ET AL. v. DEPARTMENT OF TRANSPORTATION
    (AC 33929)
    Bear, Espinosa and Borden, Js.

      Argued November 28, 2012
    officially released May 28, 2013

      Ronald D. Williams, Jr., for the appellant (defendant).

      T. J. Donohue, Jr., for the appellee (named plaintiff).

         The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The plaintiff Michael Cummings commenced this action against the defendant, the department of transportation, to recover money damages under Connecticut’s highway defect statute, General Statutes § lSa-144. The defendant appeals from the judgment of the trial court denying its motion to dismiss and/or for summary judgment. The defendant claims that (1) the plaintiffs action should have been dismissed on jurisdictional grounds because the allegations in the plaintiffs complaint were insufficient to state a cause of action under § 13a-144 and (2) it was entitled to judgment as a matter of law because the evidence demonstrated that the alleged highway defects were not the sole proximate cause of the plaintiffs injuries. We agree with the defendant’s first claim and reverse the judgment of the trial court.

In his one count amended complaint, dated August 3, 2009, the plaintiff alleged in relevant part that on July 29, 2005, he “was operating his motor vehicle easterly along Route 44, a public highway, in Avon, Connecticut, when a series of collisions occurred when a truck owned by American Crushing and Recycling, LLC, careened down Avon Mountain from east to west, left the west bound travel path, experienced exploded brakes and crashed into multiple vehicles including the plaintiffs as it traversed and descended the 10 [percent] slope down Avon Mountain on Route 44 in Avon, Connecticut.” The plaintiff alleged that the resulting collision caused him injury.

Further, the plaintiff alleged that “[s]aid injuries occurred due to the neglect and/or default of the [s]tate of Connecticut, its [department of [transportation, its [c]ommissioner of [transportation Stephen E. Korta II, and/or its agents, servants or employees, by means of a defective road, in one or more of the following way:

“(a) in that they utilized a plan of design, construction and/or repair for the area of Route 44 described above, adopted by the [s]tate of Connecticut and/or its employees, which was totally inadequate, in that it created an unsafe condition;

“(b) in that they failed to provide adequate warnings and signage on the downhill grade on Route 44 before the intersection;

“(c) in that they failed to construct a necessary runaway truck ramp;

“(d) in that they failed to prohibit trucks on this roadway in the absence of other safeguards;

“(e) in that they failed to have, or failed to have adequate, procedures for maintaining the downhill slope in a safe condition;

“(f) in that they failed to train, or properly train, personnel in inspection of, or maintenance of, the signage and grade;

“(g) in that they failed to maintain, or properly maintain, the roadway for traffic upon it;

“(h) in that they failed to inspect, or properly inspect, the roadway so that it could be maintained or properly maintained;

“(i) in that they failed to train, or properly train, personnel to inspect the roadway so that it could be maintained or properly maintained;

“(j) in that they failed to have, or failed to have adequate, procedures for inspecting and maintaining the roadway so as to be safe for vehicular traffic;

“(k) in that they failed to have procedures in place so adequate notice could be given to correct unsafe conditions on the roadway or so that the roadway could be closed;

“(1) in that they failed to follow procedures which were intended to give adequate notice so that unsafe conditions on the roadway could be corrected, or the roadway closed;

“(m) in that they failed to provide adequate advance warning of said dangerous area to oncoming motorists so that they could avoid foreseeable out of control vehicles coming down the mountain;

“(n) in that they failed to close the road until conditions could be made safe for travel;

“(o) in that they failed to follow practices and procedures set forth in the state’s [p]olicy [m]anua!;

“(p) in that they failed to properly supervise state agents, servants or employees who were responsible for maintaining the roadway in a safe condition . . .

“(q) in that they failed to install visible street signage for cross streets at Deercliff Road at the top of the mountain [and/or]

“(r) [i]n that they failed to maintain a safe and adequate intersection at Deercliff Road and Route 44 . . . .” The plaintiff sought damages for the injuries resulting from the collision.

Thereafter, the defendant filed a motion to dismiss and/or for summary judgment. The defendant argued that the plaintiffs complaint should be dismissed on jurisdictional grounds arising from its sovereign immunity because the complaint merely alleged common-law negligence, not the existence of a defect that fell within the scope of § 13a-144. Specifically, the defendant argued that the plaintiff had alleged negligent conduct by the defendant that gave rise to a highway defect, but that the specific allegations in the complaint concerning the absence of certain safety measures as well as the deficient conduct of the defendant concerning the roadway did not relate to defects actionable under § 13a-144. Also, the defendant argued that it was entitled to judgment in its favor because the plaintiff failed to demonstrate that a genuine issue of material fact existed that the claimed highway defects were the sole proximate cause of the plaintiffs injuries. The defendant argued that the plaintiff alleged that the collision between the American Crushing and Recycling, LLC truck and the plaintiff caused the plaintiffs injuries. In addition, the defendant argued that the evidence was beyond dispute that negligent actions and omissions of the truck’s owner, David Wilcox, led to the catastrophic brake failure that caused the collision. The defendant argued that the evidence “undeniably” demonstrated that such negligent conduct was a substantial factor in causing the plaintiffs injuries. The defendant attached documentary proof to its motion, pertaining to the issue of sole proximate cause. The plaintiff filed a written memorandum in opposition to the defendant’s motion. Likewise, the plaintiff attached documentary proof to his objection. The defendant filed a written reply to the plaintiff’s objection along with additional submissions of documentary proof.

Following a hearing related to the defendant’s motion, the corut issued a thorough memorandum of decision in which it denied the motion to dismiss and motion for summary judgment. In denying the motion to dismiss, the court interpreted the complaint to allege that the plan of design of the portion of Route 44 at issue, specifically its steep downhill grade, was an intrinsic design defect which, for trucks, created an unacceptable risk of brake failure. The court concluded that such an allegation concerning the steep downhill grade brought the plaintiff’s action within the scope of § 13a-144. Accordingly, the court rejected the defendant’s claim that, because the state was immune from suit beyond the parameters of the § 13a-144, the action was not properly before the court. In denying the motion for summary judgment, the court reasoned that genuine issues of material fact existed as to whether the allegedly defective condition of the highway was the sole proximate cause of the injuries at issue. This appeal followed.

I

First, the defendant argues that the plaintiffs action should have been dismissed on jurisdictional grounds because the allegations in the plaintiffs complaint were insufficient to state a cause of action under § 13a-144. We agree.

The plaintiffs complaint materially is indistinguishable from that brought against the defendant by the plaintiff in Stotler v. Dept. of Transportation, 142 Conn. App. 826, 70 A.3d 114 (2013). In Stotler, we determined that the allegations of the complaint, construed in the light most favorable to the plaintiff, did not fall within the ambit of § 13a-144. Id., 841. We concluded that the claim was barred by the doctrine of sovereign immunity and, on jurisdictional grounds, should have been dismissed by the trial court. Id., 842. The present claim is controlled by our analysis and holding in Stotler. Accordingly, we conclude that the court should have dismissed the complaint.

II

Next, the defendant claims that it was entitled to judgment as a matter of law because the evidence demonstrated that the alleged highway defects were not the sole proximate cause of the plaintiffs injuries. In light of our resolution of the defendant’s first claim, we need not, and do not, reach the merits of this claim.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss and to render judgment dismissing the plaintiffs complaint.

In this opinion the other judges concurred.

       The original complaint included a loss of consortium claim brought by the plaintiff Tammy Cummings, the wife of Michael Cummings. Later, the plaintiffs amended their complaint by withdrawing Tammy Cummings as a plaintiff as well as the loss of consortium claim. In this opinion, we refer to Michael Cummings as the plaintiff.

       The trial court granted the defendant’s Practice Book § 9-5 motion to consolidate this action with Stotler v. Dept. of Transportation, Superior Court, judicial district of Hartford, Docket No. CV-07-5011825-S (September 29,2011), another defective highway action arising out of the events at issue in the plaintiffs complaint. The court’s memorandum of decision disposed of the defendant’s motions to dismiss and/or for summary judgment in both cases.
      The defendant has appealed in both the present case and Stotler. See Stotler v. Dept. of Transportation, 142 Conn. App. 826, 70 A.3d 114 (2013). Subsequently, this court consolidated the related appeals for oral argument only. Also, this court granted the plaintiffs motion to adopt the appellate brief of the plaintiff-appellee in Stotler.


author: SHELDON, J.

text:
    KAREN BRIDENSTINE, CONSERVATOR (GAIL M. STALINSKI) ET AL. v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER ET AL.
    (AC 33778)
    (AC 33807)
    Bear, Sheldon and Sullivan, Js.

      Argued January 10
    officially released May 28, 2013

      Thomas O. Anderson, with whom, on the brief, was Cristin E. Sheehan, for the appellant in AC 33778 (defendant Connecticut Surgeons, LLC).

      William F. White, pro hac vice, with whom were Audrey D. Medd and, on the brief, Ryan K. Deady, pro hac vice, and Joann Provetto, for the appellant in AC 33807 (defendant Jeannine Giovanni).

      Stephen M. Reck, for the appellees (plaintiffs).
   Opinion

SHELDON, J.

The plaintiffs, Karen Bridenstine, previously in her capacity as conservator of Gail M. Sta-linski and now as executrix of the estate of Gail M. Stalinski (decedent), and John Staiinski, brought this medical malpractice action against several health care providers claiming that they had deviated from the standard of care during their postoperative treatment of the decedent. Prior to trial, the plaintiffs withdrew their complaint as to all defendants except Jeannine Giovanni, a physician, and Connecticut Surgeons, LLC. Following a trial, a jury returned a verdict in favor of the defendants. The plaintiffs moved to set aside the verdict and for a new trial on the basis that counsel for Giovanni improperly influenced the jury by asking improper questions that were statutorily prohibited by General Statutes § 19a-17b (d), the peer review statute, and that they were thus deprived of a fair trial. The trial court agreed with the plaintiffs and granted their motion to set aside the verdict and for a new trial, concluding that the line of questioning pursued by counsel for Giovanni was improper and resulted in a manifest injustice to the plaintiffs. The defendants now challenge that judgment on appeal.

The following factual and procedural history was set forth in the trial court’s memorandum of decision in which it granted the plaintiffs’ motion to set aside the verdict. The decedent was admitted to St. Francis Hospital and Medical Center (St. Francis Hospital) for elective gastric bypass surgery, which was performed by Carlos Barba, a surgeon and a member of Connecticut Surgeons, LLC. Barba performed surgery on the decedent on a Monday and he also treated her postopera-tively until the fifth day following the surgery, at which time he transferred the care of the decedent to Giovanni. Giovanni made rounds on Saturday morning and met briefly with the decedent. During the course of that Saturday, Giovanni received several phone calls from Scott Ellner, a hospital resident physician who was monitoring the decedent’s condition. On Saturday afternoon, because of changes in her condition, Giovanni ordered that the decedent be transferred to the intensive care unit. Laurie Loiacono was the attending physician for the intensive care unit that afternoon and evening. While the decedent was in the intensive care unit, she suffered a code, during which she stopped breathing and her heart stopped pumping blood through her body. Although the physicians in the intensive care unit, with the assistance of other medical personnel, were able to get the decedent intubated and restart her heart, it became clear that she had an infectious process in her abdomen. Giovanni was called back to the hospital and she performed surgery on the decedent, during which she discovered and fixed a leak at the surgical bypass site. The decedent ultimately recovered from the infection caused by the leak at the operative site, but never recovered from the anoxic brain injury that she had suffered when her brain was deprived of oxygen during the code. She survived for a period of approximately seventeen months in a persistent vegetative state and then died.

The plaintiffs commenced this action asserting medical negligence claims against the health care providers responsible for the decedent’s care. Prior to trial, the plaintiffs withdrew their claims against some of these health care providers. Subsequent to those withdrawals, the remaining defendants, Giovanni and Connecticut Surgeons, LLC, filed notices of their intent to seek apportionment of responsibility with the former defendants, Saint Francis Hospital, Saint Francis Care, Inc., Woodland Physician Associates, Inc., Barba and Loia-cono (apportionment defendants).

At trial, the plaintiffs acknowledged that they had previously claimed that the apportionment defendants had been negligent in their care of the decedent, but that they were no longer parties to this case, and they argued that Giovanni and Connecticut Surgeons, LLC, were also negligent and, in fact, were more responsible for the injuries suffered by the decedent. The plaintiffs principally claimed that Giovanni breached the standard of care in not timely diagnosing and treating the leak that caused the decedent’s postoperative infection. The plaintiffs argued that if corrective surgery had been timely performed, the decedent likely would not have suffered a code and the consequent anoxic brain injury. In response to the plaintiffs’ claims, the defendants essentially denied that Giovanni herself was negligent and contended, instead, that the apportionment defendants had breached the standard of care, essentially adopting the plaintiffs’ former claims of negligence against those now apportionment defendants. Giovanni was critical of the care provided by the apportionment defendants, stating that, in her opinion, they had deviated from the standard of care in their treatment of the decedent.

On January 27, 2011, during the third week of the four week trial, during the direct examination of Giovanni, her attorney, William F. White, asked her the following sequence of questions:

“[Attorney White]: During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for [the decedent] or attorneys for any of the apportionment defendants ever asked you if your care of [the decedent] was reviewed and evaluated at St. Francis Hospital?

“[Giovanni]: No.

“[Attorney White]: Was it?

“[Giovanni]: Yes, it was.

“[Attorney White]: What was it—•”

At that point, counsel for the plaintiffs objected to the line of questioning and the court excused the jury from the courtroom to hear argument from counsel. Counsel for the plaintiffs explained that he had objected on the ground that White was attempting to introduce before the jury evidence of peer review, which is expressly prohibited by statute. In support of his questioning in this regard, White asserted that he was attempting to introduce evidence that there had been “no finding of inappropriate care” on her part based upon her treatment of the decedent and that that testimony was admissible because the peer review privilege “rests with [Giovanni]” and she was waiving it. Following a lengthy colloquoy, the court concluded that the line of questioning was improper and thus sustained the plaintiffs’ objection. The court ordered that the questions be stricken and issued a curative instruction to the jury in which it instructed the jury to disregard the line of questioning at issue and reminded the members of the jury that they would be the judges of what the appropriate standard of care was in treating the decedent and whether Giovanni or any of the apportionment defendants had deviated from that standard of care.

The trial proceeded and ultimately ended with the jury entering a verdict in favor of the defendants. The plaintiffs thereafter filed a motion to set aside the verdict and for a new trial on the basis, inter alia, that the aforementioned questions by White regarding the peer review process unduly influenced the jury and thereby caused them a manifest injustice and deprived them of their right to a fair trial. In response to the plaintiffs’ motion, the defendants objected on the bases that Giovanni “neither discussed peer review proceedings nor was the jury poisoned.” In support of that position, the defendants claimed that the line of questioning at issue “encompassed a total exchange of 20-30 seconds” and that it “cannot be said to even come close to rising to the level of [an] exceptional case . . . .” The defendants claimed that “there was never any mention of the phrase ‘peer review’ nor any discussion of ‘the proceedings of a medical peer review committee,’ and there was not going to be any such discussion or testimony.” They asserted that Giovanni “was never going to indicate that she was exonerated” and that any argument by the plaintiffs that she had intended to testify before the jury that “the hospital cleared [her]” was “completely false” and was not supported by the record. They also claimed that “[u]nder § 19a-17b (d) (4), it would have been appropriate to indicate that . . . Giovanni never had her privileges terminated or restricted . . . .” Even if that were not the case, the defendants argued, because none of that testimony was actually presented to the jury due to the plaintiffs’ immediate objection, the plaintiffs could not possibly have been prejudiced.

The court agreed with the plaintiffs and granted their motion to set aside the verdict and for a new trial. In so doing, the court explained: “The importance of these questions arises from the previously described posture of this medical malpractice case. At the time of trial, [the plaintiffs] had withdrawn [their claims] against [the apportionment defendants], but these former parties were brought back into the litigation [by the defendants] as apportionment defendants. Thus the issue before the jury was not whether medical negligence had occurred, but rather whether . . . Giovanni had been negligent in addition to the negligence of the [apportionment] defendants or whether the [apportionment] defendants were solely responsible for the claimed injuries. The line of questions which are the subject of this motion would have put before the jury the fact that the St. Francis Hospital Peer Review Committee had reviewed the care provided by . . . Giovanni and come to the conclusion that no sanctions were merited. . . .

“The court will now review the sequence of questions in light of [our peer review statute]. It was [Giovanni’s] position that she held a ‘privilege’ and she could waive it. [White] stated ‘that’s why I prefaced the question: did she ever ask, did we ever assert the privilege. She was never asked. [The plaintiffs’ counsel] did ask St. Francis [Hospital]; I am conceding that.’

“A review of the trial transcript indicated that [White] had carefully planned how to put this information before the jury in light of the statutory prescription. The preamble to the question focused on the fact that [Giovanni] had not been asked by either [the plaintiffs] or the apportionment defendants if her care of the decedent ‘was reviewed and evaluated at St. Francis Hospital.’ In this manner the court believes [Giovanni] sought to deflect the anticipated argument that if ‘privilege’ had been claimed at deposition, that a later waiver of the privilege would be ineffective. She sought, in the words of her counsel, to state that ‘there was a finding as to her that there was no finding of anything done inappropriately. ’

“There is an additional difficulty with [Giovanni’s] position that she never asserted a privilege in pretrial discovery proceedings. Portions of [her] deposition [testimony] . . . were included by [the plaintiffs] in support of this motion. As [the] plaintiffs’ [counsel] was inquiring whether and when she had seen a particular study, her response referenced the peer review process. [White] interjected, ‘You are not going to get into anything that was done at the M&M (Mortality and Morbidity) .... If the only place that you saw that and reviewed it was at the medical peer review do not go there. If you saw it someplace else then you may discuss it.’ (Deposition of Jeannine Giovanni, August 26, 2004, p. 513-54). Clearly, [White] was properly raising the statutory prohibition against discovery and directing his client not to answer questions posed by [the plaintiffs’] counsel. [White] may not have used the word ‘privilege’ in his objection and instructions to his client but the effect was the same.

“In [her] posttrial brief . . . [Giovanni] argues that ‘neither the peer review proceedings or the results thereof were going to be revealed or were not revealed.’ The court transcript supports the assertion that [she] did not get a chance to testify that her care had been reviewed and [that] she had not been sanctioned. It does not support her claim that the proceedings of the peer review process were not going to be revealed. It is clear from the colloquy regarding the objection that the intent of the questioning was to allow Giovanni to reveal that there was a peer review process with regard to the care of the decedent and that the . . . care [that she had provided] had not been criticized.

“The court notes that, as this line of questioning was proceeding, the court was very concerned about its direction. It was waiting for an objection from [the plaintiffs]. The moment plaintiffs’ counsel stood up and said ‘Your Honor,’ the court interrupted the questioning and excused the jury. Three people were speaking at once and [the] court has a question [in its] mind whether, despite the professionalism of the court reporter/stenographer, all of the dialogue and any response of the witness before the jury was excused, [were] captured.

“The defendants have not provided any persuasive legal authority to support the argument that . . . Giovanni was in a position to assert or waive a ‘privilege.’ Thus the court is presented with a deliberate and planned series of questions seeking to put before the jury information that the jury was statutorily barred from receiving. Although the full response to the series of questions was not provided, by this time in the trial the jury had heard the testimony of [the plaintiffs’] experts and all of the physicians who were residents or fellows at St. Francis [Hospital] and the attending physician for the [intensive care unit]. Each of th[o]se witnesses was cross-examined by the defendants about the quality of their care.

“Further, prior to the posing of the peer review questions . . . Giovanni in her direct examination had described her care of [the decedent] and directly and indirectly criticized the care of the [apportionment] defendants. Thus, the stage had been set for the revelation that one of these [apportionment] defendants had reviewed the care [provided by] Giovanni and had not sanctioned her.

“The posing of this particular sequence of questions was akin to a statement by counsel. The jury was aware that these individuals were apportionment defendants that . . . Giovanni claimed were solely responsible for the injuries suffered by [the decedent]. It is unlikely that the jury missed the import of the questions being posed by [White] to his client with regard to whether her care had been ‘reviewed and evaluated at St. Francis Hospital.’ . . .

“As the previous discussion demonstrates, the court is of the opinion that the [questions posed by White were improper]. [He posed] a series of questions [that] sought to put before the jury evidence that is barred by statute. Even though the ultimate answer was not provided by the witness, the clear inference that [White] was asking the jury to consider was that the apportionment defendant had absolved . . . Giovanni of responsibility. The jury was well aware of the apportionment claims being made. Further, this line of questioning] occurred during the presentation of the defense in this case when [White] was arguably attempting to elicit testimony that would be favorable to his client’s position. The line of questioning implicitly made the jury aware of the peer review process. As such it opened up a Pandora’s box. It was a series of questions somewhat akin to those types of questions where counsel need not care about the answer or [whether] an objection is sustained [because] the purpose of the question can be achieved without a response. [For example], ‘When did you stop beating your wife?’ Once the jury knew that . . . Giovanni’s care was evaluated at St. Francis Hospital, it was not necessary for [Giovanni] to tell the jury that she had not been sanctioned by the peer review process conducted at St. Francis Hospital. Why would [Giovanni] and her counsel have brought up this event unless they considered it favorable to the positions she was asserting?

“A core responsibility of a judge presiding over a jury trial is to ensure that each of the parties before it receives a fair trial. This responsibility is carried out in the particulars by a court’s ruling on motions, on objections to questions or exhibits and when instructing the jury on the law that is applicable to the claims or defenses asserted. The attorneys for the parties are obligated to zealously advocate for their clients’ position and to marshal admissible evidence in support of that cause. Disagreements [as to] the appropriateness of a line of questions may require the court to issue a limiting instruction when these predictable disagreements arise in front of the jury. As neither the court [n]or the parties are privy to the jury’s deliberations, the impact and the curative force of these instructions is unknowable.

“The court is of the opinion that the [plaintiffs] ... have demonstrated a manifest injury to their right to have a fair trial. The court is mindful that the granting of a new trial is an exceptional remedy.”

“In reaching this conclusion, the court is aware that it gave a strong curative instruction to the [members of the] jury immediately upon their return to the courtroom and that [the plaintiffs] had not moved for a mistrial. Even if [the plaintiffs] had moved for a mistrial at that time, the court would not have granted the motion, but, rather, would have taken it under advisement. The parties were in the third week of a four week trial. The parties had invested an additional period of weeks in selecting a jury. The jurors had invested a substantial amount of their time. The jury had already heard the testimony of approximately eight physicians or medical professionals. In this case, there were sufficient practical reasons to proceed to the conclusion of the trial.

“With regard to the curative instruction, the court presumes, as it must, that the jurors followed its instructions. Sometimes, however, curative instructions may be insufficient. ... In this case, the questions posed by [White] invited the [members of the] jury to consider what they should not. The questions went to the heart of the [defendants’] claims, that they did not want to be tarred with [the] medical negligence of the apportionment defendants. While that is a proper argument, it cannot be supported by evidence of what occurred in the peer review process. The posing of this series of questions caused a manifest injury to [the plaintiffs’] ability to have a fair trial.

“The court has also considered the relative strengths and weaknesses of [the plaintiffs’] claims and the defendants’ defenses in reaching the decision to grant this motion. If the court [were] of the opinion that no reasonable jury could have reached a verdict in favor of the plaintiff, then it would not be granting this motion. In this case, however, each party, in the court’s opinion, provided evidence that would support a verdict in their favor. In such a vigorously prosecuted and defended case, the court cannot rule out that the improper line of questions unduly influenced the .jury. This line of questioning regarding peer review related directly to this hotly contested and pivotal issue of liability between the defendants and the apportionment defendants.

“Thus, after careful consideration, the court finds that in this exceptional case, the plaintiffs’ motion for a new trial must be granted. The court is mindful of the substantial expense involved in the trial of a medical malpractice case such as this one. Here, [White] intentionally posed a series of questions to [Giovanni] that improperly brought to the jury’s attention the peer review process. It was a clever attempt, but an improper one. Even with the curative instruction, the court is not satisfied that [the plaintiffs’] right to a fair trial was preserved. This situation and result could have been avoided by the defendants, but they have brought these consequences upon themselves. The defendants may have a credible defense but the process has been poisoned.” (Citations omitted.)

The defendants thereafter filed motions to reargue and for reconsideration of the court’s decision setting aside the jury’s verdict and ordering a new trial. In her motion to reargue, Giovanni argued that the line of questioning at issue was not improper because § 19a-17b (d) allows for the introduction of evidence that a medical practitioner’s privileges have not been terminated or restricted and that the peer review proceedings were not going to be discussed. Giovanni also reiterated her contention that, even if the line of questioning had been improper, it had not resulted in any prejudice to the plaintiffs.

Connecticut Surgeons, LLC, filed its own motion for reargument and reconsideration of the court’s decision setting aside the verdict and ordering a new trial, in which it claimed (1) that “the decision should be reconsidered because none of the part[ies] brought controlling appellate precedent to the court’s attention . . . [and] [s]uch authority holds that a curative instruction is the proper method to quell any prejudice where objectionable evidence was insufficient to warrant a mistrial”; (2) that the court improperly applied the legal standard applicable to improper comments made during closing arguments because there was no such comment made in this case; (3) that the jury’s verdict did not “hinge on any testimony that it was ordered to disregard”; (4) that the court’s decision was inconsistent in that the court surmised that the jury followed its curative instruction relating to the allegedly improper line of questioning, but, nevertheless set aside the verdict on the basis that the plaintiffs were prejudiced by that line of questioning; and (5) that the court’s decision relied on its “mischaracterization of the purpose and effect of . . . Giovanni’s apportionment complaint.”

The court denied the defendants’ motions for reargument and reconsideration, stating: “The court has reviewed the request for reconsideration and reargument. The brief[s] and motion[s] do not identify cases or issues that the court did not consider when rendering its initial decision. The motion[s are] denied.” These appeals followed.

“The proper appellate standard of review when considering the action of a trial court in granting or denying a motion to set aside a verdict is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done. . . . [T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as [an added] juror . . . but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... In reviewing the action of the trial court in denying [or granting a motion] . . . to set aside the verdict, our primary concern is to determine whether the court abused its discretion. . . . The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to [the] evidence. Moreover, the trial judge can gauge the tenor of the trial, as [this court], on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Patino v. Birken Mfg. Co., 304 Conn. 679, 698-99, 41 A.3d 1013 (2012).

On appeal, the defendants claim that the court erred in granting the plaintiffs’ motion to set aside the jury’s verdict and ordering a new trial. Giovanni claims that the challenged line of questioning was not improper and both defendants claim that the plaintiffs did not suffer a manifest injustice as a result of that line of questioning. We disagree with both claims.

Giovanni argues that the line of questioning was not improper because it was never intended to elicit testimony regarding peer review and that, even if that was the intention, it never came to fruition because the plaintiffs timely objected. Giovanni claimed that it was the intention to ask only whether or not her privileges were restricted or terminated, which, she alleges, is permitted under § 19a-17b (d) (4). The trial court specifically found that Giovanni’s questioning was not, in fact, intended to be so limited and that she had intended to and, in fact did, delve into the prohibited subject of peer review. The court’s finding is supported by the transcript of the colloquoy that occurred upon the plaintiffs’ objection to the challenged line of questioning, cited fully in footnote 6 of this opinion, which reveals that Giovanni took the position during trial that she could simply waive the peer review “privilege,” not that she was going to testify only that her privileges had not been restricted or terminated by Saint Francis Hospital.

The trial court further found that, although they may not have gotten so far as to specifically address the peer review proceedings and results, the questions that the jury heard were tantamount to the proverbial ringing of the bell; that, in other words, the answer did not matter because the question itself provided the answer and the inferences to be drawn therefrom. Although the court stated that “each party [had] provided evidence that would support a verdict in their favor,” we believe that that statement, when read in the context of the entirety of the court’s decision, is a reference to the evidence without regard to the improper questioning. The trial court’s unequivocal determinations that the line of questioning was improper and that it had caused a manifest injustice to the plaintiffs support such a construction. The court was persuaded that the improper questioning tainted the trial and skewed the evidence such that the plaintiffs were denied their right to a fair trial. The trial court was in the best position to sense the atmosphere of the trial and to assess its probable effect of the improper questioning and its implications on the jury’s deliberative process. On that basis, it determined that the plaintiffs had been prejudiced by the questioning, and thus that they were entitled to a new trial. Because the trial court’s judgment must be afforded great weight, and this court is in no position to second-guess its carefully considered ruling, we cannot conclude that the court erred in finding that the plaintiffs were prejudiced and were deprived of a fair trial. We therefore conclude that the court did not abuse its discretion in setting aside the verdict and ordering a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs asserted claims against Saint Francis Hospital and Medical Center, Saint Francis Care, Inc., Connecticut Surgeons, LLC, Woodland Physician Associates, Inc., and physicians Carlos Barba, Jeannine Giovanni and Laurie Loiacono.

       Giovanni and Connecticut Surgeons, LLC, filed separate appeals to this court. We refer to them collectively as the defendants and individually by name.

       General Statutes § 19a-17b (d) provides: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restriction imposed, if any.”

       Although the plaintiffs cited two additional arguments in support of their motion to set aside the jury’s verdict, the trial court rejected those arguments and they are not subject of this appeal.

       Attorney White is not a member of the Connecticut bar, but was licensed to practice law in the state of Rhode Island and had been admitted pro hac vice in this case to represent Giovanni.

       The following is the portion of the January 27, 2011 transcript that represents the entirety of the colloquoy at issue, which the trial court appended to its memorandum of decision:
      “[Attorney White]: During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for the plaintiff or attorneys for any of the apportionment defendants ever asked you if your care of [the decedent] was reviewed and evaluated at St. Francis Hospital?
      “[Giovanni]: No.
      “[Attorney White]: Was it?
      “[Giovanni]: Yes, it was.
      “[Attorney White]: What was it—
      “[Attorney Reck (counsel for the plaintiffs)]: Your Honor—
      “[The Court]: Hold on. Let me excuse the jury.

        “(Jury Excused.)
      “Mr. Reck?
      ‘ ‘ [Attorney Reck]: Peer review—I couldn’t get it. I couldn’t get this information. There would be no way I could examine the people after she said it.
      “It is clearly not allowed. Once again, he throws this stuff out which he knows shouldn’t be brought up.
      “[Attorney White]: Peer review, the privilege rests with who owns the privilege, and the privilege rested with St. Francis Hospital—I am not disputing that—and with the doctors who are there.
      “Now, she is not revealing and has no intention of revealing anything about any co-defendant—excuse me, apportionment defendant, only about the fact that there was a finding as to her that there was no finding of anything done inappropriately.
      “So the peer review privilege rested with St. Francis. He asked St. Francis people if there was peer review—
      “[Attorney Reck]: Let’s look at the transcripts and let’s get the decision. I can’t get it. I mean, you’re going into an area that I could never cross-examine.
      “[Attorney White]: There [is] no such thing as transcripts for those.
      “[Attorney Reck]: Let’s call everybody in then to court.
      “[Attorney White]: And it’s up to them whether they wish to waive their privilege.
      “[Attorney Reck]: Whose privilege is it?
      “[The Court]: What’s the citation for the privilege?
      “[Attorney Reck]: 19a-17b.
      “[The Court]: 19a-17b.
      “[Attorney Reck]: Your Honor, I tried to ask about peer review several times and they cut me off. I could never learn anything about what happened.
      “[Attorney White]: I’m not disagreeing that you asked. That’s why I prefaced the question; did she ever ask, did we ever assert the privilege. She was never asked. You did ask St. Francis; I’m conceding that.
      “[Attorney Reck]: Your Honor, that’s basically saying, okay, we’ve had a trial and now she is found not guilty; now we’ve got this trial. Plus it wasn’t disclosed. I mean, it opens up a whole can of worms.
      “[Attorney White]: What needs to be disclosed?
      “[Attorney Reck]: There was no discovery on it.
      “[The Court]: Counsel, counsel, hold on.
      “This says the review, proceedings of a medical review committee conducting a peer review, shall not be subject to discovery or introduced into evidence in any civil action for or against a health care provider.
      “Do you claim that you have an exception under that statute that’s applicable in this state that would allow you to examine this witness in light of that statute?
      “[Attorney White]: My understanding is the privilege as to her rested with her. And if the court’s interpretation is no, then fine, then I will not go any further.
      “My understanding was that the privilege rested with her and I conceded the St. Francis people were asked, but she was never asked.
      “[The Court]: This says, shall not preclude in any civil action the use of any writing which was reported independently of such proceeding, and in any civil action the testimony of a person concerning the facts which form the basis for the institution of such proceedings of which he had personal knowledge and acquired independent of such proceedings, and any proceedings concerning the termination or restriction of staff privileges other than peer review.
      “Now even with the exception, it says in a civil action any use of any writing—that’s not what we’re talking about here. In any civil action the testimony of any person concerning the facts which form the basis for the institution of the proceedings of which he had personal knowledge. So clearly, the doctor can testify about the facts of her care.
      “Three, any health care provider proceedings regarding the termination or restriction of privileges, which did not occur.
      “Four, in any civil action disclosure of the fact that staff privileges were terminated or restricted.
      “Tell me where in that statute you think that this doctor can say I was exonerated?
      “[Attorney White]: I’m not saying that she is exonerated. She’s saying there was no action and no finding of inappropriate care. That was what she was notified of.
      “Your Honor, I believe that the privilege rests with the doctor, and if St. Francis were here, clearly they would own it.
      “[The Court]: Show me where. Otherwise, counsel, I am very unhappy with the opening of this subject where the statute clearly prevents it, A, from discovery, because it’s not fair to Attorney Reck or Mr. and Mrs. Stalinski—and this is Mr. Stalinski—and Ms. Bridenstine that you’re relying, in fact, on the finding that they were not privileged to participate in; they don’t know what information that the peer review committee had. And it just seems to violate all sorts of kind of our fair play and disclosure.
      “Mr. Anderson [(counsel for Connecticut Surgeons, LLC)], do you wish to be heard on this?
      “[Attorney Anderson]: No, Your Honor. But I’m trying to figure out a way for everybody here to deal with this situation, and I have a suggestion.
      “[The Court]: Well, I’m listening.
      “[Attorney Anderson]: What was the exact question asked?
      “[The Court]: Gail, could you read that back.
      “(Court reporter reads back.)
      “[Attorney Anderson]: My suggestion, Your Honor, from Attorney Reek’s perspective he’s looking at this saying, you know, the prejudice is going to be a finding of exoneration. But with this sort of hanging out there, I think that it would be consistent with the statute and in accordance with the statute to say based on that peer review, were your privileges in any way suspended, you know, whatever else the exception is. Your Honor read it. And that way it sort of washes over what I think Your Honor is concerned about with respect to Attorney Reck.
      “[Attorney Reck]: Your Honor, I have one more thing to add. During the deposition—can I just say this. The thing that really, really bothers me about Attorney White—•
      “[The Court]: What I want you to do is direct your argument to the legal issue here.
      “[Attorney Reck]: Yes. But the first thing that I have to say is that he throws this stuff out there, and then it’s too late, and the cat is out of the bag. When you know, you know this stuff about Social Security disability benefits; you know stuff about peer review. You know this stuff is going to be objected to.
      “[The Court]: Mr. Reck, I am going to ask you to direct your argument toward the legal issue before the court.
      “[The Court]: The legal issue. During the deposition of Dr. Giovanni at page 54, the answer from Dr. Giovanni:
      “ ‘[Answer]: I believe it was reviewed at an M&M, so I know I had seen —
      “ ‘[Attorney White]: You’re not going to get into anything that was done at the M&M’—which is peer review.
      “[The Court]: Do you agree that M&M is peer review? What does M&M stand for?
      “[Attorney White]: Mortality and morbidity.
      “[Attorney Reck]: So Attorney White said you’re not going to get into anything that was done at the M&M.
      “[The Court]: If that’s an accurate reading of the deposition, I’m very unhappy that the subject was even broached in front of the jury. Because under the statute, peer review is privileged; it can’t be discovered and it can’t be used or introduced into evidence. And the sole purpose of questioning her on whether or not she was ever disciplined or her privileges restricted, you know, as a result of this care would in effect saying the peer review for the morbidity and mortality said that she did okay.
      “So I’m going to sustain the objection. And what I’m inclined to do in front of the jury is to say that the question that you heard, the objection was sustained, and that the only review of the care of Dr. Giovanni that’s an issue in this court is going to be done by the jury in this case.
      “[Attorney Reck]: Your Honor, that’s fine. The problem is, you know, it still got out.
      “[The Court]: Do you have a better idea?
      “[Attorney Reck]: I mean I think he should be sanctioned; that it should not have been asked. I think that should be told to the jury.
      “[The Court]: Do you want me to hold a hearing now?
      “[Attorney Reck]: I’m sorry, what was the question?
      “[The Court]: Do you want me to hold a hearing now?
      “[Attorney Reck]: Hold a hearing?
      “[The Court]: On the sanction issue.
      “[Attorney Reck]: Well, I mean, I think sanctions are in order. It keeps happening over and over again. And this is blatant. I mean peer review is always objected to and you can never get into it and everybody knows it, and then he just throws that thing out there like, oh my God, the doctor was exonerated by St. Francis. Now the jury is going to say, well, if St. Francis didn’t find her at fault, so why should we?
      “It’s a huge, huge issue. It’s outrageous. And if you’re going to bring it up—he just sneaks it in there before anybody knows about it when he knows it’s so unprofessional. He should be publically sanctioned. It came out.
      “[The Court]: Mr. Reck, I am not going to take up the issue on sanctions.
      I will review that posttrial, if you care to file an appropriate motion to bring it to the court’s attention.
      “(Pause.)

        “This is what I intend to say on the record and I will hear your comments so we don’t get any issues.
      “I am going to sustain the objection to the line of questions. It was an improper line of questions based upon our General Statutes. I am ordering that the witness’ response to the previous two questions be stricken. In this case you are the judges of what the standard of care is that is applicable to Dr. Giovanni and the other apportionment defendants, and you are also the sole judges of whether or not Dr. Giovanni or the apportionment defendants have deviated from the standard of care.
      “Mr. Reck, do you wish to be heard?
      “[Attorney Reck]: That’s fine, Your Honor.
      “[The Court]: Mr. White?
      “[Attorney White]: That’s fine, Your Honor.
      “[The Court]: Mr. Anderson.
      “[Attorney Anderson]: Yes.
      “[The Corut]: Bring the panel in. (Jury returns.)
      “Ladies and gentlemen, I have sustained the objection to the last two questions. They were an improper line of inquiry or questioning based upon our General Statutes. I am ordering that those responses to the last two questions be stricken, and you may not refer to them or consider them in your deliberations.
      “In this case you, the members of the jury, will be the judge of what standard of care is applicable to Dr. Giovanni or the apportionment defendants, and you will be the judges of whether or not Dr. Giovanni or any of the apportionment defendants have deviated from the standard of care. And there will be other issues I will instruct you on, but at this point I wanted to highlight that. You may inquire, Mr. White.”

       Connecticut Surgeons, LLC, filed an objection to the plaintiffs’ motion in which it adopted the arguments made by Giovanni.

       We note that Connecticut Surgeons, LLC, does not challenge the trial court’s finding that the line of questioning at issue was improper.

       The defendants also claim (1) that the court improperly applied the law regarding objectionable comments made by counsel during closing arguments, rather than the law regarding objectionable witness testimony, and (2) that the court was inconsistent in positing that the jury likely heeded its curative instruction, but, nevertheless setting aside its verdict. The defendants raised these claims for the first time before the trial court in their respective motions to reargue and reconsider the court’s decision setting aside the verdict and ordering a new trial, which the court summarily denied. Because the court provided no explanation of the factual or legal bases for the denial of the defendants’ motions, we are unable to conclude that the court’s decision thereon constituted error.

       We also affirm the court’s order requiring local counsel to be present at all further proceedings in this matter.


author: Per Curiam.

text:
    BENJAMIN JENKINS v. COMMISSIONER OF CORRECTION
    (AC 34351)
    DiPentima, C. J., and Robinson and Sheldon, Js.
    Submitted on briefs March 22
    officially released April 16, 2013
   Per Curiam.

The appeal is dismissed.


text:
    MARCIAL S. v. COMMISSIONER OF CORRECTION
    (AC 33499)
    Gruendel, Alvord and Keller, Js.
    Submitted on briefs March 22
    officially released April 16, 2013
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. NORMAN GASSWAY LEWIS
    (AC 32683)
    Alvord, Bear and Peters, Js.
    Argued March 21
    officially released April 16, 2013
   Per Curiam.

The judgments are affirmed.


text:
    JAMES W. CUMMINGS v. COMMISSIONER OF CORRECTION
    (AC 34145)
    DiPentima, C. J., and Keller and Bishop, Js.
    Argued March 20
    officially released April 16, 2013
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT NIXON v. COMMISSIONER OF CORRECTION
    (AC 33524)
    Lavine, Beach and Keller, Js.
    Argued March 21
    officially released April 16, 2013
   Per Curiam.

The appeal is dismissed.


text:
    DONALD MCBURNEY v. COMMISSIONER OF CORRECTION
    (AC 33074)
    DiPentima, C. J., and Beach and Bear, Js.
    Submitted on briefs March 22
    officially released April 16, 2013
   Per Curiam.

The appeal is dismissed.


text:
    HSBC BANK USA v. CHRISTOPHER D. PECORA ET AL.
    (AC 34337)
    Gruendel, Robinson and Dupont, Js.
    Argued March 18
    officially released April 16, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. WESLEY T. HILLS II
    (AC 34035)
    DiPentima, C. J., and Alvord and Bishop, Js.
    Argued April 10
    officially released April 30, 2013
   Per Curiam.

The judgment is affirmed.


text:
    SCOTT R. JACOBSON v. COMMISSIONER OF CORRECTION
    (AC 33179)
    Bear, Sheldon and Pellegrino, Js.
    Argued April 10
    officially released April 30, 2013
   Per Curiam.

The appeal is dismissed.


text:
    SALEM FIVE MORTGAGE COMPANY, LLC v. DIL ARA BEGUM
    (AC 34679)
    DiPentima, C. J., and Graendel and Bear, Js.
    Submitted on briefs April 12
    officially released April 30, 2013
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    MAURICE L. LANGLOIS v. COMMISSIONER OF CORRECTION
    (AC 33457)
    Beach, Alvord and Sheldon, Js.
    Submitted on briefs April 12
    officially released April 30, 2013
   Per Curiam.

The appeal is dismissed.


text:
    FRANCIS D. ANGIOLILLO v. JOSEPH A. CORONA
    (AC 34917)
    Graendel, Lavine and Beach, Js.
    Argued April 11
    officially released April 30, 2013
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA MAISANO v. GIUSEPPE MAISANO
    (AC 34416)
    Beach, Sheldon and Pellegrino, Js.
    Argued April 16
    officially released May 7, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. EDWIN GUSTAVO OVALLES
    (AC 33982)
    Robinson, Alvord and Keller, Js.
    Argued April 18
    officially released May 7, 2013
   Per Curiam.

The judgment is affirmed.


text:
    HSBC BANK USA, NATIONAL ASSOCIATION, TRUSTEE (DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST SERIES 2005-6) v. JEFFREY NAVIN ET AL.
    (AC 34750)
    Lavine, Robinson and Bear, Js.
    Argued April 17
    officially released May 7, 2013
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.


text:
    REGINA STEEDLEY ET AL. v. ROLAND L. PRATT, JR., ET AL.
    (AC 34422)
    Alvord, Keller and Harper, Js.
    Argued April 22
    officially released May 7, 2013
   Per Curiam.

The judgment is affirmed.


text:
    LEONARDO NOGUEIRA v. COMMISSIONER OF CORRECTION
    (AC 33760)
    DiPentima, C. J., and Lavine and Robinson, Js.
    Argued April 22
    officially released May 7, 2013
   Per Curiam.

The appeal is dismissed.


text:
    VINCENT J. DOWLING, JR. v. WILLIAM F. SHEA ET AL.
    (AC 34837)
    Lavine, Beach and Borden, Js.
    Argued April 24
    officially released May 14, 2013
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSEPH ANCONA
    (AC 33946)
    Gruendel, Bear and Sheldon, Js.
    Argued April 25
    officially released May 14, 2013
   Per Curiam.

The judgment is affirmed.


text:
    LISA HARRIS ET AL. v. KATRINA A. ARSENAULT
    (AC 34142)
    DiPentima, C. J., and Sheldon and Harper, Js.
    Argued April 24
    officially released May 21, 2013
   Per Curiam.

The judgment is affirmed.


text:
    JERMAINE WOODS v. COMMISSIONER OF CORRECTION
    (AC 33717)
    Alvord, Keller and Harper, Js.
    Argued April 22
    officially released May 21, 2013
   Per Curiam.

The judgment is affirmed.