author: Borden, J.

text:
    Virginia M. Patrick v. J. William Burns, Commissioner of Transportation Howard W. Rategan v. Virginia M. Patrick et al. Jeanne M. Delehanty et al., Administratrices (Estate of Kathleen Anderson) v. Virginia M. Patrick et al.
    (3113)
    (3114)
    (3115)
    Dupont, C. J., Hull and Borden, Js.
    Argued October 3
    decision released December 24, 1985

      John W. Sitarz, with whom, on the briefs, were Louis B. Blumenfeld and Ellen M. Burns, for the appellant (defendant commissioner of transportation).

      Jerome J. Sanchy, JohnD. Bagdasarian and Kate W. Haakonsen, with whom, on the briefs, was Eugene A. Marconi, for the appellees (plaintiffs).
   Borden, J.

These three combined appeals arise out of a two car collision which occurred at approximately 9 p.m. on January 17, 1982, on Route 318 in Barkhamsted. The plaintiff in each of the first two cases, Virginia M. Patrick and Howard W. Rategan, was the operator of one of the two cars, and the plaintiffs in the third case, Jeanne M. Delehanty and Carol Annacherico, are the administratrices of the estate of Kathleen Anderson, a passenger in the Rategan car who died as a result of the accident. The plaintiffs sued the defendant, the commissioner of transportation, pursuant to General Statutes § 13a-144 claiming that a large accumulation of ice on the highway was the sole proximate cause of their injuries. See D’Arcy v. Shugrue, 5 Conn. App. 12, 14, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985).

The trial court denied the defendant’s motions for directed verdicts. The jury returned verdicts for the plaintiffs. The court denied the defendant’s motions, filed pursuant to Practice Book §§ 320 and 321, to set aside the verdict and for judgment in accordance with the earlier motions for directed verdicts, and rendered judgments for the plaintiffs. The defendant appeals. His principal claim of error is that the evidence on the issue of causation was insufficient. He also raises a claim of error on the jury charge, and four other claims involving evidentiary rulings and the denial of his motion for mistrial. We find no error.

I

Sufficiency of Evidence of Causation

It was undisputed that the Patrick vehicle crossed over the center line of the highway and collided with the Rategan vehicle. The plaintiffs’ claim was that the ice caused the Patrick vehicle to lose control and cross over the center line. The defendant challenges the sufficiency of the evidence on this issue of causation.

The trial court filed a concise but thoughtful memorandum of decision on the defendant’s motions to set aside the verdicts. With respect to this issue, it determined that “the issue of proximate cause was one of fact which the jury was justified in reaching against the defendant. . . . While the question was open to reasonable disagreement, it cannot be said as a matter of law that 'reasoning minds could not reasonably have reached’ the conclusion of the jury. [Tomczuck v. Alvarez, 184 Conn. 182, 185, 439 A.2d 935 (1981)]. There was evidence of lack of speed on the part of . . . Patrick, her suddenly coming upon a substantial patch of ice without warning and that the area was considerably rutted. . . . Patrick had operated her car a long distance from Massachusetts without incident until she hit the ice. Under the circumstances, the jury was justified in reaching the issue of sole proximate cause in favor of the plaintiffs. There is no more justification for the court to set aside the verdict in favor of the plaintiffs than would have been the case if the jury had found for the defendant.” This ruling, of course, is entitled to great weight because of the trial court’s familiarity with the facts of the case and because of the trial court’s excellent vantage point for evaluating the factors influencing the jury. D’Arcy v. Shugrue, supra, 15; Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 532-33, 480 A.2d 589 (1984). Our limited review of a claim of evidentiary insufficiency is confined to viewing the evidence most favorable to sustaining the verdict. D’Arcy v. Shugrue, supra. The verdict must stand if the jury could reasonably have reached the conclusion it did reach, on the basis of that evidence. Balboni v. Stonick, 2 Conn. App. 523, 526, 481 A.2d 82 (1984).

We note that, although the issue of whether the highway was defective was contested at trial, the defendant does not contest on appeal the sufficiency of that evidence. Nor does he claim that the evidence was such that the jury was compelled to conclude that either Patrick or Rategan was negligent so as to relieve him of his statutory liability. Cf. D’Arcy v. Shugrue, supra. His sole claim here is that the evidence was insufficient to justify a finding that the defect was the sole proximate cause of the collision.

The evidence supporting the verdict on that issue is as follows: In the area of the accident, Route 318 is a secondary highway running easterly and westerly, with a posted speed limit of forty miles per hour and without artificial light. At the area in question, the highway runs steeply downhill in a westerly direction, reaches the bottom of the hill and then runs uphill. At the time of the accident, a thick, rutted ice floe approximately 141 feet long and 14 feet wide covered the entire westbound lane about two-thirds of the way down the hill. This ice floe was not readily visible at night, and had caused other westbound drivers either to swing around it or to proceed very slowly over it in order to avoid sliding over the center line. The varying thickness of the ice created a reverse crown sloping toward the center of the road, which would tend to direct a westbound car traveling downhill into the eastbound lane. The ruts had caused some jarring to another westbound vehicle as it drove over the ice floe.

Before the accident, Patrick, who had been driving about one hour and twenty minutes without incident, was traveling westbound at about forty miles per hour, and Rategan was traveling eastbound at about the same speed. Patrick could recall only starting to go down the hill, applying her brakes a little bit to slow down, continuing to apply her brakes as she descended the hill, and seeing headlights. She next recalls someone opening the door of her car to remove her from it. Her speed of forty miles per hour is equivalent to 58.7 feet per second. Rategan testified that he had started up the hill, traveling easterly, that he saw headlights come across at him, that he swung to the right and that the collision occurred. He next recalled awakening at the hospital. The point of impact of the two vehicles was in the eastbound lane, 105 feet west of the westerly edge of the ice floe. That is, the westbound Patrick vehicle collided with the eastbound Rategan vehicle 105 feet beyond the end of the ice floe.

The issue posed by the defendant’s claim of evidentiary insufficiency is whether the jury’s implicit factual finding that the ice floe caused the collision falls within the sphere of those cases upholding such factual inferenees based on admittedly meager circumstantial evidence; see, e.g., Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964); White v. Herbst, 128 Conn. 659, 25 A.2d 68 (1942); Meyer v. Barnes, 2 Conn. App. 485, 488, 479 A.2d 1236 (1984); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 200-201, 470 A.2d 705 (1984); or those cases precluding such a finding as based on speculation or conjecture. See, e.g., Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971); Chasse v. Albert, 147 Conn. 680, 166 A.2d 148 (1960); Palmieri v. Macero, 146 Conn. 705, 155 A.2d 750 (1959); Latham v. Hankey, 117 Conn. 5, 166 A.2d 400 (1933). Although this is a close case, we conclude that the jury could have reasonably concluded from the circumstantial evidence that Patrick’s loss of control of her vehicle, her crossing over the center line and, thus, her colliding with Rategan’s vehicle was caused solely by the ice floe, and that the loss of control was sufficiently severe to carry her vehicle forward 105 feet to the point of collision.

There is a significant difference between the cases on which the defendant relies; Toomey v. Danaher, supra; Chasse v. Albert, supra; Palmieri v. Macero, supra; Latham v. Hankey, supra; and this case. In those cases, all of which involved loss of control of motor vehicles, there was no evidence of a defect in the highway or other factor which could have caused the loss of control. Thus, the factfinder was left to speculate about the myriad causes of loss of control of a motor vehicle. In this case, however, there was evidence of a highway defect which the jury could have found to be the cause of Patrick’s loss of control.

The defendant’s argument to the contrary rests essentially on three bases, two of which derive from the 105 foot distance between the point of impact and the westerly edge of the ice floe. Those two bases are Rategan’s testimony regarding the point at which the Patrick vehicle crossed the center line, and the testimony of the defendant’s expert on accident reconstruction regarding the same factual issue. The third basis is the likelihood that the accident was caused by other factors, such as the worn tread on Patrick’s front tires and the severe misalignment of those tires, of which there was evidence, or by other causes such as Patrick temporarily blacking out, falling asleep or swerving to avoid a darting animal, of which there was no evidence.

There was evidence that the Patrick vehicle was traveling downhill at 58.7 feet per second and traversed a distance of 105 feet after leaving the ice floe. Thus, it would have taken the Patrick vehicle less than two seconds from leaving the ice to the point of impact. Rategan testified that the Patrick vehicle was about fifty feet from his vehicle when it crossed the center line, and that it was only an instant from that time to the collision. According to the defendant, this evidence requires the inference that the Patrick vehicle crossed the center line about fifty-five feet beyond the ice floe. Rategan also testified, however, that his estimate of distance was only a guess and that he could not be sure of it. The jurors were not required to accept Rategan’s estimates of time and distance. They could reasonably have inferred that those estimates under these circumstances were erroneously low, and that the Patrick vehicle crossed the center line closer to the ice floe than Rategan’s uncertain approximation suggested.

Similarly, the defendant’s expert witness gave his opinion that the Patrick vehicle crossed over the center line seventy to eighty feet beyond the ice floe. With respect to the defendant’s reliance on this testimony, it is axiomatic that the jury is not obliged to credit such opinions. Nielson v. D’Angelo, 1 Conn. App. 239, 247, 471 A.2d 965, cert. dismissed, 193 Conn. 801, 474 A.2d 1259 (1984).

With respect to the other possible causes of the crossover by Patrick, it is sufficient to note that “[p]roof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief” that the material fact is more probable than not. Blados v. Blados, supra, 395.

II

Jury Charge on Defendant’s Statutory Duty

The defendant claims that the trial court committed reversible error by failing to charge the jury in accordance with his request to charge on his statutory duty, insofar as that duty concerns ice on the highway. The gist of the request to charge was that “[t]he mere fact that there is ice on the surface of the highway does not of itself render the highway defective.”

There is no question that the defendant’s request was a correct legal statement and was appropriate to the facts of the case. “The mere fact that ice exists upon a highway does not of itself render the highway defective. Whether or not the highway is rendered defective by the existence of ice or snow thereon depends upon a variety of conditions and circumstances, including the difficulties attending situations as they are created by the rigors of our winters.” Pape v. Cox, 129 Conn. 256, 260, 28 A.2d 10 (1942); see also Baker v. Ives, 162 Conn. 295, 300, 294 A.2d 290 (1972) (highway can be defective by reason of ice depending on circumstances and conditions).

This does not end our inquiry, however. The fact that the trial court has failed to grant a proper request to charge does not necessarily mean that it has committed reversible error. Barrett v. Central Vermont Railway, Inc., 2 Conn. App. 530, 536 n.5., 480 A.2d 589 (1984). We have “often and recently reiterated the ‘familiar principle’ that jury instructions need not be exhaustive or perfect so long as they, considered in their entirety, are legally correct, adapted to the issues, sufficiently clear for the jury’s guidance and fairly present the case to the jury without injustice to either party.” (Citations omitted.) Nielson v. D’Angelo, supra, 244; State v. Heinz, 1 Conn. App. 540, 549, 473 A.2d 1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

Here, the trial court, while not using the precise language requested by the defendant; see State v. McKnight, 191 Conn. 564, 582-84, 469 A.2d 397 (1983); did instruct the jury in accordance with its substance. It instructed the jury essentially that the issue was whether the ice floe created a dangerous condition and whether the defendant took proper steps to make it reasonably safe for travel. It instructed the jury that a highway is defective when it is not reasonably safe for public travel, that is, when its condition is such that it is likely to cause injury to travelers. It emphasized that the defendant was not an insurer of the safety of travelers, that the defendant was not bound to maintain the highway in an absolutely safe condition and that he had met his duty if the highway was reasonably safe. It went on to point out that, even if the jury found the highway not to be reasonably safe, that would not necessarily be sufficient to hold the defendant liable. The court instructed the jury that the test of the defendant’s duty was whether he used reasonable care to make it safe, considering the nature and size of the task of the defendant to maintain all the state highways and the methods used by him to perform that duty. Under these circumstances, we conclude that the court’s instructions, considered as a whole, were “legally correct, adapted to the issues, sufficiently clear for the jury’s guidance and fairly presented] the case to the jury without injustice to either party.” Nielson v. D’Angelo, supra, 244.

The defendant claims that the court’s failure to charge in accordance with his request was particularly grievous because, he asserts, the court had assured him in a precharge chambers conference that it would do so and, relying on that assurance, he emphasized the point in his final argument to the jury. The plaintiffs dispute that such an assurance was given, and the defendant conceded at oral argument in this court that there is no record of such an assurance. Under these circumstances, therefore, we have no occasion to consider whether such an assurance could be the basis for reversible error.

Ill

Denial of Motion for Mistrial

We next consider the defendant’s claim that the court erred in denying his motion for mistrial. The basis of the motion was that inadmissible material was indirectly placed before the jury by three objectionable questions asked by counsel for Rategan, to which the court sustained the defendant’s objections. The defendant’s argument is without merit.

The defendant had filed a motion in limine, requesting the court, in advance of the trial, to exclude several items of evidence, including any “questions, answers, statements, remarks [or] evidence” calling for or referring to “opinions or conclusions by any of the police officers ... as to the cause of the accident and/or the compliance with or breach of a legal duty by any of the parties . . . . ” The court denied this part of the motion in limine without prejudice, postponing the determination of the issues it posed in the attempt to introduce such evidence at the trial.

During the trial, the plaintiffs sought to elicit on direct examination of the officer who investigated the accident answers to the following questions: Whether he “discovered] any evidence or any indication that . . . Rategan did anything which contributed to this accident having taken place?”; and whether he found “anything linking . . . Rategan to the cause of this accident?” On redirect examination, the plaintiffs sought to elicit from the officer his opinion “as to what if anything . . . Rategan may have done to cause this accident?” The court sustained the defendant’s objection to each question. After the third question the defendant moved for a mistrial, which the court denied.

We need not decide on this record whether our civil motion practice includes a motion in limine, which is not specifically mentioned in the Practice Book, although we note that the Supreme Court has implicitly approved its use in criminal cases. See, e.g., State v. Braswell, 194 Conn. 297, 306, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985); State v. Binet, 192 Conn. 618, 621-24, 473 A.2d 1200 (1984). The defendant’s claim of error is not directed so much at the denial of his motion in limine as it is directed to the denial of his motion for a mistrial after the denial of his motion in limine.

In a civil case a mistrial is only warranted if, as a result of some occurrence, “it is apparent to the court that . . . a party cannot have a fair trial and the whole proceedings are vitiated.” Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 (1947); see also Bansak v. Pawelczyk, 173 Conn. 520, 522, 378 A.2d 569 (1977). Compare the substantial equivalent in the criminal context. Practice Book §§ 887, 888; State v. Jennings, 5 Conn. App. 500, 500 A.2d 571 (1985). Whether to declare a mistrial is within the court’s “wide discretion.” Ferino v. Palmer, supra. The evidence in this case took six days to present and consumed more than one thousand pages of transcript. We can hardly find an abuse of discretion in the court’s refusal to declare a mistrial solely because three objectionable questions were asked.

IV

Evidentiary Rulings

The defendant claims that the court erred in a series of four evidentiary rulings because it refused his request to be apprised of the basis of the general objections interposed and of the basis of the court’s rulings, and because the rulings were erroneous. We disagree.

Three of the rulings can be briefly disposed of. On three separate occasions, the plaintiffs objected to a question asked by the defendant. The objections were general, and did not state their bases. The court sustained the objections. The defendant on one occasion asked for the basis of the objection, on one occasion asked for the basis of the ruling, and on one occasion asked for the basis of both the objection and the ruling. None of these bases was forthcoming. The defendant duly excepted each time, but at no time did he state the ground of his claim of admissibility. “ ‘Since the defendant failed to state the ground of his claim of admissibility, the ruling cannot be held to be reversible error.’ ” State v. De Santis, 178 Conn. 534, 540, 423 A.2d 149 (1979); Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960); see Practice Book § 288. The court has no obligation to explain to counsel the basis for its evidentiary rulings, and counsel cannot create that obligation by requesting such an explanation. Nor is there any suggestion in this record that the court precluded the defendant from stating the ground for his claim of admissibility. Cf. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979).

Indeed, the defendant did properly preserve for appellate review the fourth evidentiary ruling by stating his claim of admissibility. This ruling involved the exclusion of a copy of a portion of Patrick’s answers to Rategan’s pretrial interrogatories. See footnote 1, supra.

Patrick had testified that she applied her brakes because she started down the hill, and that she did not recall applying her brakes more firmly as she approached the point of impact. She also testified that she did not recall seeing Rategan’s vehicle, and that she did not recall decreasing her speed after seeing Rategan’s headlights. On cross-examination the defendant sought to introduce the following written question by Rategan and answer by Patrick: “After having seen [Rategan], did [Patrick’s] rate of speed increase or decrease? Answer: Decreased.”

The defendant’s claim of admissibility was confined to the ground that Patrick’s response to the interrogatory was inconsistent with what he claimed to be her in-court testimony that she did not recall applying her brakes on seeing Rategan’s vehicle. In order for a statement to be introduced as a prior inconsistent statement, the court must be persuaded that, taking the testimony of the witness as a whole, the statements are indeed inconsistent, the inconsistency is substantial and relates to a material matter, and the statement yields more than a possible inference of inconsistency. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The court’s determination of these factors involves its discretion, which we will not disturb in the absence of abuse. Id., 711.

It is true that the proferred evidence was inconsistent with the gist of Patrick’s testimony that she did not recall decreasing her speed after seeing Rategan’s headlights. This is so because she could only have decreased her speed on the steep downhill by applying her brakes more firmly, which she testified she did not recall doing.

We conclude, nonetheless, that the court did not abuse its discretion in this ruling. The defendant claimed that Patrick had testified that she did not recall applying her brakes on seeing Rategan’s vehicle. Strictly speaking, she did not so testify. More significantly, taking Patrick’s testimony in its entirety, both on direct and cross-examination, the court could have concluded that the inconsistency was not substantial. Such a discretionary judgment, made by the trial judge who had the opportunity to listen to that entire testimony, is one which we are loath to disturb in the absence of a clear showing of abuse. Thus, the court in this case was within its discretion in concluding that the written response of Patrick was “not sufficiently inconsistent so as to warrant [its] admission into evidence.” Id.

We have fully considered the defendant’s remaining two claims of error and find them to be without merit.

There is no error.

In this opinion the other judges concurred.

       In Rategan v. Patrick (3114), the complaint stated claims against Virginia Patrick and against John Patrick, the owner of the vehicle involved in the accident, in addition to claims against the commissioner of transportation. In Delehanty v. Patrick (3115), the Patricks and Howard Rategan were named as defendants in addition to the commissioner. Prior to trial, all claims except those against the commissioner were withdrawn. As used in this opinion, “the defendant” describes the commissioner only. The other parties are referred to in their capacities as plaintiffs.

       The pertinent request to charge was as follows: “In the eyes of the law, a highway is defective as the result of ice on it when it is not reasonably safe for public travel. The mere fact that there is ice on the surface of the highway does not of itself render the highway defective. Ice is a defect only when its presence on the highway creates a condition which is not reasonably safe for public travel. The law does not require that a highway be kept perfectly or absolutely safe for public use. In other words, ice on the surface of a highway is not a defect even though the highway because of it is not perfectly and absolutely safe, provided it can be said that the highway is reasonably safe for public travel.”

       We note that the defendant did not claim that Patrick’s response was admissible on the general ground that an adverse party’s out-of-court relevant admissions are admissible even if not inconsistent with her in-court testimony, as a general exception to the hearsay rule. See Tait & LaPlante, Connecticut Evidence (1984 Sup.) § 11.5. We thus confine our consideration of the ruling to the specific ground of admissibility claimed in the trial court. State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jimmy’s Auto Wrecking, Inc. v. Zoning Board of Appeals of the Town of Guilford et al.
    (3666)
    Dupont, C. J., Spallone and Bieluch, Js.
    Argued December 3
    decision released December 24, 1985

      James L. Radda, with whom, on the brief, was Richard Damiani, for the appellant (plaintiff).

      Andrew J. O’Neill, with whom, on the brief, was Richard J. Beatty, for the appellees (defendants).
   Per Curiam.

This appeal is governed by our holding in Shaw v. Planning Commission, 5 Conn. App. 520, 500 A.2d 338 (1985), where we reversed for the failure of the trial court to afford the plaintiff a hearing as mandated by statute.

There is error, the judgment is vacated and the case is remanded with instruction to the court to conduct a hearing as required by law.


text:
    Belle Camperland, Inc. v. Commissioner of Transportation
    (3541)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 5
    decision released December 31, 1985

      Joseph C. Morelli, with whom, on the brief, was Joseph Adinolfi, Jr., for the appellant (plaintiff).

      Robert T. Morin, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Per Curiam.

This is an appeal by the plaintiff from a judgment of a panel of three state trial referees in a condemnation action involving the taking by eminent domain of a parcel of property owned by the plaintiff.

The defendant filed a notice of condemnation and assessment of damages, pursuant to General Statutes § 13a-73 (b). Land, buildings and other improvements located on the land were taken. The defendant determined that the amount of compensation to be paid to the plaintiff was $838,000. The panel found that the fair market value was $903,750 as of the date of the taking, and awarded the plaintiff appraisal fees and costs.

The plaintiff’s appraiser testified that the fair market value for the land and improvements was $1,500,000. The defendant presented two appraisers, one of whom testified to a revised estimate of total fair market value of $726,400, and the other, to a total fair market value of $864,000. The defendant introduced into evidence deeds to a parcel of property, located to the north of the plaintiffs property, which was purchased in 1981 for $312,000. The trial court, in considering these deeds as evidence of a comparable sale, made adjustments to the purchase price for an increase in the market value of property between the date of purchase and the date the plaintiff’s property was taken, and for the fact that only a portion of that land could be used for building purposes. The trial court also viewed the plaintiff’s land and the buildings located on the property.

The plaintiff claims error (1) in the determination of the fair market value of the realty, and (2) in the allowance into evidence of the price paid for the parcel of property deemed comparable to the plaintiff’s property.

The plaintiff’s claim that the trial court erred in determining the value of the land and improvements merits a summary disposition. The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. See Practice Book § 3060D. The plaintiff argues that if the evidence is examined in its entirety, “to fix the value of the land . . . when the appellant’s appraiser clearly provided the better, fairer and more comprehensive examination of land values in Southington on the date of taking deprived the property owner of ‘just compensation’ and constituted an abuse of discretion. ...” The plaintiff would, in effect, have this court adopt the valuation of the condemned property most favorable to the plaintiff.

The trial court was presented with conflicting evidence in the form of different estimates of fair market value by three appraisers. Furthermore, the trial court examined the property in question. In determining the value of the property taken, the trial court is required to reach its own conclusions, taking into consideration the opinions of the appraisers, the claims of the parties and the trial court’s own general knowledge of the relevant factors in establishing value. The trial court is then responsible for determining the damages which result from the taking. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220-21, 435 A.2d 24 (1980). As part of this process, the trial court is free to accept or reject so much of the evidence offered as it finds necessary or appropriate. Id. 221. The determination of the trial court is reviewable only if it misapplies, disregards, or misinterprets any factor which it was bound to consider, none of which occurred in this case. E & F Realty Co. v. Commissioner of Transportation, 173 Conn. 247, 253, 377 A.2d 302 (1977); Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977); Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972).

The plaintiff’s other claim of error concerns the court’s consideration of a comparable sale of property which the plaintiff was using for its business operations. The court could consider relevant, competent evidence in its determination of value. The price of that other property is such evidence, particularly when it lies in close proximity to the condemned parcel of land.

There is no error.


author: Dupont, C. J.

text:
    Jacqueline L. Trubowitz v. Shelley H. Trubowitz
    (3755)
    Dupont, C. J., Borden and Spallone, Js.
    Argued November 5
    decision released December 31, 1985

      Wesley W. Horton, with whom was Alfred R. BelinJcie, for the appellant (plaintiff).

      Bernard Glazer, for the appellee (defendant).
   Dupont, C. J.

In this appeal from the judgment dissolving the marriage of the parties and from the judgment denying the plaintiff’s motion to open that judgment, the plaintiff wife claims an abuse of discretion by the state trial referee (1) in its determination of financial awards, and (2) in its application of federal tax law with regard to the payment of any capital gains tax incident to the transfer of realty as ordered.

The parties were married in 1952. During their marriage, they had seven children, one of whom was a minor as of the date of the dissolution of the marriage. The marriage was dissolved by a judgment dated July 19, 1984, although the date of the trial court’s memorandum of decision was July 18, 1984.

At the time of dissolution, the trial court found that the plaintiff was in good health and employable, and that she had participated significantly in the purchase and development of the real estate holdings of the parties, although the defendant had furnished most of the financing. It further found that both parties are well educated and that the defendant was in good health and had practiced dentistry for many years, with a gross income of approximately $220,000 in 1982.

The parties owned several parcels of real property. The trial court found that the marital home had a value, exclusive of mortgages and necessary repairs, of $412,000. A commercial property, exclusive of mortgages, was valued at $287,000. A share in a real estate venture described as Madonna Mountain was valued at $50,000. A commercial apartment and office building, housing the defendant’s dental practice and an apartment in which he lived, was found by the court to have a value of $803,000, exclusive of a $15,000 mortgage. That value was specifically based by the court on the testimony of an appraiser for the plaintiff. Whether that value could have been found, based on his testimony, is the grist of the first issue of this appeal.

The trial court found that in view of “the length of the marriage and the contributions of the parties, the real estate assets should be divided as nearly equally as possible.” Accordingly, the court ordered that the plaintiff would have title to all of the realty except that in which the defendant had his office. On the basis of the court’s valuations, the defendant would retain $788,000 worth of the real property and the plaintiff would have $849,000 worth as her share. The defendant was “ordered to pay any capital gains required” by the transfers.

The court divided the personal assets of the parties, giving each certain bank accounts, and each the personalty located in their respective dwellings. The court did not indicate any particular percentage division of these assets and did not individually value them. The sum of $200 per week was ordered as support for the minor child. The defendant was ordered to pay the sum of $15,000 toward the plaintiff’s counsel fees and, in lieu of periodic alimony, was ordered to pay to the plaintiff an additional cash sum of $75,000, payable in annual installments of $25,000 over a three year period.

I

The first claim of error by the plaintiff is that the trial court abused its discretion in its determination of the financial awards. This claim is divided into two parts, one relating to the allegedly erroneous valuation of the commercial apartment and office building which was awarded to the defendant, and the other relating to the division of the personalty of the parties.

The trial court found that the value of the particular real estate was $803,000 on the basis of the testimony of the plaintiff’s appraiser. The plaintiff claims that her expert testified that the property had a fair market value of $1,071,000, and further that $803,000 was the loan value based on that fair market value, rather than its fair market value. The defendant claims that the witness testified that those were his figures based on a prior appraisal made for a bank in connection with a mortgage application of the parties, but that, on cross-examination, he had conceded that $800,000 was the fair market value of the property. The plaintiff claims that the trial court could have found fair market value to be either $800,000, if it properly considered a letter from a bank as credible evidence, or $1,071,000, if it chose to accept the appraiser’s testimony, but claims that it was clearly erroneous in finding that fair market value was $803,000 when that finding was specifically based on the testimony of the plaintiff’s appraiser.

The plaintiff views the trial court’s valuation as an “Ehrenkranz” error, requiring this court to hold that the foundation for the trial court’s judgment is faulty, and therefore an abuse of its discretion, necessitating a rehearing on the division of the assets of the parties. See Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 479 A.2d 826 (1984).

The defendant claims that the difference between $803,000 and $800,000 “constitutes a transposition of similar and related figures of a de minimus nature,” not rising to the serious error in computation found to be present in EhrenkranzA The defendant further argues that this claimed error should not be considered on appeal because the plaintiff did not, during the course of the hearing on her motion to open the judgment, challenge the court’s finding as to the value of the realty, although she attacked almost every other finding of the trial court.

Before reaching the issue of whether the court abused its discretion, it must be determined whether that issue survived, for appeal purposes, after the denial of the plaintiff’s motion to open the judgment. Generally, this court is not required to consider claims unless they were distinctly raised at trial or arose subsequent to the trial, but may consider plain error in the interests of justice even if the error was not brought to the attention of the trial court. Practice Book § 3063. The section is often quoted but rarely invoked for the purpose of appellate consideration of issues not previously raised. Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983); Chaplin v. Balkus, 189 Conn. 445, 447, 456 A.2d 286 (1983); Valley v. Fazzina, 187 Conn. 423, 428-29, 446 A.2d 1068 (1982).

In the present case, once the memorandum of decision had been filed, the plaintiff was aware of any claimed Jack of logic in the trial court’s finding of fair market value. Although she sought to correct most of the findings of the trial court during the hearing on her motion to open the judgment, including the valuation of two of the parcels of real estate awarded to her, she sought no correction of the finding as to the value of the realty at issue in this appeal, and, in fact, objected when the defendant attempted to have the court correct its finding of $803,000. Nor did the plaintiff seek an articulation of the factual basis for the trial court’s finding of value pursuant to Practice Book § 3082. See Vaiuso v. Vaiuso, 2 Conn. App. 141, 477 A.2d 678 (1984).

There are no exceptional circumstances which would make it appropriate for this court to consider the plaintiff’s claim of error. See Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); Stoni v. Wasicki, 179 Conn. 372, 426 A.2d 774 (1979). The claimed error does not require a review in the interest of justice, particularly since the plaintiff sought to preclude the trial court from reviewing its finding of valuation. See Valley v. Fazzina, supra. It would be anomalous to permit a party to challenge, on appeal, the basis of a finding which that party sought to prevent the trial court from correcting. Since the court could have found the valuation to be $800,000, if not $803,000, the failure of this court to remand the case for a further hearing on the issue of the division of assets cannot be equated to a denial of justice.

The plaintiff also appeals from that portion of the trial court’s judgment which divided the personalty of the parties. The plaintiff claims that the award to her of less than 50 percent of these assets was an abuse of discretion because there was no good reason to treat them in a manner different from the real property and because the trial court may have taken into account the tuition payments for the minor child which were or will be made by the defendant.

In making its division of the personalty of the parties, the trial court was required to take into consideration the factors enumerated in General Statutes § 46b-81 (c). An examination of the memorandum of decision indicates that the trial court properly considered and weighed the factors set forth in the statute in determining the division of these assets. See McPhee v. McPhee, 186 Conn. 167, 170-71, 440 A.2d 274 (1982); Szilagyi v. Szilagyi, 3 Conn. App. 25, 28, 484 A.2d 469 (1984).

No statute requires a trial court to make an equal percentage division of all assets. There is often good reason to treat assets differently. Some assets, such as a business dependent upon the personal services of one party, or objects of art or personal furnishings, cannot be divided equally per item or in toto. One party or the other may have a particular interest in, or claim to, a particular asset, and a trial court is not hampered in making whatever distribution of them it chooses, as long as it does so in accordance with statutory guidelines. The trial court’s references to the payment of tuition and education expenses by the defendant did not constitute the improper consideration of a factor not specified by General Statutes § 46b-81 (c). Such statements merely provided the background of the case, and nothing indicates that those payments were a factor in the court’s award of the personalty of the parties.

The trial court could reasonably conclude that these assets should have been divided as ordered. See Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

II

The plaintiff claims as error that the trial court misapplied federal tax law regarding the determination of capital gains tax due to a recent change in the tax law which eliminated the treatment as taxable events of court ordered property transfers in marriage dissolutions. This change in the tax law went into effect on July 18,1984, one day before the entry of the judgment in this case. The change was brought to the trial court’s attention at the hearing on the motion to open the judgment held on November 11, 1984, at which time the trial court heard argument from both sides on the issue. Without specifically addressing the issue of the change in the tax law regarding capital gains, the trial court denied the motion to open.

During the trial of this case, federal tax law provided that a conveyance of property from one spouse to the other incident to a court ordered dissolution of marriage was generally a taxable event. See United States v. Davis, 370 U.S. 65, 82 S. Ct. 1190, 8 L. Ed. 2d 335 (1962). In Davis, the Supreme Court held that a transfer of appreciated property to a spouse or former spouse in exchange for the release of marital claims may result in the recognition of a capital gain to the transferor. Under Davis, a capital gains tax might be due if a court ordered transfer of all jointly owned real property, incident to a divorce (dissolution) action, resulted in the receipt by one spouse of less than one half of the realty, to the extent of the excess over one half of all of the realty received by the other spouse. Rev. Rul. 74-347, 1974-2 C.B. 26. The parties agree that, under the Davis rule, the maximum tax which would have been paid by the defendant was approximately $4000. Since the division of the jointly held realty was substantially equal, however, it is not likely that any tax would be due, even under Davis. There is no capital gains tax due under the present law in connection with the transfers to the plaintiff or the transfer by the plaintiff to the defendant.

The only significant difference to the plaintiff arising out of the amendment to the Internal Revenue Code is in her basis for the realty once it was transferred to her pursuant to the judgment. The plaintiff claims that because she cannot obtain the “substantially stepped up” basis for the realty which she would have had under the old law, she “may be liable for a large capital gains tax” at a future date. She is no more precise than that. Even if this is so, the same rule would apply to the defendant, and he too, upon a sale of the realty awarded to him, may, in the future, be liable for a larger capital gains tax than he would have been responsible for had the old law applied.

The trial court ordered the defendant “to pay any capital gains tax required by these transfers.” (Emphasis added.) The wording of such an order indicates that the trial court considered the pending changes in the tax law when it formulated its order requiring the defendant to pay the capital gains tax, if any. Furthermore, the trial court was certainly aware of the issue by the time of the hearing on the plaintiffs motion to open the judgment, when the questions of the payment of capital gains and the recent changes in the tax laws were argued by both parties. The court’s denial of that aspect of the motion to open indicates its intention that, if there were a capital gains tax to be paid, the defendant was to pay it. The cornerstone of its decision as to the allocation of real estate was not that such a tax would be due.

There is no error.

In this opinion the other judges concurred.

       The bank had offered a mortgage of $600,000 to the parties. The transcript reveals the following questions and answers on cross-examination of the plaintiff’s real estate appraiser: “Q. Then if we are using a loan value of seventy five percent and at six hundred thousand of the loan, then we have a fair market value of eight hundred thousand, isn’t that correct? A. Yes.”
      “Q. If the bank is only going to give six hundred thousand and not eight hundred thousand then the fair market value to a third person buyer is only eight hundred thousand, isn’t that correct? A. If that’s the maximum loan he can get, I would have to agree with that.”
      A fair reading of this testimony is that the witness did not concede that $800,000 was the fair market value of the real estate in his opinion, but that if a bank would give a mortgage of $600,000 and if a loan value is seventy five percent of fair market value, then the property would be worth $800,000.

       The claim of the plaintiff that an exhibit, the letter of the bank, could not have been considered by the trial court is without merit. The letter was introduced without objection and the trial court could have construed it, coupled with other evidence, as indicating that the realty had a fair market value of $800,000.

       After the court had denied the plaintiff’s motion to open the judgment, the defendant attempted to have the court correct “a typo” in order to change its valuation from $803,000 to $800,000. The court refused, stating that its notes indicated a value of $803,000.

       See footnote 3, supra.

       The motion to open the judgment had as its stated purpose the “effecting (of) certain changes in the Court’s Memorandum of Decision filed July 19, 1984.”

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The temporary regulations regarding the treatment of transfers of property between spouses incident to divorce specify the effective date of the amendment to § 1041 of the Internal Revenue Code. The regulations state that, in general, § 1041 applies to all transfers after July 18,1984. It does not apply, however, to transfers after July 18, 1984, pursuant to instruments in effect on or before July 18, 1984. There are two exceptions to this general rule. First, § 1041 will apply to transfers after July 18, 1984 under instruments that were in effect on or before July 18, 1984, if both spouses (or former spouses) elect to have § 1041 apply to such transfers. Second, § 1041 will apply to all transfers after December 31,1983, including transfers under instruments in effect on or before July 18,1984, if both spouses (or former spouses) elect to have § 1041 apply. See Reg. § 1.1041-IT, 1985 Stand. Fed. Tax Rep. (CCH) 14645BB. It is unclear whether the Internal Revenue Commissioner would treat the transfers ordered by the trial court as having occurred on July 18,1984, the date of the trial court’s memorandum of decision, or on July 19, 1984, the date of the judgment.


text:
    State of Connecticut v. Anita Wheeler
    (2999)
    Hull, Boeden and Daly, Js.
    Argued December 10
    decision released December 31, 1985

      Anita Wheeler, pro se, the appellant (defendant).

      John J. Nazzaro, special assistant state’s attorney, with whom, on the brief, were Andrew Wittstein and Carl Schuman, assistant state’s attorneys, and Joseph Burns, for the appellee (state).
   Per Curiam.

There is no error.


author: Spallone, J.

text:
    Mary E. Teris v. Shearson Hayden Stone, Inc., et al.
    (3657)
    Dupont, C. J., Spallone and Daly, Js.
    Argued November 6
    decision released December 31, 1985

      William S. Rogers, with whom was Kevin McCann, for the appellant (named defendant).

      Walter B. Schatz, for the appellee (plaintiff).
   Spallone, J.

The named defendant is appealing from a judgment in favor of the plaintiff after a trial to the court. The plaintiff brought the underlying action to recover damages she allegedly sustained as a result of the defendant’s breach of a contract between the parties.

The facts may be summarized as follows. As a brokerage firm, the defendant executed orders for customers in securities transactions. The plaintiff, sometime in 1965, began investing in securities with the defendant with whom she maintained a margin account. The plaintiff’s account was nondiscretionary in that it did not allow the defendant to execute any securities transactions in her account without her prior approval.

On October 13,1973, the plaintiff left for a vacation from which she returned on October 20,1973. During her absence, the defendant charged the plaintiff’s account for the purchase of certain options. The options were purchased on October 15 and October 18, 1973. The defendant charged a debit to the plaintiff’s account in the amount of $18,284.71 for these options, of which $497.21 represented commissions payable to the defendant. The defendant, following its customary procedure, mailed confirmations of these transactions to the plaintiff which she found among her mail upon her return from her vacation. The plaintiff had not authorized these purchases. Upon finding the confirmations on October 22,1973, she called the defendant’s office and asked to speak to its employee, Joseph Berner, who had been handling her account. Because Berner was not in the office, the plaintiff spoke to Henry Carulli who was then the defendant’s operations manager and administrative supervisor of brokers. The plaintiff notified Carulli that she had received confirmation of the option purchases of October 15 and October 18, of which she had no previous knowledge and which she had not authorized. Carulli indicated that he would look into the matter and that he would have Berner get back to her. Carulli checked the defendant’s records and determined that the transactions had been made and that the plaintiff’s account had indeed been charged for them. Carulli did not divest the plaintiffs account of the options nor did he return the plaintiffs phone call. He discussed the matter with Berner who called the plaintiff and told her that the price of the option would increase but otherwise ignored her protestations that she had not authorized these option transactions. The defendant took no subsequent action with regard to the options which ultimately expired and became valueless.

On October 12, 1979, the plaintiff commenced this action for damages sustained by her because of the defendant’s unauthorized purchases of options. The defendant answered and pleaded eleven special defenses. After a full trial, the court expressly rejected the special defenses as not having been proven and found for the plaintiff in the amount of $18,284.71, plus costs, but without interest.

The defendant’s claims of error may be classified into three areas. First, the defendant contests the sufficiency of the evidence to support the court’s findings that the defendant employer was liable for the acts of its employee and that the plaintiff had not ratified the purchases, and to support the court’s findings as to damages. Second, the defendant contends that the court erred in the method by which it measured damages. Third, the defendant contends that the court abused its discretion in finding the equitable defense of laches, waiver and estoppel inapplicable.

The first category of the defendant’s claims of error is, in essence, an attack upon the factual findings of the trial court. Whether Berner was an agent of the defendant and whether as agent, he was acting within the scope of his authority, were questions of fact to be determined by the trier; Cohen v. Meola, 184 Conn. 218, 220, 439 A.2d 966 (1981); as were the court’s findings that the transactions were neither authorized nor ratified by the plaintiff, and its findings as to the amount of the damages recoverable by the plaintiff. When the factual basis of the court’s decision is challenged, our function is restricted to determining whether the facts set forth in the memorandum of decision are supported by the evidence or whether the facts found are clearly erroneous in light of the evidence and the record as a whole. Pandolphe’s Auto Parts v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The memorandum of decision focuses on the actions of the defendant as carried out by its agents. Implicit in the court’s decision is a finding of the agency relationship itself. The court’s factual findings as to the unauthorized and unratified purchases of options and the award of damages are amply supported by the evidence. In this case, our examination of the evidence and the record as a whole discloses that the factual findings of the trial court are not clearly erroneous.

The defendant’s assertion that the measure of damages should be the cost of the options minus the amount that the plaintiff would have realized had she sold them within a reasonable time after discovery of the unauthorized purchase is without merit. The trial court found that the transactions were unauthorized and also found that they were never ratified by the plaintiff. The defendant’s argument that the plaintiff never ordered them to sell the option is as unpersuasive as it is ironic. In effect, the defendant is arguing that it was never authorized to dispose of the unauthorized purchases. The trial court’s conclusion that the damages resulting to the plaintiff were caused by the defendant’s actions was a question of fact which the court resolved in favor of the plaintiff. The amount of damages found by the court was ascertainable through a readily determined mathematical process, was fully supported by the evidence and compensated the plaintiff for her loss. See Vines v. Orchard Hills, Inc., 181 Conn. 501, 506-507, 435 A.2d 1022 (1980).

The defendant’s final claim, that the court abused its discretion in finding the equitable defenses of laches, waiver and estoppel inapplicable, is without foundation in law or in fact.

This action, although brought some time after the defendant’s conduct complained of by the plaintiff, was brought within the time parameters specified in the applicable statute of limitations. The trial court expressly rejected the equitable defenses raised by the defendant and stated it could find no facts to support those defenses. The court’s finding that no prejudice befell the defendant must be sustained where, based on the evidence and the circumstances of the case, such findings were not clearly erroneous.

We conclude that there was ample evidence to support the trial court’s factual findings as to liability and that its award of damages was properly assessed both as to the method by which the damages were arrived at and in the amount.

There is no error.

In this opinion the other judges concurred.

       The named defendant, Shearson Hayden Stone, Inc., is the successor corporation of the defendant Shearson Hammill & Co. Unless specifically noted, references to the “defendant” refer to both defendants.

       This employee, a broker, left the defendant’s employ sometime prior to the trial and was not presented as a witness at the trial.


text:
    Leonard J. Roy, Administrator (Estate of Denise Roy) v. James J. Michaud et al.
    (3446)
    Dupont, C. J., Borden and Spallone, Js.

      Argued November 7
    decision released December 31, 1985

      Herbert Watstein, with whom, on the brief, was Julius Watstein, for the appellant (plaintiff).

      Philip J. O’Connor, with whom, on the brief, was Stephen M. Riley, for the appellee (defendant commissioner of transportation).
   Borden, J.

The plaintiff, the administrator of the estate of Denise Roy, appeals from a judgment in favor of the defendant commissioner of transportation. The principal issue in the case is whether the plaintiff produced sufficient evidence to permit a finding that the lack of a guardrail on the right hand side of a highway was the sole proximate cause of the death of Roy. We hold that the evidence was insufficient, and find no error.

Roy, a passenger in a motor vehicle operated by James J. Michaud, died when the vehicle left the traveled portion of interstate highway 95 and struck a rock ledge in close proximity to the shoulder of the highway. The plaintiff sued the commissioner pursuant to General Statutes § 13a-144, claiming that the commissioner’s failure to remove the rock ledge or to erect a guardrail between the rock ledge and the shoulder of the highway was the sole proximate cause of the death.

The trial court directed a verdict for the commissioner and denied the plaintiffs motion to set aside the verdict. The first ground of the court’s rulings was that, despite the plaintiff’s argument to the contrary, the claimed highway defect constituted a design defect as a matter of law, and that the evidence was insufficient to establish that the design rendered the highway out of repair from its beginning. See D’Arcy v. Shugrue, 5 Conn. App. 12, 15, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). The second ground was that the plaintiff failed to remove from the realm of speculation the issue of whether Michaud was free from negligence, and, thus, the plaintiff could not, as a matter of law, establish that the claimed defect in the highway was the sole proximate cause of the death.

On appeal, the plaintiff challenges the trial court’s ruling on the sufficiency of his evidence as to due care on the part of Michaud. He also claims error in the court’s ruling that the claimed defect was a design defect, and in an evidentiary ruling which relates only to the issue of whether the highway was defective and not to the sole proximate cause issue. We find dispositive the commissioner’s claim that the plaintiff failed to produce sufficient evidence to permit the jury reasonably to find Michaud free from negligence. We therefore find no error in the direction of the verdict and in the refusal to set it aside, and do not consider the plaintiff’s other claims.

The commissioner’s liability under the statute “can only be imposed if the defect in the highway is the sole proximate cause of the plaintiff’s injuries and if those injuries are not also proximately caused by the negligence of ... a third person.” D’Arcy v. Shugrue, supra, 14. Thus, the plaintiff was required to establish not only that the highway was defective, but also that Michaud was free from negligence. Bartram v. Sharon, 71 Conn. 686, 696, 43 A. 143 (1899).

“On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff.” (Citations omitted.) Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). That evidence is as follows: At the area in question the eastbound traveled portion of interstate 95 consists of two lanes. Adjacent to the southerly, or right hand, boundary of the right hand lane is a paved shoulder eight feet wide. Adjacent to the southerly, or right hand, boundary of the shoulder is a curb, and adjacent to the curb is a grassy rising embankment out of which jut three rock ledges or outcroppings. Two of these ledges, namely, the middle and the most easterly, are about twenty feet apart and are approximately seven feet from the curb at their most prominent points. There was no guardrail between the road and the rock ledges. There was a guardrail which began just easterly of the third of the rock ledges, and which ran further easterly.

Michaud, the driver of the motor vehicle in which Roy was a passenger, did not testify. The only eyewitness was Maria Demers. She testified as follows: At about 6 a.m. on May 24, 1975, she was driving westerly on interstate 95 when she saw the Michaud vehicle traveling easterly in the right hand lane at about fifty-five miles per hour, which was within the speed limit. There was a station wagon about three car lengths ahead of the Michaud vehicle and a pickup truck about the same distance behind it, both in the right hand lane. The Michaud vehicle drifted off the road, and hit the two rock ledges described, one after the other. Before drifting off the road, the Michaud vehicle did not make any sharp turn. There was fog which had lifted, so that it did not affect visibility.

Richard Gilbert testified as follows: He was a passenger in a pickup truck which the Michaud vehicle passed on the Baldwin Bridge prior to the accident. He estimated the bridge to be about one quarter of a mile or more from the point of the accident. When the Michaud vehicle passed his vehicle on the bridge it was traveling at about fifty miles per hour, and it stayed in the passing lane for about five car lengths before returning to the right hand lane. He next saw the Michaud vehicle on its side at the place of the accident.

Alexander Haveleck, the state police trooper who investigated the accident, put the point of the accident at about one mile east of the bridge. He found no skid marks left by the Michaud vehicle, no foreign objects or potholes in the highway, and no paint or other indication on the Michaud vehicle of collision with another vehicle. He discovered no mechanical defects in the Michaud vehicle.

The issue posed by the plaintiffs claim of evidentiary sufficiency is whether the evidence tending to show that Michaud was free from negligence “falls within the sphere of those cases upholding such a factual inference on the basis of admittedly meager circumstantial evidence; see, e.g., Blados v. Blados, 151 Conn. 391, 198 A.2d 213 (1964); White v. Herbst, 128 Conn. 659, 25 A.2d 68 (1942); Meyer v. Barnes, 2 Conn. App. 485, 488, 479 A.2d 1236 (1984); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 200-201, 470 A.2d 705 (1984); or those cases precluding such a finding as based on speculation or conjecture. See, e.g., Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971); Chasse v. Albert, 147 Conn. 680, 166 A.2d 148 (1960); Palmieri v. Macero, 146 Conn. 705, 155 A.2d 750 (1959); Latham v. Hankey, 117 Conn. 5, 166 A.2d 400 (1933).” Patrick v. Burns, 5 Conn. App. 663, 667-68, 502 A.2d 432 (1985).

The principle that a plaintiff must produce enough evidence to justify a finding of negligence on the part of another applies equally when his burden is, instead, to establish due care on the part of another. In both instances, he must remove the issue from the realm of speculation and lay a sufficient evidentiary foundation for a finding that the fact in issue is more probable than not. “When the circumstances point as strongly to the absence as to the existence of due care, or point in neither direction, there is no basis for a finding of due care.” Burke v. West Hartford, 147 Conn. 149, 152, 157 A.2d 757 (1960). The plaintiff’s evidence in this case fails to cross the evidentiary threshold of speculation.

There is insufficient evidence in this case upon which to base a finding that what caused the Michaud vehicle to leave the traveled portion of the highway was some factor not related to negligence of Michaud. Michaud did not testify. The only evidence relating to the exercise of due care by him was that he was traveling within the speed limit. Under the circumstances of this case, however, that alone is insufficient as a basis for a finding that he was not negligent in drifting off the highway, going across the shoulder, climbing the seven foot embankment and colliding with the rock ledges.

There was no evidence of a defect within the traveled portion of the highway, of any collision with another vehicle, or of any sudden happening which could have caused such an occurrence. Nor was there evidence of any defect in Michaud’s vehicle, or of any sudden illness or disability overcoming him. Given this evidence, the jury had no more basis to find that Michaud’s vehicle left the highway because of something beyond his control than to find that he simply failed to keep a proper lookout or negligently permitted himself to get drowsy and fall asleep at the wheel. On this state of the evidence, the circumstances point with equal strength to the absence as to the existence of due care; Burke v. West Hartford, supra; and “the fact-finder [would have been] left to speculate about the myriad causes of loss of control of a motor vehicle.” Patrick v. Burns, supra, 668.

There is no error.

In this opinion the other judges concurred.