Williams v. State

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MICHELLE WILLIAMS v. STATE OF CONNECTICUT
(AC 40294)
Prescott, Bright and Bishop, Js.

Syllabus

The plaintiff sought to recover damages from the defendant state of Connecti-
cut for personal injuries she sustained as a result of an accident involving
a motor vehicle owned and insured by the defendant. At the time of
the accident, an employee of the Department of Transportation, L, was
operating a department maintenance truck on the highway as part of a
crew performing pothole repair work. The plaintiff was cresting a hill
when the vehicle in front of her swerved to avoid colliding with the
truck operated by L, who at the time was following another state vehicle
that was performing the actual repairs. Thereafter, the plaintiff likewise
swerved to avoid the truck operated by L, but instead hit a guardrail,
became airborne, and then struck L’s truck. The plaintiff claimed that
her injuries were caused by the negligence of L and that the defendant
was liable pursuant to the statute (§ 52-556) that permits an action
against the state for injuries caused by the negligence of any state
employee when operating a motor vehicle owned and insured by the
state. In her complaint, the plaintiff alleged that L was negligent in a
number of ways, including, inter alia, by failing to provide adequate
warning signs to alert drivers of the presence of the department trucks
on the highway, and failing to follow department rules, procedures and
policies for operating the vehicle, diverting traffic and providing warning
signs. Subsequently, the defendant filed a special defense asserting that
the plaintiff’s alleged injuries were proximately caused by her own
negligence. Following a trial to the court, the court rendered judgment
in favor of the defendant, from which the plaintiff appealed to this
court. Held:
1. The plaintiff could not prevail on her claim that the trial court, in making
its ruling, framed the issue of the case too narrowly and improperly
failed to consider all of the instances of L’s negligence alleged in the
complaint; although the trial court’s memorandum of decision focused
almost entirely on whether warning signs had been in place at the
time of the accident, the record was devoid of anything to support the
plaintiff’s assertion that the trial court failed to consider the forms of
L’s negligence alleged in the complaint that were not dependent on the
presence of warning signs, as the court’s overall conclusion that the
plaintiff had failed to satisfy her burden of proving that her injuries
were more likely than not caused by L’s negligence, which largely was
based on its credibility determinations of the witnesses, was not
expressly limited to those instances of negligence alleged in the com-
plaint that asserted a lack of warning signs, and reflected the trial
court’s general determination that the defendant’s version of the facts
surrounding the accident was more credible than that presented by the
plaintiff, and to the extent that the court’s memorandum of decision was
ambiguous, the plaintiff failed to seek clarification or ask for reargument,
and, in the absence of any evidence to the contrary, this court presumed
that the trial court disposed of the matter properly.
2. This court declined to review the plaintiff’s claim that the trial court
improperly failed to consider certain statutes, regulations, and highway
safety standards, the plaintiff having failed to preserve the claim for
appellate review by raising it before the trial court: contrary to the
plaintiff’s contention that she had properly preserved this issue by alleg-
ing in her complaint that L had failed to follow department rules, policies
and procedures, neither the plaintiff’s complaint nor her posttrial brief
cited to any particular statute or regulation with which L purportedly
failed to comply, and although the plaintiff made passing reference to
a certain statute (§ 14-298) and state regulation (§ 14-298-800) during a
pretrial colloquy with the court, she did not offer any evidence or testi-
mony pertaining to any particular statute or regulation during trial;
moreover, although the plaintiff initially had sought, over the defendant’s
objection, to premark as exhibits certain excerpts of certain highway
safety standards, of which the trial court could not take judicial notice,
the trial court deferred ruling on that request, and the plaintiff did not
seek to introduce those excerpts into evidence at trial, did not question
any witness regarding those standards, and failed to refer to those
standards in her posttrial brief.
Argued November 27, 2018—officially released April 9, 2019

Procedural History

Action to recover damages for the defendant’s alleged
negligence, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Elgo, J.;
judgment for the defendant, from which the plaintiff
appealed to this court. Affirmed.
Austin Berescik-Johns, with whom was David V.
DeRosa, for the appellant (plaintiff).
Edward P. Brady, with whom, on the brief, was Cath-
erine M. Blair, for the appellee (defendant).
Opinion

PRESCOTT, J. The plaintiff, Michelle Williams,
appeals, following a bench trial, from the judgment
rendered on her complaint in favor of the defendant,
the State of Connecticut. In her one count complaint,
the plaintiff sought monetary damages for personal
injuries she had sustained as a result of the alleged
negligence of an employee of the Department of Trans-
portation (department) while operating a state owned
vehicle. See General Statutes § 52-556.1 On appeal, the
plaintiff claims that the trial court improperly (1) failed
to consider all of the specifications of negligence that
she alleged in her complaint and (2) failed to consider
applicable statutes and highway safety regulations gov-
erning the actions of the department. We disagree with
the plaintiff’s first claim and conclude that the second
claim was not preserved for appellate review. Accord-
ingly, we affirm the judgment of the court.
The following facts found by the court and procedural
history are relevant to our resolution of the plaintiff’s
appeal. ‘‘On January 24, 2012, around 10:40 a.m., the
plaintiff was driving north on Route 15 near exit 38 [in
Norwalk]. As she crested near the top of a hill, following
one car length behind the vehicle ahead of her in the
left lane, the vehicle before her swerved to avoid collid-
ing with a [department] crash unit maintenance truck
driven by [department employee Terrence] Lynch,
which was . . . traveling slowly in the . . . left-hand
lane. Lynch had been part of a crew of [department]
workers who were performing pothole repair work on
the highway and was the second of two crash units
following the vehicle doing the actual repairs. John
McNamara, a witness to the accident, was traveling
southbound on the right-hand lane of Route 15 and
ascending the crest from the other direction when he
saw the collision. He observed [the] plaintiff’s car
swerve to avoid hitting Lynch’s truck, then hit the guard-
rail and [become] airborne, spinning 180 degrees when
it landed and struck Lynch’s truck. Trooper Carlo Mara-
ndola arrived at the scene and noted damage to the
respective vehicles as well as 170 feet of tire marks,
which were made by the plaintiff’s vehicle.’’
The plaintiff commenced the underlying negligence
action on January 6, 2014. She alleged that she had
sustained serious personal injuries, some permanent in
nature, as a result of the January 24, 2012 incident, and
that the direct and proximate cause of her injuries was
the negligence and carelessness of Lynch, who was a
state employee operating a motor vehicle owned and
insured by the state. The plaintiff alleged that Lynch
was negligent in one or more of the following ways:
‘‘a. he made unsafe movements upon the highway
incidental to the operation of a state owned motor
vehicle;
‘‘b. he caused [the] defendant’s vehicle to obstruct
moving traffic on the highway making it unsafe for
other motorists;
‘‘c. he failed to follow established safety procedures
and/or standards for diverting traffic on a highway while
operating a state owned motor vehicle;
‘‘d. he failed to take reasonable efforts to warn motor-
ists of the presence of [the] defendant’s vehicle in the
travel portion of the highway;
‘‘e. he was inattentive and failed to keep a proper
lookout for other approaching motor vehicles on the
highway;
‘‘f. he unreasonably entered the left bound travel lane
from the highway shoulder and/or median grass area
where such movement could not be done with reason-
able safety;
‘‘g. he failed to follow [department] rules, policy or
procedures in that a [department] truck was in the
highway without adequate flagman and/or signs to warn
of its presence;
‘‘h. he failed to provide adequate signs or warnings
to properly alert drivers of the presence of the [depart-
ment] truck;
‘‘i. he operated the [department] truck at a low rate
of speed in the fast travel lane in an area over a hill
crest without adequate warning to alert drivers coming
over the hill crest creating a hazardous situation;
‘‘j. he failed to keep the [department] truck under
proper and reasonable control; and
‘‘k. he positioned the [department] truck in a danger-
ous location on the highway.’’
The defendant filed an answer denying all of the
allegations of negligence and asserting a special defense
of comparative negligence. The plaintiff submitted a
reply denying all allegations in the special defense.
The matter was tried to the court, Elgo, J., on August
10, 2016. The court heard testimony from McNamara,
Marandola, Lynch, and the plaintiff. After the parties
submitted posttrial briefs, the court issued its memoran-
dum of decision finding in favor of the defendant on
the plaintiff’s complaint.
In its memorandum of decision, the court discussed
in detail one primary issue in dispute, namely, whether
the department had placed warning signs on the high-
way and on the maintenance truck operated by Lynch
in order to alert oncoming traffic of the road repair.
The court credited the testimony of Lynch that warning
signs were present. The court also credited photo-
graphic evidence showing that Lynch’s truck had an
illuminated arrow redirecting traffic around the mainte-
nance vehicles. The court did not credit the testimony
of the plaintiff and McNamara that there had been no
signs warning of the road maintenance on either the
highway or on the defendant’s vehicle. The court
observed that the accident had occurred on the north-
bound side of the parkway and that McNamara had
been driving on the opposite, southbound side and had
exited the parkway prior to where any warning signs
would have been posted. The court found that ‘‘it was
far more likely that McNamara saw the dramatic acci-
dent in the seconds it took to pass by it, then got off
the highway and called 911 with little ability or occasion
to see or identify construction signs meant for north-
bound traffic.’’ The court further noted the plaintiff’s
admission that she had been driving one car length
behind a sports utility vehicle (SUV) with dark tinted
windows, which prevented her from seeing the traffic
in front of the SUV, meaning that it was more likely
than not that she would have been unable to observe
the warning signs.
The court did not individually discuss each of the
plaintiff’s separate specifications of negligence as set
forth in the complaint, but generally concluded that
the plaintiff had failed to satisfy her burden of proof.
Specifically, the court concluded: ‘‘In a civil case, the
plaintiff has the burden of proof by a preponderance
of the evidence. . . . In order to satisfy her burden,
the plaintiff must demonstrate that the defendant was,
more likely than not, negligent in one or more ways
alleged in her complaint. . . . This court, however,
cannot find the plaintiff’s version of the accident more
credible than the defendant’s version of the facts.
Because this court simply cannot resolve the disputed
issues in favor of the plaintiff, it enters a verdict in
favor of the defendant.’’ (Citations omitted; emphasis
added.) This appeal followed.
I
The plaintiff claims that the court too narrowly
framed the issue of the case, which resulted in an incom-
plete ruling that failed to consider all specifications of
negligence alleged in the complaint. More specifically,
the plaintiff argues that the court’s written memoran-
dum of decision focuses almost exclusively on the con-
tested issue regarding whether warning signs were in
place at the time of the accident. According to the
plaintiff, however, she had alleged other specifications
of negligence in her complaint the proof of which were
not dependent on the presence of warning signs. The
defendant responds that the plain language of the
court’s decision indicates that it considered all of the
plaintiff’s claims of negligence and simply concluded
that the plaintiff had failed to meet her burden of proof
with respect to all disputed issues of negligence, not
just whether adequate warning signs existed in the
vicinity of the crash. On the basis of the record pre-
sented, we agree with the defendant.
Whether the court considered and decided all of the
plaintiff’s specifications of negligence requires us to
construe the court’s judgment as set forth in its memo-
randum of decision. ‘‘Because [t]he construction of a
judgment is a question of law for the court . . . our
review . . . is plenary.’’ (Citation omitted; internal
quotation marks omitted.) Chapman Lumber, Inc. v.
Tager, 288 Conn. 69, 91, 952 A.2d 1 (2008). ‘‘As a general
rule, judgments are to be construed in the same fashion
as other written instruments. . . . The determinative
factor is the intention of the court as gathered from all
parts of the judgment. . . . The interpretation of a
judgment may involve the circumstances surrounding
the making of the judgment. . . . Effect must be given
to that which is clearly implied as well as to that which
is expressed. . . . The judgment should admit of a con-
sistent construction as a whole.’’ (Emphasis added;
internal quotation marks omitted.) Id., 91–92. ‘‘In Con-
necticut, our appellate courts do not presume error on
the part of the trial court. . . . Rather, the burden rests
with the appellant to demonstrate reversible error.’’
(Internal quotation marks omitted.) Pettiford v. State,
179 Conn. App. 246, 260–61, 178 A.3d 1126, cert. denied,
328 Conn. 919, 180 A.3d 964 (2018).
Here, there is nothing in the record before us that
supports the plaintiff’s assertion that the trial court, in
finding in favor of the defendant, failed to consider
all of the specifications of negligence alleged in the
complaint. Although the plaintiff is correct that the
majority of the court’s analysis focused on resolving
the dispute over whether warning signs were present
at the time of the accident, we also must look to the
remainder of the court’s decision, including the court’s
overall conclusion.
The court clearly indicated that the plaintiff was enti-
tled to prevail if she demonstrated negligence ‘‘in one
or more ways alleged in her complaint.’’ This suggests
that the court understood its duty to consider all aspects
of the plaintiff’s negligence claim. The trial court also
concluded, largely on the basis of its determination
regarding the credibility of the witnesses, that the evi-
dence presented by the plaintiff was insufficient to sus-
tain her burden of convincing the court that her injuries
were more likely than not caused by the negligence
of the defendant. This court will not revisit credibility
determinations on appeal; see Somers v. Chan, 110
Conn. App. 511, 530, 955 A.2d 667 (2008); nor can we
substitute our own conclusion regarding the weight of
the evidence for that of the fact finder. See Kaplan v.
Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The
court’s overall conclusion that the plaintiff had failed
to satisfy her burden of proving negligence on the part
of the defendant was in no way expressly limited only
to those specifications of negligence that relied on alle-
gations regarding a lack of warning signage. Rather,
the court concluded more generally that it found the
defendant’s version of the facts surrounding the acci-
dent more credible than that presented by the plaintiff.
That conclusion reasonably may be viewed as per-
taining not only to the allegations of negligence related
to the existence of warning signs but also to other
specifications of negligence, including that Lynch had
been operating his vehicle in an unreasonable fashion
or had failed to keep a proper lookout for
approaching traffic.
Reading the memorandum of decision as a whole,
we simply are not persuaded that the court either too
narrowly framed the issues presented by the parties or
that it failed to consider all forms of negligence alleged
by the plaintiff in her complaint. To the extent that
the court’s memorandum of decision is ambiguous, the
plaintiff failed to seek clarification or ask for reargu-
ment, and, in the absence of any evidence to the con-
trary, we will presume that the court disposed of the
matter properly. Because the plaintiff has failed to dem-
onstrate that the court’s judgment in favor of the defen-
dant was legally incomplete, we reject the plaintiff’s
claim.
II
The plaintiff also claims that, in reaching its decision,
the court improperly failed to consider applicable stat-
utes, highway safety regulations, and standards govern-
ing the actions of the department. Specifically, the
plaintiff claims that she ‘‘alleged in her complaint, and
at trial before the court, that the defendant’s actions
prior to the . . . collision violated applicable Connecti-
cut statutes, regulations, and safety procedures,’’ and
that she ‘‘presented evidence at trial to prove this
claim.’’ The defendant argues that the safety regulations
and statutes relied on by the plaintiff in support of this
claim on appeal were never pleaded or offered into
evidence at trial and, therefore, this claim is not prop-
erly preserved for appellate review. Again, we agree
with the defendant.
The following procedural history is relevant to our
disposition of this claim. At the start of the trial, the
court asked the parties whether there was anything
preliminarily that the court needed to address. The
plaintiff indicated that ‘‘[w]e have some regulations,
Your Honor, that we have to talk about.’’ The plaintiff
explained: ‘‘So [General Statutes §] 14-298, Office of
State Traffic Administration statute empowers . . .
the Department of Transportation to prepare or to—to
adopt regulations. And then there’s § 14-298-800 [of the
Regulations of Connecticut State Agencies] . . . .2 [It
is] a Manual on Uniform Traffic Control [Devices]
[MUTCD], 2009 edition. I have excerpts that I’m going to
use from that edition. I brought the whole 2009 edition
in with me today if counsel wanted to look at it, but I
have excerpts. It deals with a mobile operation on a
multilane road diagram that is one of their standard[s]
and then some signs and I just wanted the court to take
judicial notice of that.’’ (Footnote added.)
The defendant objected, arguing as follows: ‘‘Prelimi-
narily, counsel wants to introduce as a full exhibit,
statutes. I think Your Honor—if a statute is relevant,
Your Honor . . . has the ability, obviously, to review
it and address it as necessary. So I don’t think a statute
has to be marked as a full exhibit, number one. Second-
arily, Your Honor, there are certain regulations that I
believe counsel wants to mark as full exhibits. Again,
same—my position is the same on that. And, further,
the relevancy of certain regulations may or may not
come into issue. So until there is a foundation laid for
the proper admissibility of a particular regulation, I
object to it being premarked as a full exhibit. . . . And
then last, Your Honor, as counsel referenced, there are
certain exhibits I believe counsel wants to offer from
the [MUTCD]. It’s an engineering manual that engineers
use in, my understanding is, designing and building of
roads, highways, et cetera, and I would submit, Your
Honor, that all that is not admissible on several grounds.
One is no foundation. Number two, there has been no
disclosure of any expert witness by the plaintiff in this
matter relative to this particular issue, engineering stan-
dards, for anything having to do with liability for that
matter.’’
The court agreed with the defendant that it was not
necessary for copies of Connecticut statutes and regula-
tions to be marked into evidence, as these may be judi-
cially noticed by the court. See, e.g., General Statutes
§ 52-163. The court initially indicated that it was inclined
to agree with the defendant that the plaintiff needed to
lay some foundation for admitting the MUTCD into
evidence. The plaintiff responded that she did not
believe an expert was necessary but that she had a
witness through whom she would seek to admit the
MUTCD. The court stated: ‘‘All right. Why don’t we wait
until then? All right? And then we’ll find out what kind
of foundation you lay and we can take a look at it then.’’
In support of her claim that the court failed to prop-
erly consider applicable statutes, regulations, and the
MUTCD, and in responding to the defendant’s argument
that this claim was not raised to the trial court and thus
not properly preserved for appellate review, the plaintiff
directs us to paragraphs (c) and (g) of her specifications
of negligence. Those paragraphs alleged that Lynch had
‘‘failed to follow established safety procedures and/or
standards for diverting traffic on a highway while
operating a state owned motor vehicle’’ and ‘‘failed to
follow [department] rules, policy or procedures in that
a [department] truck was in the highway without ade-
quate flagman and/or signs to warn of its presence.’’
On the basis of the record before us, however, we are
not convinced that the plaintiff properly preserved for
appellate review her claim that the court improperly
failed to consider relevant state statutes, regulations or
the MUTCD.
First, with respect to the court’s alleged failure to
consider relevant statutes, the plaintiff alleged in her
complaint that Lynch failed to follow department rules
and policies, as well as safety procedures or standards,
but she never alleged a violation of any particular state
statute. On appeal, the plaintiff identifies General Stat-
utes § 14-298 as the statute that the court failed to con-
sider. That statute, however, was not cited in the
complaint or referred to in the plaintiff’s posttrial brief.
Furthermore, although the plaintiff mentioned § 14-298
in a pretrial colloquy with the court, she did so only to
indicate that § 14-298 was the statutory basis for the
promulgation of a department regulation adopting
the MUTCD.
With respect to highway safety regulations, we first
note that none of the specifications of negligence,
including those specifically relied on by the plaintiff,
alleges a failure to comply with any particular regula-
tion, or even contain the word ‘‘regulation.’’ Second,
although the plaintiff made brief reference to § 14-298-
800 of the Regulations of Connecticut State Agencies
in a pretrial colloquy regarding the marking of exhibits,
the plaintiff made no further mention of § 14-298-800
or any other regulation in her presentation of evidence.
After both sides rested, the court asked the parties
whether they would like to submit posttrial briefs. The
court indicated that posttrial briefs ‘‘might be helpful,
especially if you’re going to be citing regulations . . .
that you might think are relevant.’’ Counsel for the
defendant responded: ‘‘Well, Your Honor, I have some
concern, based upon what you just commented, about
the briefs mentioning . . . regulations. There’s no reg-
ulations that have come into evidence; there’s been no
regulations mentioned on the record. Clearly, I think
counsel can argue statutes because that’s been pled.
. . . The complaint does not contain any allegations
of any violation of any regulations, so I’m just a little
concerned . . . in that regard.’’ The plaintiff made no
references to any regulations in her posttrial brief.
Finally, as to the MUTCD, although the plaintiff
sought the court’s permission prior to trial to premark,
presumably as full exhibits, excerpts taken from the
MUTCD, the defendant objected, arguing that some
foundation would need to be laid as to their admissibil-
ity, and that an expert witness might be necessary for
that purpose given the technical nature of the MUTCD.
The court deferred ruling on the admissibility of the
MUTCD, indicating it would do so if the plaintiff sought
to admit the excerpts at trial. The plaintiff, however,
never sought to introduce the MUTCD or excerpts into
evidence during trial, nor did she question any witness
about the MUTCD. Even if the trial court had taken
judicial notice of § 14-298-800, that regulation only
refers to the MUTCD. It does not contain the contents
of the manual, of which the court could not take judicial
notice. The plaintiff did not refer to the MUTCD in her
posttrial brief.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. We
repeatedly have held that [a] party cannot present a
case to the trial court on one theory and then seek
appellate relief on a different one . . . . [A]n appellate
court is under no obligation to consider a claim that is
not distinctly raised at the trial level. . . . [B]ecause
our review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.
. . . The requirement that [a] claim be raised distinctly
means that it must be so stated as to bring to the atten-
tion of the court the precise matter on which its decision
is being asked.’’ (Citations omitted; emphasis omitted;
footnote omitted; internal quotation marks omitted.)
White v. Mazda Motor of America, Inc., 313 Conn. 610,
619–20, 99 A.3d 1079 (2014).
Having thoroughly reviewed the pleadings, the trial
transcript, and the parties’ posttrial briefs, we conclude
that the plaintiff’s claim that the court failed to consider
relevant statutes, department regulations, and the
MUTCD is not preserved for appellate review because
the plaintiff’s arguments never properly were raised to
or considered by the trial court. There were no refer-
ences to any particular statute, regulation, or the
MUTCD in the plaintiff’s complaint. Although the court
indicated its willingness to consider the relevance of
the MUTCD at the time of trial, the plaintiff never sought
to admit the manual or excerpts from it into evidence
and did not offer testimony pertaining to any particular
statute, regulation or the MUTCD during trial. Further-
more, the plaintiff made no reference to regulations or
to the MUTCD in her posttrial brief. We cannot review
the court’s purported failure to consider arguments that
were never properly before it. Accordingly, we decline
to entertain the plaintiff’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-556 provides: ‘‘Any person injured in person or
property through the negligence of any state official or employee when
operating a motor vehicle owned and insured by the state against personal
injuries or property damage shall have a right of action against the state to
recover damages for such injury.’’
2
Section 14-298-900 of the Regulations of Connecticut State Agencies
provides in relevant part: ‘‘(a) All temporary traffic control devices used on
road or street construction, maintenance work, or for incident management,
shall be of the type approved by the Office of the State Traffic Administration
and shall be in compliance with the provisions set forth in 23 CFR 655.603.
‘‘(b) Such devices shall conform to the standards set forth in the following
publications as applicable, except as provided otherwise in sections 14-298-
500 to 14-298-900, inclusive, of the Regulations of Connecticut State
Agencies:
‘‘(1) The 2009 edition of the ‘Manual on Uniform Traffic Control Devices
for Streets and Highways’ (MUTCD) approved by the Federal Highway
Administration . . . .’’