Jose Martinez Murcia v. Timothy Monahan et al. (2010)

MEMORANDUM OF DECISION

The captioned cases were tried to the court, subject to a written agreement of counsel the existence of which but not the contents were disclosed to this judge, over several days ending on November 24, 2010.   The court appreciates the expertise and cooperation of counsel in presenting this important case.   The issues were clearly identified and fully explored during the trial.   Counsel expertly and ardently advocated for their respective clients in every stage of the case including the pleadings, discovery and trial.

The parties submitted the issues of legal liability, causation and, if necessary, damages to the court for determination.   The parties submitted substantial testimonial and documentary evidence, including voluminous photographs and accident reconstruction materials to supplement the parties' expert witness testimony, as well as deposition transcripts of out of state and out of country witnesses.

On August 12, 2007, a Sunday, between 9:00-9:30 a.m. both the vehicles occupied by the plaintiffs, Jose Arturo Martinez Murcia-the driver, hereinafter “JMM,” and his father-a right front seat passenger, Jose Valentin Martinez Velazquez (who died as a consequence of the motor vehicle accident underlying this case) who appears in this litigation via Jose Arturo Martinez Murcia, Administrator of the Estate of Jose Valentin Martinez Velasquez, hereinafter “JMM Adm.,” and the defendant Timothy Monahan-the driver, hereinafter “TM,” were traveling on a public highway known as Interstate 91 in a southerly direction in the Town of North Haven, CT. The defendant Barbara Monahan, hereinafter “BM,” Timothy's mother and the owner of the car TM operated at the time of the subject collision, is claimed to be vicariously liable for any actionable negligence by her son pursuant to Connecticut's “family car doctrine” as codified in CGS 52-182.¹  Defense counsel conceded that if TM was found negligent, then BM was vicariously liable for such negligence by operation of the aforementioned statute.

JMM was operating a 1990 Toyota 4 Runner, SUV, in a southerly direction in the south bound lanes of I-91, his later father was a right front seat passenger.   TM was operating a 1998 Subaru Legacy automobile, owned by BM, in a southerly direction in the south bound lane of I-91 in the same area as was the plaintiffs' vehicle.

On August 12, 2007, between 9:00-9:30 a.m., in North Haven CT, the weather was clear and dry, there were four southbound lanes of travel in the area of the interstate highway where the accident that gives rise to the captioned claims took place.   In addition to the vehicles operated by JMM and TM, there were a number of other southbound vehicles in the immediate vicinity of this collision.

The evidence established that the Martinez Murcia vehicle moved from the left center lane into the left-most lane and was traveling at a speed of approximately 65 miles per hour (the posted speed limit).   The Monahan vehicle was proceeding in the left center lane and was traveling with the flow of traffic in that lane at approximately 70 to 75 miles per hour.

TM described the two vehicles immediately ahead of him turned their vehicles so as to leave the left center lane whereupon Monahan, who had been adjusting his iPod immediately before the two vehicles ahead of him made these turns, noted that there was a truck tire tread strewn across the left center lane a short distance ahead of him, he looked right and noted traffic to his right, he looked behind him and then suddenly veered out of the left center lane and into the left-most southbound lane.   TM admitted that he did not look for traffic to his left as he was fast approaching the tire tread in the roadway ahead of him.

When TM veered out of the left center lane into the left lane he felt a collision with something that he felt was “behind” him.   However, Monahan's head struck the window in his driver's door suggesting that the force of the impact was not behind him but alongside of him.

JMM testified that as he was traveling in the left-most lane his vehicle was struck from the right side by a vehicle coming from his right pushing the Martinez Murcia vehicle off the traveled portion of the roadway and into the grassy median divider between northbound and southbound lanes of I-91.

JMM testified that he tried to control the travel of his motor vehicle, that his father, the right front passenger, perceived the danger of the situation and uttered an expletive.   JMM was unable to control the travel and movement of his vehicle as it began to yaw and turn sideways in the grass eventually flipping over repeatedly as it rolled over and over on top of a metal guardrail in the median divider.   JMM's SUV came to a rest at the end of that median divider some several hundred feet from where the SUV first exited the traveled portion of I-91 southbound lanes.

Murcia Martinez testified that when the Toyota finally stopped rolling over and came to rest, that his father, the right front passenger, was bleeding profusely from his head, nose and mouth.   JMM was unable to communicate with his father.   After several minutes JMM's father died while JMM held him.   JMM testified he heard his father's last breath.

JMM then exited the vehicle and various rescue personnel and passersby sought to give him assistance.

The ambulance personnel determined that Jose Valentin Martinez Velasquez, Martinez Murcia's father, was unresponsive at the scene, had no pulse, and had no communication with anyone at the scene.   He was pronounced dead at the hospital shortly thereafter due to the injuries suffered in the instant collision.

The plaintiffs have alleged that the TM was both negligent and reckless.   The plaintiffs allege that TM was negligent in one or more ways including:  failing to remain attentive to driving, failing to keep a proper lookout for other traffic, operating too fast for conditions in violation of statute and common law, failing to keep his vehicle under proper control, failing to steer to avoid a collision, failing to timely apply his brakes, and/or failing to operate within a single lane of travel and/or to safely change lanes of travel in violation of statute.   The plaintiffs allege that TM was reckless and showed reckless disregard for the rights and safety of others-including the plaintiffs-in violation of CGS 14-295, in one or more ways including:  traveling too fast for conditions including exceeding the posted speed limit, willful inattentiveness, and/or making an unsafe lane change in violation of the statute.

The defendants respond that JMM was comparatively negligent and repeat the allegations of negligence in an apportionment complaint against JMM filed in connection with the Velazquez case, alleging that JMM failed to keep a proper lookout, failed to keep his vehicle under reasonable and proper control, operated at an unreasonable rate of speed, failed to timely apply his brakes, and/or failed to so steer as to avoid a collision or otherwise use his senses and faculties to avoid the collision.

Plaintiffs have proved by a fair preponderance of the evidence that TM was negligent in traveling too fast.   The defendant admits that the posted speed limit was 65 miles an hour and that he was traveling between 70 to 75 miles per hour.   This violation of the statute is negligence per se.  O'Donnell v. Feneque, 120 Conn.App. 167, 171-72 (2010).

The plaintiffs have proved that TM failed to keep a proper lookout.   TM admitted, both to the police and during his examinations at trial, that he diverted his attention from the serious business of driving down an interstate highway in an area of relatively congested traffic to adjust his iPod audio player.   Monahan readily admits that he diverted his attention to make the iPod adjustment, but though the diversion of attention was brief it appears to have occurred just at the wrong time.   Monahan reported that he diverted his attention from the cars ahead of him and when he looked back he noticed the cars ahead suddenly turning off to the left ahead of him and it wasn't until the two cars immediately ahead of him had turned from his lane of travel that he noted the reason they had done the same because of a truck tire tread in the roadway in his lane of travel.

The court finds that Monahan had failed to keep a proper lookout and to pay reasonable attention to the roadway ahead of him and that had he done so he would have seen what was there to be seen including the fact that there was a tire tread in the roadway that was being avoided by the other traffic.   The other traffic did manage to leave its lane of travel safely and avoid the tire tread without collision.

Monahan readily admits that he was quite close to the vehicles immediately ahead of him and that when they veered he had little time to respond to the presence of the tire tread stretched across the left center southbound lane of I-91 immediately ahead of him.   Part of this limited time was attributable to the fact that Monahan was so close to the vehicles immediately ahead of him and had failed to keep a proper distance so as to allow for perception or reaction to danger.   Part of the limited time that Monahan had was attributable to the fact that Monahan had intentionally diverted his attention from the roadway to an adjustment of the iPod player in the seconds immediately before this event.   Part of the limited time that Monahan had to respond to the tire tread was Monahan's speed, well above the posted speed limit.   The court is not persuaded that the speed of other traffic, reportedly above the posted limit, gives license to TM to exceed the posted limit or negates his obligation to obey the posted limit.

The court rejects the application of the emergency doctrine ² to the instant case.   TM followed too closely to the vehicles immediately ahead of him, at a speed too great for conditions at a time when he distracted himself by adjusting the iPod player to invoke this doctrine.   In short, the brevity of time within which to react to the tire tread was created, in part, by his own making.

The plaintiffs also had proved that Monahan failed to make a safe lane change in accordance with the Connecticut General Statutes 14-236(1).³  Monahan readily admits that he failed to look to his left before moving out of the left center lane into the leftmost lane.   In short, he violated 14-236 by failing to ascertain that the movement of his vehicle from one lane to another could be safely accomplished.   Monahan readily admits that he moved his vehicle from one traveled lane to another without looking to see whether the lane he was moving into was clear.   TM testified that his vehicle collided with some other vehicle when he changed lanes.   TM did not see that other vehicle with which his vehicle collided and could not testify with any precision what he hit or specifically whether the vehicle with which his Subaru collided was the Toyota 4Runner occupied by the plaintiffs.

Monahan did show substantial responsibility by immediately bringing his car to a stop along the right hand, westerly, edge of the roadway and calling the police, several times, for assistance.   Monahan advised the police that he had been involved in the accident.   The only known accident at that place and time involved the plaintiffs.

The court does not find that the plaintiffs have proved by a fair preponderance that the defendant acted with reckless disregard to the rights and safety of others in violation of Connecticut General Statutes 14-295 ⁴ or a claim for common-law recklessness.   That statute, together with the interpretation given to the same by the Connecticut case law, and the common-law claim for recklessness require a level of proof that the plaintiffs did not sustain in this particular case.

Reckless misconduct refers to “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Id., 513.   “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)  Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988).   Recklessness, therefore, is more than negligence and also is more than gross negligence.  Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).   Rubel v. Wainwright, 86 Conn App 728, 740-41 (2005).

While the plaintiffs have proved that TM was negligent in the operation of his Subaru and that such negligence was a proximate cause of the collision and the resulting injuries and losses suffered by the plaintiff and plaintiff's decedent, the plaintiffs have not proved by a fair preponderance of the evidence that TM acted with reckless disregard for the rights and safety of others in violation of CGS 14-295 or otherwise acted recklessly.   There was insufficient proof that TM possessed the requisite state of mind, i.e. ‘a conscious choice of a course of action either with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent’ or that his conduct evinced reckless disregard for the rights and safety of others.

As a direct and proximate result of TM's negligence, as noted above, his vehicle collided with the Martinez Murcia vehicle, the Martinez Murcia vehicle left the travel portion of I-91 into the grassy center median between north and southbound lanes eventually rolling and crashing and causing severe injury to the operator, JMM and fatal injuries to the passenger JMM's father.

JMM sustained injuries to his head, cervical spine, thoracic spine, lumbo-sacral spine and lower limbs.   He had suffered lacerations to the face and ear necessitating sutures and leaving a substantial disfigurement and scar above the left eye as well as disfigurement behind the left ear.   He suffered severe bruising and contusions to his body and was rendered sick, sore and disabled for a considerable period immediately following the subject collision.   He sought and received extensive medical treatment from a variety of medical specialists-all of whom documented significant injuries proximately resulting from the subject crash.   He suffered permanent injury to both the neck and low back including continuing pain, stiffness and inability to engage in a variety of activities of daily living at home and at work.   JMM was ascribed permanent partial impairment ratings, pursuant to the AMA Guide to the Rating of Permanent Impairments, of a 3% of the cervical spine and 8% of the lumbo-sacral spine by orthopedic surgeon Eric Katz. JMM paid or incurred approximately $27,000.00 in past medical expenses.   JMM testified convincingly and with great emotion and credibility about both how the collision occurred and the nature and extent of the injuries he sustained including the witnessing of the terrible injuries suffered by his father.   He described the heart wrenching experience of holding his dying father during the last moments of his father's life.   JMM also provided a very moving recitation of the enjoyment, pleasure, engagement, quality and nature of his father's life.

JMM presses claims for compensation for personal injuries that necessitated medical care and treatment together with the pain and suffering attendant thereto as described above.   In addition thereto JMM presses a claim for bystander emotional distress as permitted under Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).   JMM meets all the criteria of the cause of action for bystander emotional distress as detailed in Clohessy.⁵  JMM testified with great emotion about the horrific witnessing of his father's injuries and death.   He described a 4- or 5-minute-long situation where his father was profusely bleeding from his head wounds suffered from this accident and JMM was trying to comfort him, to treat him and to communicate with him-all unsuccessfully.   During this 4- or 5-minute period JMM witnessed, and was powerless to prevent, his father's life ebbing away and final breath.

The court finds that fair just and reasonable compensation, both economic and noneconomic, for injuries and losses proximately resulting from the physical and mental injuries, together with the damages for bystander emotional distress, total $277,000.00.

JMM Adm. pressed a claim for wrongful death damages under Connecticut General Statutes 52-555.⁶  Connecticut case law has interpreted that statute as offering a number of elements of damage that can be considered by the trier of fact when compensating the decedent's estate including:  medical expenses necessitated by the injuries arising out of the crash, funeral expenses, net loss of earning capacity.⁷  In this instance the plaintiff's estate argues that the Court should consider just two elements of the wrongful death claim:  conscious pain and suffering including apprehension of impending injury and the damages for the loss of life itself including the loss of the activities and pleasures of life.   There was no evidence of post-injury conscious pain and suffering, but there was evidence that in the seconds before the collision began and during the rolling over of the car the plaintiff's decedent was aware and apprehended the imminence of the collision and expressed himself concerning the same.   The court considers this expression an apprehension of the fear, worry, concern or anxiety that preceded the tremendous injuries that he was about to sustain.   In addition, the court heard very moving testimony from a number of witnesses, including the plaintiff's children, friend, and spouse, about the nature and extent of the plaintiff's decedent's enjoyment of life activities and pleasures.   The court finds that the plaintiff's decedent was a remarkable man who was 46 years old, in excellent health and gainfully and regularly employed.   He was living in the United States with two adult children, communicating very regularly with his wife and his daughter who lived in Honduras and was supporting his wife and daughter in Honduras by working regularly with his sons here in the United States.   The court heard testimony of a wonderful man who was warm, loving, thoughtful, courageous, responsible and extraordinarily attentive to the needs of his family and friends.   Several very poignant vignettes were offered to describe the plaintiff decedent's examples of friendship, loyalty, hard work, dedication and responsibility.

The court finds that the fair just and reasonable damages attributable to the loss of life together with the conscious pain and suffering and mental distress that preceded the collision totals $900,000.00.

The court does not find that the defendant has proved that the plaintiff Martinez Murcia was comparatively negligent in any of the ways alleged in either the special defense or the apportionment complaint.

The court takes special note of the two very qualified, thoughtful, and learned accident reconstruction experts who testified at great length after substantial efforts to reconstruct the collision at hand.   Though they reach diametrically opposed theories of how the collision happened, each witness attempted to document their claim with considerable reliance upon the physical evidence at the scene.   However, the court found that each of the expert's explanations lacked the completely satisfying explanation of how this collision occurred and that only some of what each of the experts said was accurate in reconstructing this collision.   That said, the defendant's experts analysis did not satisfy the court on the key point of how the Martinez Murcia vehicle initially left the roadway or could have come into contact with the Monahan vehicle given the speeds that the various operators described they were proceeding in the instance before the collision and up through the time of collision.   The court does not fault the defendant's expert reconstruction, but simply notes that though the reconstruction may be accurate it does not conform to other testimony that this court from credible.   Based on the physical facts relied upon by the plaintiff's accident reconstruction expert and the testimony of witnesses found credible by the court, the court accepts, adopts and relies upon the testimony of the plaintiff's reconstruction expert in arriving at some of the conclusions of legal liability previously expressed herein.

The court does partially discount the accuracy and reliability the eyewitnesses who offered their testimony through deposition transcript.   First, their observations are discounted because they are in the northbound lanes of I-91, a considerable distance south of the collision.   One witness placed himself about 400 yards south of the collision, at his first observation, while driving northbound on I-91. The witnesses were also separated from the collision by the median divider together with the metal guard rail and grassy median.   Their attention was further divided by the fact that they were operating their vehicles in a northerly direction on I-91 in the northbound lanes, coping with highway speeds, traffic control, traffic and the necessity to control the movement of their respective vehicles.   Additionally, after the collision occurred they brought their vehicles to a halt across the roadway, crossed the median divider and came upon a scene involving tremendous injuries in fact, the death of Velazquez and serious injuries to Martinez Murcia.   In all the court finds the ability to observe and remember and relate these events was impaired by the distance and distractions attendant to the observation involved, the time period that passed between the observation and the recording of their observations, the shock of the observations they made, the substantial conflict between their observations and recollections and the observations and recollections of participants and the contradictions of their observations by both physical facts proved and conclusions drawn by the expert accident reconstruction experts that the court did find credible.

Wherefore, the court enters judgment in favor of Jose Martinez Murcia in the sum of $277,000.00 and in favor of the estate of Jose Velazquez in the amount of $900,000.00 against the defendants Timothy Monahan and Barbara Monahan on the negligence claims only.   The court finds no actionable comparative negligence attributable to Jose Martinez Murcia either in connection with the Special Defense or the Apportionment Complaint.   The court enters judgment on behalf of Timothy Monahan on the claims of recklessness and rejects the claims for double or treble damages under Connecticut General Statutes 14-295.

Zemetis, J.

FOOTNOTES

FN1. Sec. 52-182.   Presumption of family car or motorboat in operation by certain person.   Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption..  FN1. Sec. 52-182.   Presumption of family car or motorboat in operation by certain person.   Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.

FN2. The sudden emergency doctrine provides that “a defendant faced with a sudden and unexpected circumstance that leaves little or no time for consideration [may] not [be] held to the same duty of care required of a reasonably prudent person under ordinary circumstances.” ․”[t]he doctrine applies only in cases in which the operator is suddenly confronted by a situation not of his own making and has the opportunity of deciding rapidly between alternative courses of action”.  Brown v. Robishaw, 282 Conn. 628 (2007)..  FN2. The sudden emergency doctrine provides that “a defendant faced with a sudden and unexpected circumstance that leaves little or no time for consideration [may] not [be] held to the same duty of care required of a reasonably prudent person under ordinary circumstances.” ․”[t]he doctrine applies only in cases in which the operator is suddenly confronted by a situation not of his own making and has the opportunity of deciding rapidly between alternative courses of action”.  Brown v. Robishaw, 282 Conn. 628 (2007).

FN3. Sec. 14-236.   Multiple-lane highways.   When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety and (2) the State Traffic Commission may erect, on state highways, and local traffic authorities, in accordance with standards approved by the State Traffic Commission, may erect on highways under their jurisdiction, signs directing slow-moving traffic to use a designated lane or, with signs, signals or markings, may designate those lanes to be used by traffic moving in a particular direction regardless of the center of the highway, and drivers of vehicles shall obey the directions of each such sign, signal or marking.   Violation of subdivision (1) of this section shall be an infraction..  FN3. Sec. 14-236.   Multiple-lane highways.   When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety and (2) the State Traffic Commission may erect, on state highways, and local traffic authorities, in accordance with standards approved by the State Traffic Commission, may erect on highways under their jurisdiction, signs directing slow-moving traffic to use a designated lane or, with signs, signals or markings, may designate those lanes to be used by traffic moving in a particular direction regardless of the center of the highway, and drivers of vehicles shall obey the directions of each such sign, signal or marking.   Violation of subdivision (1) of this section shall be an infraction.

FN4. Sec. 14-295.   Double or treble damages for personal injury or property damage resulting from certain traffic violations.   In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle..  FN4. Sec. 14-295.   Double or treble damages for personal injury or property damage resulting from certain traffic violations.   In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.

FN5. In Clohessy, this court concluded that “a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions:  (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim;  (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location;  (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury;  and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”  Taylor v. Mucci, 288 Conn. 379, fn2 (2008)..  FN5. In Clohessy, this court concluded that “a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions:  (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim;  (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location;  (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury;  and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”  Taylor v. Mucci, 288 Conn. 379, fn2 (2008).

FN6. Sec. 52-555.   Actions for injuries resulting in death. (a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a with respect to such death..  FN6. Sec. 52-555.   Actions for injuries resulting in death. (a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a with respect to such death.

FN7. See Feldman v. Allegheny Airlines, 382 F.Supp 1271, Blumemfeld, J. (1974)..  FN7. See Feldman v. Allegheny Airlines, 382 F.Supp 1271, Blumemfeld, J. (1974).

Zemetis, Terence A., J.