Janet Fleming v. Gregory Dionisio (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT N.O.V. (# 235.00)

Nature of the proceedings

This is an action arising from a tragic motor vehicle accident in which plaintiff's decedent, the operator of a motorcycle, was killed in the collision.   The named defendant was the operator of the motor vehicle that struck the motorcycle, and defendant John Dionisio was the owner.   The action was commenced by Janet Fleming, acting both in the capacity of representative of the estate of her husband as well as in her own right seeking loss of consortium.

Shortly before scheduled commencement of trial in the summer of 2012, John Dionisio settled with plaintiffs, paying $1.3 million and obtaining a release.   Defendant ¹ thereupon filed a motion for summary judgment (after obtaining permission from the court to do so as well as a continuance of the trial date), based on the theory that the release of the alleged principal in an alleged agent-principal relationship automatically constituted a release of the alleged agent (Gregory Dionisio).   That motion ultimately was denied by the court [55 Conn. L. Rptr. 594].

The case was tried based on a complaint in six counts, three on behalf of the decedent and three relating to the loss of consortium claim.   Three theories of recovery were alleged—negligence, common-law recklessness, and statutory recklessness (General Statutes § 14–295).   Defendant admitted liability under the negligence count asserted on behalf of plaintiff's decedent but contested the other five claims.

The case was tried to a jury which rendered its verdict on April 11, 2013, finding defendant Gregory Dionisio liable for each of the three theories as to each of the two plaintiffs.   The jury responded to interrogatories, setting forth its findings as to damages/awards for negligence and statutory recklessness claims.   The jury also found that plaintiffs were entitled to common-law punitive damages.  (Instead of asking the jury to calculate common-law punitive/exemplary damages (if found to be warranted), the parties agreed that the jury would only be asked to determine whether such an award was appropriate, with the actual amount of that award to be determined by the court.)

During the trial, defendant moved for a directed verdict (which was denied), and after the verdict was accepted, defendant timely moved to set aside the verdict and for judgment notwithstanding the verdict.

Legal standards

In considering a motion for judgment notwithstanding the verdict, the court

must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial.   This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony.   Judgment notwithstanding the verdict should be granted only if ․ the jurors could not reasonably and legally have reached the conclusion that they did reach.   If the jury, however, without conjecture could not have found established an element of the claim, the verdict on the claim cannot withstand a motion for judgment notwithstanding the verdict.   Consequently, the plaintiff must produce sufficient evidence to remove the jury's function from the realm of speculation.  (Citations and internal quotation marks omitted.)  Craine v. Trinity College, 259 Conn. 625, 635–36 (2002).

See, also, Sargis v. Donahue, 142 Conn.App. 505, 510–11 (2013).

Although usually articulated in connection with a motion to set aside a jury verdict, the same considerations applicable in that context require the court to be mindful of the parties' constitutional right to have the facts of the case determined by the jury, and therefore must be careful not to infringe on that right.  Young v. Data Switch Corp., 231 Conn. 95, 100–01 (1994).

Discussion

Defendant's motion focuses on the second, third, fifth, and sixth counts, each alleging a recklessness claim (statutory or common-law).   Part of defendant's argument is procedural/technical—plaintiffs did not properly plead those claims insofar as the complaint at the time of trial did not specifically ask for common-law or statutory punitive damages.²  Defendant also claims that there was inadequate evidence to support any finding of recklessness.

The purpose of a complaint is to put the opposing party on notice of the claims being asserted and avoid surprise in that regard.   Defendant acknowledges that the captions of the various counts in question allude to recklessness.   Defendant had admitted liability under a negligence theory with respect to plaintiff's decedent, inexorably leading to the obvious question:  what point might there have been in asserting claims of recklessness on behalf of the decedent, if there were no additional (or alternate) damages that might be awarded?   This is not a situation such as one in which when there is some doubt as to whether there is an enforceable contract, justifying counts sounding in contract and unjust enrichment.   Nor is this like the more infrequent situation, when it is not clear to the pleader whether the claim is a breach of contract or tort, such that both claims are being asserted.   Here, there was an admission of liability as to negligence, and in a separate count, a citation to the statute providing for statutory punitive damages (§ 14–295) and a further count alleging common-law recklessness.   Statutory recklessness and common-law recklessness impose a greater burden of proof on the plaintiff (conduct more aggravated or egregious than simple negligence) which rationally could only be justified if there was something to be gained from assuming such a burden.   The court is satisfied that the defendant was on notice that the two forms of punitive damages being sought were being sought.

This conclusion is consistent with Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 638–43 (2013), wherein, as here, there had been a representation that a written amendment would be filed but such was not done.   In Fountain Pointe, the court stated that plaintiff had made an oral motion to amend;  while here there may not have been an explicit oral motion to amend, the import of what plaintiff sought to do was essentially indistinguishable.³  In a somewhat older case (cited by plaintiff) that is closer on point, in Markey v. Santangelo, 195 Conn. 76, 80 (1985), the court characterized as a “formalism” the defendant's insistence that the complaint explicitly assert a claim for punitive damages, when everything indicated that defendant was on notice that such was being claimed.

Accordingly, the court rejects defendant's contentions based on the technical rules of pleading.

Before addressing the merits of the more substantive claims, certain observations should be noted.   Defendant's contention that certain (and perhaps all) specifications of wrongdoing should not have been submitted to the jury with respect to claims of recklessness, seemingly blurs a critical distinction.   For purposes of a directed verdict or judgment notwithstanding the verdict, it is not sufficient to find fault with anything less than all bases on which the jury might have found in favor of the plaintiff.   In order for defendant to establish that judgment should be (or should have been) entered in his favor, he would have to negate each and every claimed basis for a finding of recklessness.   Conversely, any claimed improper submission of an issue to the jury would have to be accompanied by a demonstration of prejudice, an analysis/linkage that seems to be absent from this motion.

As something of a corollary, defendant complains that the court did not submit interrogatories asking the jury to indicate whether it had found that defendant had violated each of the threshold or trigger statutes in § 14–295 as a basis for statutory recklessness.   Defendant filed a 54–page request to charge, but the court can find no indication that he ever filed any proposed jury interrogatories.   It is not sufficient for a party simply to ask the court to submit interrogatories without actually drafting appropriate requests.

Viewed in the light most favorable to sustaining the verdict, there was ample evidence from which the jury could have found statutory as well as common-law recklessness.   Certainly there was no question as to whether defendant was legally intoxicated at the time of the collision, thereby satisfying one of the trigger statutes, § 14–227a—it was not an issue in the case.   There was evidence of his conduct over the previous 36 hours involving drinking and drugs, minimal sleep, working a full day, and more drinking, prior to the accident.   Defendant denied any recollection of any events in the hours immediately prior to the accident, and could not recall whether he had consumed alcohol in that period.   There was expert testimony that there would have been a “crash” phase associated with such behavior and the jury might well have inferred similar consequences based solely on the admitted alcohol use and limited sleep.   Subsequent to the accident, defendant made statements attempting to shift blame to plaintiff's decedent.   As a measure of how far “out of it” defendant was, around the time of the accident, he attempted to drink his own urine in an effort to hide the evidence that might have been contained in his urine as to what substances he had consumed.  (As something of a distinction without a difference, defendant testified that he had not actually attempted to drink the urine, but merely had been thinking about whether he should drink the urine (while not denying that he had moved the container towards his mouth during the process).)   As a consequence of this collision, defendant had pled guilty to charges serious enough to warrant a sentence with multiple years to serve.

Defendant points to the fact that there was evidence that speed had not been a factor in causing the collision.   The jury could have concluded that while speed may not have been a factor in an absolute sense, i.e. materially exceeding the speed limit, the jury could have concluded that his failure to negotiate a curve, instead crossing the center line and hitting the motorcycle head on, was symptomatic of excessive speed for the conditions—the condition of the road and his own mental state.   The extent of damage to the vehicles and the distance that plaintiff's decedent's body flew through the air also could have supported an inference of excessive speed for the conditions.

The jury reasonably could have concluded that defendant's decision to act as he did during the hours of that which he could recall, followed by driving his car for an unknown period of time in the wee hours of the morning and into the following day, was reckless within the meaning of common-law recklessness and statutory recklessness.

Anticipating that defendant might contend that each trigger statute must be viewed in isolation, defendant's own proposed request to charge recognized that there needed to be proof that the recklessness of defendant was a proximate cause of the collision and death of the decedent—but a proximate cause does not need to be an exclusive cause nor even the most substantial cause.   Further, whether the violation of a statutory trigger rose to the level of recklessness is something that can only be appreciated or evaluated in context.

Defendant's admitted violation of § 14–227a creates an almost insuperable hurdle which defendant has not met.   All of the other trigger statutes, even if not proven, cannot detract from the existence of a statutory violation as set forth in § 14–295.   There was evidence from which the jury could have concluded that, under the circumstances, the violation of the statute was reckless and proximately caused the death of plaintiff's decedent.

Defendant has not met his burden of establishing entitlement to judgment, notwithstanding the verdict in favor of plaintiffs.   Defendant's motion, then, is denied.

POVODATOR, J.

FOOTNOTES

FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio..  FN1. Hereafter, all references to “defendant” are intended to refer to Gregory Dionisio.

FN2. When the issue first was raised, believed to be in defendant's initial motion for directed verdict, the court denied the motion based, in part, on plaintiff's representation that an amended complaint would be filed forthwith, addressing that technical issue.   It was not until two months later, after the issue was raised yet again that plaintiff actually filed a suitably amended complaint (# 248.00)..  FN2. When the issue first was raised, believed to be in defendant's initial motion for directed verdict, the court denied the motion based, in part, on plaintiff's representation that an amended complaint would be filed forthwith, addressing that technical issue.   It was not until two months later, after the issue was raised yet again that plaintiff actually filed a suitably amended complaint (# 248.00).

FN3. See, also, Burton v. Stamford, 115 Conn.App. 47 (2009), and the discussion of AC 28309 starting at page 54, allowing an oral amendment after the court had granted a motion for directed verdict..  FN3. See, also, Burton v. Stamford, 115 Conn.App. 47 (2009), and the discussion of AC 28309 starting at page 54, allowing an oral amendment after the court had granted a motion for directed verdict.

Povodator, Kenneth B., J.