Fain v. Benak ( 2021 )

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MARIE FAIN v. BETHANY BENAK ET AL.
(AC 43898)
Alvord, Cradle and Eveleigh, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries that she sus-
tained when her vehicle was struck by a vehicle driven by the defendant
B, an employee of the defendant Department of Administrative Services.
The plaintiff alleged that her injuries were the result of B’s negligence.
Following a trial to the court, the court rendered judgment in favor of
the plaintiff and awarded damages. The plaintiff filed a motion for
reconsideration as to her claimed future medical expenses, and attached
to that motion a letter from her treating physician, G, which had been
admitted as a full exhibit at trial. The letter stated that it was more
probable than not that the plaintiff would require future medical treat-
ment. The court granted the plaintiff’s motion, awarded additional dam-
ages, and the defendant Department of Administrative Services appealed
to this court. Held:
1. The defendant Department of Administrative Services could not prevail
on its claim that the trial court erred in declining to apply the unavoidable
accident doctrine, which was based on its claim that B was not negligent
because she experienced a sudden emergency caused by the blowout
of her left front tire: because the court found that B was negligent and
caused the collision with the plaintiff’s vehicle, the accident could not
be considered unavoidable as a matter of law; the court determined
that B was negligent in the way in which she operated the vehicle and
that her actions were the proximate cause of the plaintiff’s injuries, and,
because these findings were inapposite to a determination that the
record could support a finding that the negligence of neither party was
involved, the court correctly determined that its finding of negligence
necessarily precluded a finding that the accident was unavoidable.
2. The trial court did not abuse its discretion in granting the plaintiff’s motion
for reconsideration after it determined that she had presented sufficient
evidence to support an award of damages for future medical expenses:
G’s letter and certain additional evidence presented at trial supported
a conclusion that the plaintiff would incur future medical expenses and
also provided evidence as to the specific costs of those expenses; this
evidence took the plaintiff’s claimed future medical expenses out of the
realm of speculation, provided a degree of medical certainty that she
would need future care, and presented sufficient evidence from which
the court could approximate the costs of future medical treatment.
Argued March 10—officially released July 13, 2021
Procedural History
Action to recover damages for personal injuries the
plaintiff sustained as a result of the named defendant’s
alleged negligence, brought to the Superior Court in
the judicial district of New London, where the action
was withdrawn as to the named defendant; thereafter,
the case was tried to the court, Knox, J.; judgment for
the plaintiff, from which the defendant Department of
Administrative Services appealed to this court; subse-
quently, the court, Knox, J., granted the plaintiff’s
motion for reconsideration and awarded the plaintiff
additional damages, and the defendant Department of
Administrative Services amended its appeal; thereafter,
the court, Knox, J., denied the motion for reconsidera-
tion and to set aside the judgment filed by the defendant
Department of Administrative Services, and the defen-
dant Department of Administrative Services amended
its appeal. Affirmed.
James E. Coyne, for the appellant (defendant Depart-
ment of Administrative Services).
Charles K. Norris, with whom, on the brief, was
Anthony D. Sutton, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant Department of Adminis-
trative Services1 appeals from the judgment of the trial
court rendered in favor of the plaintiff, Marie Fain, in
this negligence action following a trial to the court. On
appeal, the defendant claims that the court erred in (1)
declining to apply the ‘‘unavoidable accident doctrine’’
to the facts of the case and (2) granting the plaintiff’s
motion for reconsideration after it determined that she
presented sufficient evidence to support an award of
damages for future medical expenses. We affirm the
judgment of the trial court.
The following facts, as found by the court in its memo-
randum of decision, and procedural history are relevant
to our discussion of the claims on appeal. On the morn-
ing of June 5, 2017, the plaintiff was driving south on
Flanders Road in East Lyme. The plaintiff was traveling
at the posted speed limit of thirty-five miles per hour.
The plaintiff drove this route daily during her commute
to her job as a school teacher. That morning, a vehicle
operated by the defendant’s employee, Bethany Benak,
struck the plaintiff’s vehicle.2 The collision happened
suddenly and without warning; the two vehicles were
heading in opposite directions and were in their respec-
tive lanes when Benak’s vehicle crossed into the plain-
tiff’s lane, the southbound lane, and struck the plaintiff’s
vehicle. On impact, the plaintiff’s vehicle spun and
entered the northbound lane, where it collided with
another vehicle. Finally, the plaintiff’s vehicle came to
a stop at a stone wall. On the basis of the plaintiff’s
testimony, which the court found was credible, the
court determined that during the course of the accident,
Benak’s vehicle crossed the center line and did not
slow down.
Just prior to the accident, Benak heard a popping
sound, and the vehicle she was operating pulled to the
left,3 toward the southbound lane of traffic. At trial, the
police officer who responded to the scene testified that
Benak’s front left tire appeared to have blown out, and
the court found that there was a tear in the tire. At the
time the tire burst, Benak did not know the speed at
which she was traveling, whether she had applied her
vehicle’s brakes, or how far she was from the plaintiff’s
vehicle.
After the accident, an ambulance transported the
plaintiff to the emergency department of a hospital. The
plaintiff sustained a fractured hip, a bruised kidney,
and a fractured arm as a result of the accident. Due to
the nature of the fracture, her arm required surgery to
attach a plate and screws to the broken bone. The
plaintiff remained hospitalized for four days before
being discharged to a rehabilitative center for two
weeks. Because of the fracture in her hip, the plaintiff
was ‘‘non-weight bearing’’ for approximately two
months and, as a result, spent much of her time in a
bed or a wheelchair. In addition to these physical ail-
ments, the plaintiff was unable to take part in her normal
summertime activities and was unable to properly care
for herself or her family. Furthermore, the plaintiff was
unable to return to work as an elementary school
teacher until December, 2017, six months after the acci-
dent. At the time of trial, two and one-half years after
the accident, the plaintiff continued to experience pain
as a result of her injuries.
On August 15, 2018, the plaintiff commenced the pres-
ent action. In the plaintiff’s operative complaint, filed
on December 2, 2019, she alleged that Benak was negli-
gent and claimed that the defendant was liable for the
plaintiff’s damages pursuant to General Statutes § 52-
556.4 The case was tried to the court, Knox, J., on
December 12 and 13, 2019. Both parties submitted post-
trial briefs. On January 15, 2020, the court issued its
memorandum of decision, in which it found that Benak
had negligently operated her vehicle and had caused the
collision with the plaintiff’s vehicle. The court rendered
judgment in favor of the plaintiff and awarded damages
in the amount of $344,867.33. This award included com-
pensation for economic damages in the amount of
$84,867.335 and noneconomic damages in the amount
of $260,000.
In its memorandum of decision, the court found that it
was reasonably probable that the plaintiff would require
future surgery and physical therapy; however, the court
also found that there was ‘‘insufficient evidence upon
which to determine future medical expenses.’’ On Janu-
ary 23, 2020, the plaintiff filed a motion for reconsidera-
tion as to her claimed future medical expenses and
attached a letter from her treating physician, Daniel
Gaccione, which was admitted into evidence as a full
exhibit during trial. The defendant objected to the plain-
tiff’s motion for reconsideration. While the motion was
pending, the defendant filed this appeal. On February
11, 2020, the trial court granted the plaintiff’s motion for
reconsideration and awarded the plaintiff an additional
$14,250 in damages for future medical expenses.6
On February 3, 2020, while the plaintiff’s motion for
reconsideration remained pending, the defendant filed
a motion for reconsideration, reargument and to set
aside the judgment in favor of the plaintiff. On February
17, 2020, the court denied the defendant’s motion. The
defendant thereafter amended its appeal. Additional
facts will be set forth as necessary.
I
The defendant first claims that the trial court erred
in refusing to apply the ‘‘unavoidable accident doctrine’’
to the facts of the case. In particular, the defendant
argues that the court should have applied the ‘‘unavoid-
able accident doctrine’’ because ‘‘the blowout of the tire
was not foreseeable and amount[ed] to an unavoidable
accident.’’ We disagree.
Before we address the substance of the defendant’s
first claim, we set forth the appropriate standard of
review. The defendant maintains that whether a court
should apply the ‘‘unavoidable accident doctrine’’ is a
question of law subject to plenary review. The plaintiff,
on the other hand, maintains that our review is guided
by the abuse of discretion standard.
‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court. To the extent that the trial court has made
findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. When,
however, the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts as they appear in the record.’’ (Internal
quotation marks omitted.) DeLeo v. Equale & Cirone,
LLP, 202 Conn. App. 650, 659, 246 A.3d 988, cert. denied,
336 Conn. 927, 247 A.3d 577 (2021).
In its memorandum of decision, the court set forth
its determination with respect to the applicability of the
‘‘unavoidable accident doctrine’’ as follows: ‘‘In Shea v.
Tousignant, [172 Conn. 54, 372 A.2d 151] (1976), the
court held that liability cannot be imposed on the opera-
tor of a vehicle who has a sudden medical emergency
resulting in the loss of control of the vehicle. See also
Smith v. Czescel, [12 Conn. App. 558, 533 A.2d 223, cert.
denied, 206 Conn. 803, 535 A.2d 1316] (1987). The court
rejects the application of the ‘unavoidable accident’
doctrine for the following reasons. First, there is no
claim that Benak experienced a sudden medical emer-
gency which prevented her . . . [from] maintain[ing]
control of the vehicle. This court will not by analogy
extend the doctrine to a mechanical issue with the
vehicle. Second, and more significantly, the court finds
that the plaintiff has sustained her burden of proof that
the driver of the state vehicle negligently operated her
vehicle and caused the collision with the plaintiff’s vehi-
cle in one or more of the ways set forth in the operative
complaint.’’
The defendant does not argue clear error with respect
to the court’s factual finding that there was no claim
that Benak experienced a sudden medical emergency
that prevented her from controlling her vehicle or its
factual finding that Benak negligently operated her vehi-
cle. Rather, the defendant claims only that the court
erred in declining to apply the concept of unavoidable
accident to these facts. Our resolution of this issue
depends on whether the court properly declined to
apply the ‘‘unavoidable accident doctrine’’ to the facts of
this case.7 Therefore, our standard of review is plenary.
Having established the standard of review, we turn
to the defendant’s claim that the court erred in refusing
to apply the ‘‘unavoidable accident doctrine.’’ The plain-
tiff responds that the ‘‘court’s decision to not apply the
unavoidable accident doctrine to the evidence adduced
at trial was correct, as the trial court clearly and
unequivocally found that the defendant’s operator was
negligent as alleged by the plaintiff in the operative
complaint.’’ We agree with the plaintiff.
The following additional facts are relevant to our
resolution of this claim. In the trial court’s memoran-
dum of decision, the court expressly credited the plain-
tiff’s testimony that ‘‘the state vehicle when it was
approaching the plaintiff’s vehicle crossed the center
line and failed to slow down.’’ The court found that
‘‘the plaintiff [had] sustained her burden of proof that
the driver of the state vehicle negligently operated her
vehicle and caused the collision with the plaintiff’s vehi-
cle in one or more of the ways set forth in the operative
complaint.’’ Further, the court determined that Benak’s
negligence was the proximate cause of the plaintiff’s
damages.
In her operative complaint, the plaintiff alleged that
Benak was negligent in a number of ways. The allega-
tions relate to Benak’s actions after her tire blew out,
with the exception of the allegation that she failed to
adhere to the speed limit in the time leading up to the
accident. 8 Failing to remain in her lane, failing to brake,
and general inattentiveness while driving are among
the allegations.9
On the basis of these theories of liability and the
evidence presented at trial, the court determined that
the plaintiff proved that Benak ‘‘negligently operated
her vehicle and caused the collision with the plaintiff’s
vehicle . . . .’’ On the basis of the court’s conclusion
that the plaintiff proved that Benak negligently operated
her vehicle, the court ‘‘[rejected] the application of the
‘unavoidable accident’ doctrine’’ to the facts of the case.
The court elucidated that there was ‘‘no claim that
Benak experienced a sudden medical emergency which
prevented her [from] maintain[ing] control of the vehi-
cle,’’ and it declined to extend ‘‘by analogy . . . the
doctrine to a mechanical issue with the vehicle.’’
On appeal, the defendant argues that, because Benak
‘‘experienced a sudden, unexpected emergency, caused
by the blowout of her left front tire causing her to cross
over the centerline of the highway and go partially into
the lane in which the plaintiff was operating her vehi-
cle,’’ she was not negligent. It is the defendant’s position
that, ‘‘in order for the plaintiff to prevail the plaintiff
would have had to have produced evidence that . . .
Benak had some ‘premonition, warning, or advanced
notice’ that the tire on the subject vehicle was about
to blow out.’’ This argument is premised on the defen-
dant’s claim that the ‘‘unavoidable accident doctrine’’
precludes liability. However, this argument is not
responsive to the plaintiff’s allegations or to the court’s
findings.
The defendant does not challenge on appeal the trial
court’s findings aside from its claim that the ‘‘unavoid-
able accident doctrine’’ precludes a finding of negli-
gence and its related claim that, in order to prevail at
trial, the plaintiff needed to prove that Benak knew
of the impending blowout or negligently caused it to
occur.10 Ultimately, because the court found that Benak
was negligent, the accident cannot be considered
unavoidable or inevitable as a matter of law.
In support of its claim, the defendant relies on Profes-
sors Prosser and Keeton’s definition of ‘‘unavoidable
accident,’’ which provides that ‘‘[a]n unavoidable acci-
dent is an occurrence which is not intended and which,
under all the circumstances, could not have been fore-
seen or prevented by the exercise of reasonable precau-
tions. That is, an accident is considered unavoidable or
inevitable at law if it was not proximately caused by
the negligence of any party to the action, or to the
accident. . . . [T]he driver of an automobile who sud-
denly loses control of the car because the driver is
seized with a heart attack, a stroke, a fainting spell, or
an epileptic fit is not liable, unless the driver knew that
he might become ill, in which case he may have been
negligent in driving the car at all.’’ (Footnotes omitted.)
W. Keeton et al., Prosser and Keeton on the Law of
Torts (5th Ed. 1984) § 29, p. 162.
In Connecticut, this concept has been incorporated
into a model jury instruction, which provides: ‘‘The
defendant claims that any injury suffered by the plaintiff
was the result of an unusual or unexpected event and
was not the result of either party’s negligence. If you
find that the alleged injuries and/or losses in question
did not result from either the defendant’s or the plain-
tiff’s negligence but were caused solely by some other
happening, then the defendant is not liable to the plain-
tiff.’’ Connecticut Civil Jury Instructions 3.6-16, avail-
able at https://www.jud.ct.gov/JI/Civil/Civil.pdf (last vis-
ited July 7, 2021). Our Supreme Court has condoned
this instruction only in the context of a driver losing
consciousness while operating a motor vehicle. See
Shea v. Tousignant, supra, 172 Conn. 56, 58 (directing
trial court to provide instruction on remand in case
in which defendant passed out or fell asleep without
warning). Additionally, on more than one occasion, the
court has expressed disapproval of the charge. See, e.g.,
Tomczuk v. Alvarez, 184 Conn. 182, 190–91, 439 A.2d
935 (1981); see also W. Keeton et al., supra, § 29, p. 163
(noting that instructions on doctrine have fallen into
disfavor in many states).
The concept of unavoidable accident does not excuse
a defendant from liability. Rather, it contextualizes the
question of whether an actor has been negligent. See
Tomczuk v. Alvarez, supra, 184 Conn. 190–91. Indeed,
our Supreme Court has explained that ‘‘[a]n instruction
on unavoidable accident serves no useful purpose and
functions to confuse and mislead the jury and direct
their attention from the primary issues of negligence,
proximate cause and burden of proof. An additional,
unnecessary instruction on the concept of unavoidable
accident would only complicate the rules concerning
negligence, proximate cause and burden of proof which
must be explained to the jury. Instructions concerning
unavoidable accident usually should be given only when
the record can support a finding that the negligence of
neither party is involved. When a foundation has been
established it still remains within the sound discretion
of the trial judge to determine whether an unavoidable
accident charge is appropriate. Even if we assume an
abuse of discretion, instructions on negligence, proxi-
mate cause and burden of proof could operate as a
sufficient substitute for the unavoidable [accident]
charge so as to preclude us from finding error.’’ Id.; see
also Barrese v. DeFillippo, 45 Conn. App. 102, 108–109,
694 A.2d 797 (1997).
In the present case, the court, acting as the fact finder,
determined that Benak was negligent in the way in
which she operated her vehicle, noting issues with her
speed and braking, and that her actions were the proxi-
mate cause of the plaintiff’s injuries. Because these
findings are inapposite to a determination that ‘‘the
record can support a finding that the negligence of
neither party is involved’’; (internal quotation marks
omitted) Barrese v. DeFillippo, supra, 45 Conn. App.
108; the court correctly determined that its finding of
negligence necessarily precluded a finding that the acci-
dent was unavoidable.11
II
The defendant’s second claim is that the court erred
in granting the plaintiff’s motion for reconsideration and
in increasing the award of damages to include future
medical expenses. We disagree.
The question of whether to grant a motion for recon-
sideration ‘‘is within the sound discretion of the court.’’
Shore v. Haverson Architecture & Design, P.C., 92
Conn. App. 469, 479, 886 A.2d 837 (2005), cert. denied,
277 Conn. 907, 894 A.2d 988 (2006). ‘‘The standard of
review regarding challenges to a court’s ruling on a
motion for reconsideration is abuse of discretion. As
with any discretionary action of the trial court . . . the
ultimate [question for appellate review] is whether the
trial court could have reasonably concluded as it did.’’
(Internal quotation marks omitted.) Id.The following additional facts are relevant to our
resolution of this claim. As discussed previously, the
court, in its memorandum of decision, determined that
there was insufficient evidence on which to determine
future medical expenses. In support of her motion for
reconsideration, the plaintiff attached a letter from her
physician, which was admitted as a full exhibit during
the trial. Gaccione stated in his letter: ‘‘With [regard]
to further treatment, there is a better than 50 [percent]
chance that it may be necessary to remove [the plain-
tiff’s] left forearm hardware in the future. In addition,
she may require physical therapy treatment for up to
[ten] visits on an annual basis for the next several years
while she continues to recover from her right hip and
lower back injuries. In other words, it is more probable
than not that she would require this treatment related
to her left ulna and right acetabular fracture/lumbar
sprain in the future.’’ Gaccione went on to state that
future arm surgery would cost between $6000 and $8000
and that physical therapy usually costs between $100
and $150 per visit. At trial, the plaintiff also introduced
a summary of her physical therapy visits showing that
she already had incurred $4987 in physical therapy bills;
this exhibit was entered into evidence in full. Addition-
ally, in its initial memorandum of decision, the court
found that the plaintiff had a life expectancy of thirty-
seven years. Upon review of the plaintiff’s motion and
over the defendant’s objection, the court found ‘‘that
the plaintiff offered sufficient evidence of the reason-
able cost of future medical expenses for the surgical
removal of hardware for the right acetabular fracture
and physical therapy treatments. The court award[ed]
the plaintiff future medical expenses in the sum total
of $14,250.’’
On appeal, the defendant argues that because the
letter from Gaccione ‘‘does not provide the court . . .
with sufficient evidence to make a reasonable estimate
of the cost of such treatment . . . [and] does not pro-
vide the court with sufficient evidence upon which to
calculate how much physical therapy is going to be
necessary and for how long . . . the award of . . .
future medical expenses is not supported by the evi-
dence . . . .’’ We disagree.
‘‘Damages for the future consequences of an injury
can never be forecast with certainty.’’ (Internal quota-
tion marks omitted.) Marchetti v. Ramirez, 240 Conn.
49, 56, 688 A.2d 1325 (1997). Accordingly, an award
of future medical expenses should be ‘‘based upon an
estimate of reasonable probabilities, not possibilities.
. . . The obvious purpose of this requirement is to pre-
vent the [fact finder] from awarding damages for future
medical expenses based merely on speculation or con-
jecture. Because, however, [f]uture medical expenses
do not require the same degree of certainty as past
medical expenses . . . [i]t is not speculation or conjec-
ture to calculate future medical expenses based upon
the history of medical expenses that have accrued as
of the trial date . . . when there is also a degree of
medical certainty that future medical expenses will
be necessary.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Id., 54–55.
In Marchetti, the plaintiff’s treating physician
‘‘expressed the opinion that the plaintiff [would] require
future medical treatment for his injuries.’’ Id., 55.
Although the physician could not estimate the costs of
that future treatment, our Supreme Court determined
that the jury reasonably could have awarded the plain-
tiff damages for future medical expenses because ‘‘the
evidence established that the plaintiff had received
medical treatment for his injuries on a regular basis
since the date of the accident,’’ and because the plaintiff
established life expectancy and total costs of treatment
as of the date of trial. Id., 56.
In the present case, Gaccione’s letter and the addi-
tional evidence presented at trial support a conclusion
that the plaintiff would incur future medical expenses
and also provided evidence as to the costs of her future
medical expenses. Specifically, the plaintiff submitted
evidence of the treatment she likely would need in the
future (follow-up arm surgery and physical therapy),
the costs of such treatment (between $6000 and $8000
for the arm surgery and between $100 and $150 per
physical therapy appointment), the approximate length
of time she would need physical therapy (several years),
her past medical expenses (including $4987 for physical
therapy), and her life expectancy (thirty-seven years).
This evidence took the plaintiff’s claimed future medical
expenses out of the realm of speculation, provided ‘‘a
degree of medical certainty’’ that she would need future
care, and presented sufficient evidence from which the
court could approximate the costs of future medical
treatment. (Emphasis omitted; internal quotation marks
omitted.) Marchetti v. Ramirez, supra, 240 Conn. 55.
Thus, the trial court did not abuse its discretion in
granting the motion for reconsideration and in
determining that this evidence was sufficient to support
the award of future medical expenses.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff’s complaint originally also named Bethany Benak
as a defendant, the plaintiff subsequently withdrew her complaint against
Benak, and Benak is not a party to this appeal. We refer in this opinion to
the Department of Administrative Services as the defendant.
2
The defendant admits that Benak ‘‘was operating a vehicle owned and
insured by the defendant . . . and with its full permission and consent,’’
and that her operation of the vehicle was in the course of her employment
when the accident occurred.
3
In its memorandum of decision, the court stated that Benak testified
that ‘‘prior to the impact, she heard a pop-like sound and experienced the
car pull to the right,’’ but, as noted by the defendant in its principal appellate
brief, Benak’s testimony indicates that the vehicle pulled to the left and into
the other lane of traffic.
4
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.’’
5
The award of economic damages included compensation for medical
bills ($59,699.05), lost wages ($23,289), and expenses incurred to modify
the plaintiff’s home to accommodate her wheelchair ($1909.28).
6
The defendant filed a motion for articulation and rectification as to the
court’s award of damages for future medical expenses. The court denied
the motion. The defendant did not seek review of the court’s ruling denying
its motion for articulation.
7
We note that a trial court’s denial of a request to charge the jury on
unavoidable accident is subject to abuse of discretion review. See Tomczuk
v. Alvarez, 184 Conn. 182, 190–91, 439 A.2d 935 (1981); see also Barrese v.
DeFillippo, 45 Conn. App. 102, 108–109, 694 A.2d 797 (1997). In the present
case, however, plenary review is appropriate to address the applicability of
the unavoidable accident concept in light of the court’s unchallenged findings
of negligence.
8
The plaintiff’s allegations in her operative complaint are as follows:
Benak (1) ‘‘[f]ailed to grant one half of the highway to the plaintiff’s vehicle
in violation of’’ General Statutes § 14-231; (2) ‘‘[f]ailed to pass to the right
of the plaintiff’s vehicle in violation of’’ § 14-231; (3) ‘‘[f]ailed to grant the
right of way to the plaintiff’s motor vehicle’’; (4) ‘‘[f]ailed to grant one half
of the highway to the plaintiff’s motor vehicle’’; (5) ‘‘[f]ailed to operate her
motor vehicle upon the right in violation of’’ General Statutes § 14-230; (6)
‘‘[f]ailed to keep a proper and reasonable lookout for other motor vehicles
on the highway’’; (7) ‘‘[f]ailed to apply her brakes in time to avoid a collision
although by a proper and reasonable exercise . . . of her faculties, she
could and should have done so’’; (8) ‘‘[f]ailed to turn her motor vehicle so
as to avoid a collision with the plaintiff’s motor vehicle’’; (9) ‘‘[f]ailed to
sound her horn or otherwise warn the plaintiff of the impending collision’’;
(10) ‘‘[f]ailed to take reasonable precautions to avoid the collision’’; (11)
‘‘[f]ailed to keep her motor vehicle under proper and reasonable control’’;
(12) ‘‘[w]as inattentive and failed to keep and maintain a reasonable and
proper lookout’’; (13) ‘‘[o]perated her motor vehicle at an excessive rate of
speed in violation of’’ General Statutes §14-219; (14) ‘‘[o]perated her motor
vehicle at a rate of speed greater than was reasonable, having regard to
traffic, highway, weather, and other conditions, in violation of’’ General
Statutes §14-218a; (15) ‘‘[o]perated her motor vehicle at an excessive rate
of speed under the circumstances then and there existing’’; (16) ‘‘[o]perated
her motor vehicle on the left side of the highway in violation of’’ General
Statutes §§ 14-235 and 14-234; (17) ‘‘[d]rove her motor vehicle on the left
side of the highway into the path of the plaintiff’s vehicle; and (18) ‘‘[f]ailed
to operate her motor vehicle within her single lane of traffic in violation
of’’ General Statutes § 14-236.
9
At no point does the plaintiff claim that Benak negligently caused the
blowout or that she had notice of the impending mechanical problem.
10
The defendant asserts that this issue is based on a question of law,
indicating that it does not dispute the trial court’s factual findings.
11
Because the court found that the plaintiff’s injuries were a result of
Benak’s negligence and were not caused by an unavoidable accident, we
need not address whether this concept applies to mechanical issues.