Tremper v. State

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
DELFINA CUAPIO RODRIGUEZ ET AL.
v. STATE OF CONNECTICUT
(AC 35406)
DAVID TREMPER v. STATE OF CONNECTICUT
(AC 35570)
Beach, Keller and Prescott, Js.
Argued September 16, 2014—officially released February 24, 2015
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Lorinda S. Coon, for the appellant in both appeals
(defendant).
Timothy P. Pothin, for the appellee in AC 35570
(plaintiff), with whom was Marisa A. Bellair, for the
appellee in AC 35406 (plaintiff Delfina Cuapio Rodri-
guez, administratrix of the estate of Modesto Palafox
Munoz).
Opinion
PRESCOTT, J. In these two consolidated negligence
actions arising out of a serious motor vehicle accident,
the defendant state of Connecticut (state) appeals from
the judgments of the trial court denying motions to set
aside jury verdicts rendered in favor of the plaintiffs
Delfina Cuapio Rodriguez, administratrix of the estate
of Modesto Palafox Munoz, and David Tremper.1 The
dispositive issue in these appeals is whether the court
improperly instructed the jury regarding the scope of
the state’s sovereign immunity from suit in an action
brought by the plaintiffs pursuant to General Statutes
§ 52-556.2 Because we conclude that the court’s instruc-
tions did not provide the jury with proper guidance and
a clear understanding of the issues it was to decide,
we reverse the judgments and remand the cases for
further proceedings.3
The following facts and procedural history are rele-
vant to our consideration of these appeals. These two
actions arise out of a motor vehicle accident that
occurred on September 2, 2008, at approximately 7 a.m.
near exit 41 on the southbound portion of Interstate 95
in Orange. At that time, a tractor trailer owned by B.C.
Trucking, Inc., and driven by William Clifford, struck
from behind three vehicles that had slowed as they
approached metal debris in the left and center travel
lanes of the highway near the Marsh Hill Road overpass.
The collision killed Munoz, a passenger in a Nissan
Quest, and seriously injured Tremper, the driver of a
Subaru Outback.4
On or about October 28, 2008, Tremper brought an
action against Clifford and B.C. Trucking, Inc., for per-
sonal injuries arising out of the accident. In turn, Clif-
ford and B.C. Trucking, Inc., filed an apportionment
complaint against the state and Leviticus Morey, a
Department of Transportation (DOT) employee who,
at the time of the accident, was operating an orange
DOT service truck on Interstate 95 near exit 41 as part
of his duties with DOT as a service patrol operator.
Specifically, Morey was tasked that morning with the
responsibility to patrol the interstate to find and remedy
unsafe driving conditions such as debris in the road
and to assist stranded motorists.
Tremper subsequently withdrew his action against
Clifford and B.C. Trucking, Inc., after settling his claims
with them and exchanging mutual releases. On April
23, 2009, Tremper initiated a direct action against the
state pursuant to § 52-556. In his second amended com-
plaint, Tremper alleged that the manner in which Morey
negligently ‘‘stopped and positioned his truck on the
highway incident to the operation of [Morey’s truck]’’
required Tremper to ‘‘[move] his vehicle to the center
lane of the highway where vehicles had slowed in front
of him,’’ and that his vehicle was then struck in the rear
by a tractor trailer. Specifically, Tremper alleged that
Morey was negligent in the following ways:
‘‘(a) he stopped and/or positioned defendant’s vehicle
on a public highway in a dangerous manner without
proper warning and safeguards;
‘‘(b) he made unsafe movements upon the highway
incidental to the operation of a state owned motor
vehicle;
‘‘(c) he caused defendant’s vehicle to obstruct moving
traffic on the highway, making it unsafe for other
motorists;
‘‘(d) he placed defendant’s vehicle on the highway so
as to direct traffic to the middle and left lanes, thereby
creating a dangerous bottleneck;
‘‘(e) he used defendant’s vehicle to close a lane of
traffic without proper warnings or safeguards, making
the highway dangerous for motorists in the right lane
and middle lane of travel;
‘‘(f) he placed defendant’s vehicle on the highway so
as to direct traffic toward debris in the road, thereby
creating a dangerous bottleneck;
‘‘(g) he failed to follow established safety procedures
and/or standards for diverting traffic on the highway
while operating a state owned motor vehicle; [and]
‘‘(h) he failed to take reasonable measures to warn
motorists of the presence of defendant’s vehicle in the
traveled portion of the highway . . . .’’
The state then filed an apportionment complaint
against Clifford and B.C. Trucking, Inc. The state’s
apportionment complaint alleged that the injuries and
damages suffered by Tremper were caused by the negli-
gence of Clifford, and that any damages awarded should
be apportioned between the state and the apportion-
ment defendants.
On July 20, 2009, Rodriguez, individually and as the
administrator of the estate of Munoz, brought a similar
action, pursuant to § 52-556, against the state, alleging
that Morey’s actions were a proximate cause of Munoz’
death and her corresponding loss of consortium as his
spouse.5 The specifications of negligence in Rodriguez’
second amended complaint were identical to those set
forth in Tremper’s second amended complaint.
In response to the action filed by Rodriguez, on July
2, 2012, the state filed a notice of apportionment against
Clifford and B.C. Trucking, Inc., alleging that the injur-
ies suffered by the plaintiff’s decedent were caused by
the negligence of Clifford and B.C. Trucking, Inc., and
that any damages should be apportioned between the
state and those nonparties.6
In both actions, the state asserted by way of a special
defense7 that the ‘‘allegations of negligence which do
not relate to ‘operation’ of a motor vehicle by the [state]
employee, within the meaning of General Statutes § 52-
556, are barred by the doctrine of sovereign immunity.’’
These two actions were consolidated for trial and
tried before a jury.8 At trial, the following facts were
essentially undisputed, some of which were disclosed
by a grainy DOT video that was shown to the jury.9 Just
before the accident occurred, Morey was driving his
state vehicle in the right lane of Interstate 95 south-
bound near the Marsh Hill Road overpass. Morey
observed cars taking evasive actions to get around a
piece of debris in the roadway. The debris was partly
in the center and left lanes of the highway. Morey first
pulled his truck onto the right shoulder of the highway
beyond the location of the debris, and then backed up
his vehicle along the shoulder until it was near the
debris in the road. He then pulled his vehicle forward
and out into the right travel lane, thereby creating a
barrier obstructing further travel in that lane. Shortly
thereafter, and before the accident occurred, Morey
illuminated all of the emergency lights on his vehicle
and the left directional arrow on the arrow board
attached to his truck.10 The plaintiffs never contended
at trial that the accident was caused by any operation
or movement of Morey’s truck before he positioned the
vehicle in the right lane and turned on the directional
arrow to the left.
At trial, the plaintiffs also called James Bragdon, a
traffic engineering consultant, to testify as an expert
witness. The state moved to preclude his testimony on
the ground that his opinions related to the ‘‘the proper
procedure for traffic control related to debris on the
highway,’’ rather than the negligent operation of a state
motor vehicle. Accordingly, the state argued that Brag-
don should not be permitted to testify because his prof-
fered opinions related to allegations of negligence that
fell outside the limited waiver of sovereign immunity
contained in § 52-556.
The court denied in part the state’s motion to pre-
clude.11 Bragdon then testified in front of the jury
regarding fundamental safety principles of temporary
traffic control activities that should be employed in
circumstances, such as those in the present case, in
which debris obstructs a portion of the highway. Brag-
don testified that these standards are contained in the
Manual on Uniform Traffic Control Devices published
by the Federal Highway Administration. Most signifi-
cantly, Bragdon testified that Morey failed to comply
with these traffic control safety standards by position-
ing his truck in the right lane, and then activating the left
directional arrow on the arrow board, thereby directing
traffic toward the center lane that was blocked. Brag-
don also opined that Morey, in the exercise of due care,
should have positioned his vehicle directly behind the
debris and activated his arrow panel in both directions.
The state filed requests to charge on the scope of the
state’s sovereign immunity.12 The state also requested
a charge on the proper use of the opinions offered by
Bragdon. No jury interrogatories were requested by any
of the parties or submitted to the jury.
The jury returned a verdict in favor of Tremper in
the amount of $225,000 in economic damages13 and $2.5
million in noneconomic damages, and found that Clif-
ford was 70 percent responsible and the state was 30
percent responsible. The court denied the state’s
motion to set aside the verdict, and, after adjudicating
other posttrial motions, rendered judgment in favor of
Tremper and against the state in the amount of $775,030.
The jury returned a verdict in favor of Rodriguez, in
her representative capacity, in the amount of $11,288.91
in economic damages and $4 million in noneconomic
damages. Again, the jury concluded that Clifford was
70 percent responsible and the state was 30 percent
responsible. The court denied a motion to set aside
the verdict and other posttrial motions, and rendered
judgment in favor of Rodriguez and against the state
in the amount of $1,203,386.67.
The state appealed from the judgments and the denial
of its motions to set aside the verdicts in each case,
and this court ordered the appeals consolidated. Fur-
ther facts and procedural history will be set forth as
necessary to address the claims of the parties.
I
The state first claims that the court improperly failed
to instruct the jury on the proper scope of the state’s
sovereign immunity from suit. Specifically, the state
contends that the court’s instructions to the jury were
incomplete or misleading because they failed to make
clear that, under principles of sovereign immunity and
the proper construction of § 52-556, the state could not
be held liable for the failure of Morey to exercise due
care in directing traffic around road debris or using his
state vehicle as a traffic control device or protective
barrier.14 In response, the plaintiffs contend that the
state’s construction of the limited scope of the state’s
waiver of sovereign immunity contained in § 52-556 con-
stitutes a ‘‘highly idiosyncratic and extremely narrow
view of the statute,’’ and that the trial court properly
instructed the jury that it could find the state liable if
it concluded (1) that the vehicle was parked ‘‘incident
to travel’’ and (2) that the state was negligent in any of
the specified ways when the vehicle was parked inci-
dent to travel. We agree with the state.
Whether the court properly instructed the jury regard-
ing the scope of the state’s waiver of sovereign immu-
nity in § 52-556 raises a question of statutory
interpretation over which our review is plenary. Sams
v. Dept. of Environmental Protection, 308 Conn. 359,
statutory construction are well established. When con-
struing a statute, [o]ur fundamental objective is to
ascertain and give effect to the apparent intent of the
legislature. . . . In other words, we seek to determine,
in a reasoned manner, the meaning of the statutory
language as applied to the facts of [the] case, including
the question of whether the language actually does
apply. . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered. . . . When a statute is not plain and
unambiguous, we also look for interpretive guidance
to the legislative history and circumstances surrounding
its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Southern New England Telephone Co. v. Cash-
man, 283 Conn. 644, 650–51, 931 A.2d 142 (2007).
Section 52-556 provides: ‘‘Any person injured in per-
son 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.’’ Thus, by
its terms, the state has waived its sovereign immunity
from suit for actions falling within the ambit of its
provisions. Babes v. Bennett, 247 Conn. 256, 263, 721
A.2d 511 (1998).
Decisions of our Supreme Court and this court have
repeatedly emphasized that statutes in derogation of
sovereign immunity must be strictly construed in favor
of the state, and, if there is any doubt about their mean-
ing or intent, they must be given the effect that makes
the least rather than the most change in sovereign
immunity. Stotler v. Dept. of Transportation, 313 Conn.
158, 166, 96 A.3d 527 (2014) (state highway liability, as
legislative waiver of state’s sovereign immunity, must
be strictly construed in favor of state); Envirotest Sys-
tems Corp. v. Commissioner of Motor Vehicles, 293
Conn. 382, 391, 978 A.2d 49 (2009) (extratextual sources
regarding legislative intent to waive sovereign immunity
may not be consulted because we must interpret any
uncertainty as to existence of waiver as preserving sov-
ereign immunity); Morneau v. State, 150 Conn. App.
237, 247, 90 A.3d 1003 (‘‘[e]xceptions to . . . doctrine
[of sovereign immunity] are few and narrowly con-
strued under our jurisprudence’’ [internal quotation
marks omitted]), cert. denied, 312 Conn. 926, 95 A.3d
522 (2014).
In construing § 52-556, we do not write on a clean
slate. Accordingly, we begin our review of the statute
with a discussion of the relevant precedent. This court
first addressed the meaning of § 52-556 in Rivera v.
Fox, 20 Conn. App. 619, 569 A.2d 1137, cert. denied,
215 Conn. 808, 576 A.2d 538 (1990). In Rivera, a state
employee ‘‘drove a DOT truck to a point in the west-
bound lane of an interstate highway in order to assist
in the cleanup of a fatal accident. He positioned the
truck partly in the left travel lane of the highway and
partly on the left shoulder and walked at least 500 feet
to the site of that accident. He left the vehicle with its
engine running and its strobe lights and four way flash-
ers on and set up flares on the road behind the vehicle.
His purpose was to alert oncoming drivers to debris
from the accident that was obstructing the highway.
Almost two hours later, while the employee was still
working at the accident site, the decedent’s vehicle
collided with the truck and the decedent was killed.’’
Id., 620. The plaintiff in Rivera then brought an action
against the state pursuant to § 52-556. The trial court
rendered summary judgment in favor of the state, con-
cluding that, at the time of the accident, the DOT truck
was not being operated within the meaning of § 52-556.
Id., 621.
This court affirmed the trial court’s grant of the
motion for summary judgment in favor of the state. In
so doing, the court in Rivera first recognized that there
was no legislative history15 that would shed light on
whether the legislature intended that the waiver of sov-
ereign immunity in § 52-556 include cases ‘‘where the
motor vehicle is stopped, unoccupied, and being used
to warn motorists of impending danger.’’ Id., 622. The
court then analyzed the statutory language, ‘‘when
operating a motor vehicle,’’ in light of the sovereign
immunity principles previously discussed and con-
cluded that that language in § 52-556 ‘‘implies a simulta-
neousness of negligent operation and injury, because
‘when’ denotes the time or exact moment at which
something is done. Here, there was no coalescence in
time of the operation and the injury. Without temporal
congruence, the state cannot be held liable even if the
negligent operation of a state owned motor vehicle by
a state employee proximately caused the injury.’’ Id.,
622–23.
This court in Rivera recognized that, under certain
circumstances, if the state vehicle caused an accident
because of the location it was ‘‘parked incident to
travel’’; id., 624; then a plaintiff might be able to establish
that the negligence occurred ‘‘when operating a motor
vehicle owned and insured by the state . . . .’’ General
Statutes § 52-556. The court in Rivera, however,
attached great significance to the fact that the parties
agreed that at the time of the collision ‘‘the DOT truck
was being used as a warning signal. The truck was not
parked incident to travel. It was placed on the highway,
not because [the location] was a convenient or an ordi-
narily appropriate place to park, but because its place-
ment would alert drivers to the danger ahead.’’
(Emphasis added.) Rivera v. Fox, supra, 20 Conn. App.
624. Under these circumstances, the court in Rivera
concluded that the state’s conduct in parking the vehicle
in a particular location so as to warn oncoming drivers
about debris in the roadway did not fall within the
limited waiver of sovereign immunity contained in § 52-
556. Id.
We next examined the scope and meaning of the
state’s sovereign immunity waiver in § 52-556 in Allison
v. Manetta, 84 Conn. App. 535, 854 A.2d 84 (Allison I),
cert. denied, 271 Conn. 931, 859 A.2d 582 (2004). In
Allison I, the driver of a tractor trailer that was proceed-
ing westbound on Route 44 collided with the plaintiff’s
eastbound vehicle when the tractor trailer driver
maneuvered the trailer over the double line into the
eastbound lane in order to pass a state DOT truck that
was partially parked within the westbound lane. Id.,
536–37. The DOT truck had stopped in this location
because the driver observed water washing out of a
driveway onto Route 44, and he was concerned that
the water would freeze on the roadway. Id., 541. In her
complaint, the plaintiff alleged that the DOT driver had
negligently stopped the truck in a manner that partially
obstructed the westbound lane and failed to use any
means of warning to alert drivers of the obstruction to
the westbound lane. Id., 536–37.
The state moved to dismiss the action, asserting that
the plaintiff’s claim did not fall within the state’s limited
waiver of sovereign immunity in § 52-556 because the
truck was parked and was not being operated at the
time of the collision. Id., 537. The court granted the
state’s motion to dismiss, and the plaintiff appealed. Id.
On appeal, this court reversed the trial court’s grant-
ing of the state’s motion to dismiss. Id., 536. In reaching
its conclusion that the court had improperly granted
the state’s motion to dismiss, this court emphasized
the following facts: (1) the truck the DOT worker was
operating on the date of the accident ‘‘was the means
of locomotion he used to follow a designated route
of state highway to correct maintenance problems he
discovered’’; (2) that ‘‘he parked the truck with its motor
running adjacent to the driveway so that he could exit
the truck to perform the required maintenance’’ to pre-
vent the water from entering the road; and (3) he had
not positioned the truck in a manner to protect himself
while he dug a ditch on the shoulder of the road. Id.,
541. This court then held: ‘‘On this set of facts, we
conclude, as a matter of law, that [the DOT worker]
was operating the truck within the meaning of § 52-
556. He had parked the truck as an activity incident to
moving it from one place to another along his desig-
nated maintenance route to fulfill his responsibilities
for the [state]. There was, consequently, a temporal
congruence between the operation of the truck and the
plaintiff’s injury.’’ Id., 541–42. Accordingly, this court
remanded the case for further proceedings.
On remand, the plaintiff prevailed against the state
after a jury trial. Allison v. Manetta, 284 Conn. 389,
391, 933 A.2d 1197 (2007) (Allison II). The state again
appealed to this court, and our Supreme Court trans-
ferred the appeal to itself. Id., 391 n.2. Before the
Supreme Court, the state contended that the trial court
improperly failed to instruct the jury that if the state
truck was being used as a warning device or protective
barrier at the time of the accident, the state maintained
its sovereign immunity because the truck was not being
‘‘operated’’ for purposes of § 52-556. Id., 395. In
response, the plaintiff contended that the trial court
properly instructed the jury in accordance with the
Appellate Court’s earlier decision in Allison I.
The Supreme Court explicitly agreed with the state,
concluding that the trial court’s instructions ‘‘did not
provide the jury with proper guidance and a clear under-
standing of the issues’’ because the court failed to
explain to the jury that it ‘‘should consider whether
the truck was being used as a warning device or as a
protective barrier, and, if the jury found that it was, it
must find for the [state] because the truck was not
being ‘operated’ under § 52-556.’’ Id., 400.
Although our Supreme Court in Allison II did not
explicitly overrule this court’s decision in Allison I, it
was critical of Allison I in at least two important
respects. First, the Supreme Court noted that the Appel-
late Court’s statement in Allison I that ‘‘as a matter of
law . . . [the state employee] was operating the truck
within the meaning of § 52-556’’ was ‘‘overly broad’’
because operation was an issue to be decided by the
trier of fact. (Internal quotation marks omitted.) Allison
II, supra, 284 Conn. 401–402 n.9. Second, the trial court
should not have concluded that it was bound by the
Appellate Court’s conclusion in Allison I that the truck
had been parked ‘‘as an activity incident to moving
it from one place to another along the [employee’s]
designated maintenance route’’ because that conclusion
was based on pretrial deposition testimony rather than
on an actual factual finding by the trier of fact. (Internal
quotation marks omitted.) Id., 401.
Taken together, this court’s decision in Rivera and
our Supreme Court’s decision in Allison II can be dis-
tilled into the following legal principles that the trier
of fact, in applicable cases, must follow: (1) the state
may be held liable pursuant to § 52-556 only if the state
vehicle that is alleged to have caused the accident was
being operated at the time of the accident; (2) a motor
vehicle ordinarily is still being operated if it is parked
incident to travel, that is, in a convenient or an ordinarily
appropriate place to park; and (3) the state may still not
be sued or held liable if the state vehicle is positioned or
parked in a particular location so as to warn drivers as
to the danger ahead or to serve as a protective barrier.
The third principle is dictated by logic, principles of
statutory construction involving statutes in derogation
of sovereign immunity, and the precedent discussed
previously in this opinion. A motor vehicle that is being
used as a warning device or protective barrier necessar-
ily will need to be driven to and then parked in a location
that the state, in the exercise of its discretion and judg-
ment, believes is an appropriate location for the vehicle
to serve as a warning device to other motorists or as
a protective barrier for its operator, other state employ-
ees, or anyone else using the roadways. Accordingly,
even if the state employee who uses the truck as a
warning device or protective barrier negligently
chooses a location to park the vehicle so that it may
be used as a warning device or protective barrier at
that location, the state is shielded by sovereign immu-
nity. This is necessarily so because such a location is
chosen not because it is a convenient or ordinarily
appropriate place to park, but because it is believed to
be a suitable location so that the vehicle can serve as
a warning device or other protective barrier. Finally,
negligence claims that arise out of the manner in which
a state truck was used as a warning device or protective
barrier are also barred by sovereign immunity. For
example, if the state places a vehicle in a location and
illuminates its arrow board to serve as a traffic control
device and/or warning signal, the state may not be held
liable even if, in the exercise of due care, the traffic
should have been directed in a different direction than
that chosen by the state.
In light of these principles, we turn then to the specific
jury instructions given by the court in this case to deter-
mine whether they provided the jury proper guidance
and a clear understanding of the issues that it was to
decide. The court instructed the jury as follows:
‘‘I’m going to talk to you about sovereign immunity
. . . and the claims that the plaintiffs have brought
against the state of Connecticut. Now, our law provides
that as a general rule under the doctrine of sovereign
immunity, the state cannot be sued unless by legislative
enactment it consents to be sued. Connecticut General
Statutes § 52-556 creates a cause of action against the
state and represents a statutory exception to the com-
mon-law general rule of sovereign immunity. Connecti-
cut General Statutes § 52-556 provides in relevant part
that any person injured in person or property through
the negligence of any state official or employee when
operating a motor vehicle owned by the state shall have
a right of action against the state to recover damages
for such injury. The plaintiffs have alleged that [Morey]
was negligent when he was operating the state owned
vehicle and therefore have sued the state of Connecticut
pursuant to [this statute].
‘‘Our law defines when operating a motor vehicle
within the context of the statute as follows: Operation
of a motor vehicle occurs when there is a setting in
motion of the operative machinery of the vehicle, or
there is movement of the vehicle, or there is a circum-
stance resulting from that movement or an activity inci-
dent to the movement of the vehicle from one place to
another. Thus, the term ‘operation’ can include situa-
tions in which the vehicle is parked or standing still
even if [Morey] was outside of the vehicle at the time
of the accident, provided that, such a position was inci-
dent to travel. The term ‘incident’ or ‘incidental’ is
defined as being likely to ensue as a chance or minor
consequence or occurring merely by chance or without
intention or calculation. . . .
‘‘Thus, the plaintiffs must first prove by a preponder-
ance of the evidence that [Morey] was operating the
state vehicle on September 2, 2008, pursuant to § 52-
556 as I have just defined operation for you. If you find
that the plaintiffs have proven by a preponderance of
the evidence that [Morey] had parked the state owned
truck as an activity incident to or related to moving it
from one place to another along his designated mainte-
nance route to fulfill his responsibilities, you would
then find that he was operating that vehicle under the
statute even if [Morey] was standing outside the vehicle
at the time of the accident, provided that such a position
was incident to travel. However, you must also consider
whether the truck was being used as a warning device
or a protective barrier. If you find that the state owned
truck was being used as a warning device or protective
barrier, then you must find that it was not being oper-
ated under § 52-556 and you would then find for the
defendant and proceed no further. If you find, however,
that [Morey] was operating the truck as I have defined
for you, you must then determine whether the plaintiffs
have proven by a preponderance of the evidence that
[Morey] negligently operated the truck.’’
Although the court’s instructions did inform the jury,
pursuant to Rivera, that the state could not be held
liable if it concluded that the truck was being used as
a warning device or protective barrier, the instructions
did not provide proper guidance to the jury on this issue
for several reasons. First, the instructions did not ask
the jury to analyze whether Morey parked the vehicle
in the particular place that caused the accident because
it was a convenient or an ordinarily appropriate place
to park or, on the other hand, whether he chose that
location because he believed (negligently or otherwise)
that it was an appropriate place to position the vehicle
so that it could serve as warning device or protective
barrier.
Second, the court’s instructions did not account for
the possibility that the location at which the vehicle
was parked might be a convenient or an ordinarily
appropriate place to park along Morey’s designated
maintenance route, but also was chosen because its
placement there would alert drivers to the danger
ahead. Instead, the last two sentences of the instruc-
tions quoted previously treated the possibility that the
vehicle was ‘‘parked incident to travel’’ as necessarily
in conflict with or excluding the possibility that it was
also positioned or parked in that location so as to serve
as a warning device or protective barrier. It appears
that the trial court intended its instructions to be under-
stood in that manner because in its memoranda of deci-
sion rejecting the motions to set aside the verdicts,
the court stated: ‘‘The defendant’s interpretation of the
statute would preclude the jury from finding that the
DOT employee was operating a vehicle at any time,
even when that employee is behind the wheel, with
the engine running and the vehicle stopped incident to
travel, if the state could also show that it was being
used to slow traffic and/or as a barrier. In other words,
in submitting its requests to charge, the defendant
sought to have this court adopt a definition of ‘opera-
tion’ that would preclude a finding of operation any
time a vehicle is parked, had its warning lights on to
slow traffic and/or [or is being] used as a barrier, even
though the truck was parked incident to travel.’’ Con-
trary to the trial court’s conclusion, however, this pre-
cise result is compelled by the language of Rivera and
Allison II, and the principle of statutory construction
that statutes in derogation of sovereign immunity must
be construed narrowly to effectuate the least, rather
than the most, change in sovereign immunity.
Third, the court’s instructions were likely to mislead
or confuse the jury on the scope of the state’s sovereign
immunity because the specific allegations of negligence
on which the court instructed the jury included claims
that plainly sought to hold the state liable for negligence
in the manner in which it used the truck as a warning
device or protective barrier. For example, the court
instructed the jury that it could hold the state liable if
it found that Morey: (1) ‘‘placed the [state’s] vehicle on
the highway so as to direct traffic to the middle and
left lanes, thereby creating a dangerous bottleneck’’;
(2) ‘‘used the [state’s] vehicle to close a lane of traffic
without proper warnings or safeguards, making the
highway dangerous for motorists in the right lane and
middle lane of travel’’; (3) ‘‘placed the defendant’s vehi-
cle on the highway so as to direct traffic toward debris
in the road, thereby creating a dangerous bottleneck’’;
or (4) ‘‘failed to follow established safety procedures
and/or standards for diverting traffic on the highway
while operating a state owned motor vehicle . . . .’’
(Emphasis added.) After reviewing these specific alle-
gations of negligence the court then stated to the jury:
‘‘If you find that [Morey] failed to exercise reasonable
care while operating the state owned vehicle, in that
he operated said vehicle in one or more of the ways
alleged by the plaintiffs, then you may find that [Morey]
was negligent while operating the state owned vehicle
as set forth in § 52-556 and therefore find the state of
Connecticut negligent.’’ (Emphasis added.)
In other words, this language suggested to the jury
that it could find that the state operated the vehicle by
the very conduct that would also constitute using the
vehicle as a warning device or protective barrier. Most,
if not all, of these specifications of negligence read to
the jury by the court specifically permitted the jury to
hold the state liable for a failure to exercise due care
in the manner in which it used the truck as a warning
device or protective barrier despite the fact that the
court had just finished instructing the jury that it could
not hold the state liable if the state truck was used as
a warning device or protective barrier. Moreover, the
language emphasized in the preceding paragraph, which
immediately followed the description of the specific
allegations of negligence, suggested to the jury that the
vehicle was necessarily being operated when it was
used in one or more of the ways alleged by the plaintiffs.
Thus, the submission of these improper specifications
of negligence was likely to have further confused the
jury regarding the legal distinction between the opera-
tion of the vehicle (parked incident to travel), which
could result in the imposition of liability on the state,
and the use of the vehicle as a warning device or protec-
tive barrier, which would not permit the imposition
of liability.16
Fourth, the clarity of these instructions was also sig-
nificantly undermined by the court’s decision to permit
the plaintiffs’ expert witness to opine to the jury that
Morey: (1) failed to comply with traffic control safety
standards by positioning his truck in the left lane and
directing traffic, with the use of his arrow panel, toward
the center lane that was blocked; and (2) should have
positioned his vehicle directly behind the debris and
activated his arrow panel in both directions. The court’s
decision to permit the jury to hear expert testimony
regarding the negligent use of the vehicle as a warning
device or protective barrier was likely to have further
confused the jury’s understanding of the court’s prior
instruction that sovereign immunity barred any claims
arising out of the state’s use of the vehicle as a warning
device or protective barrier.
Finally, our conclusion that the instructions did not
provide the jury proper guidance and a clear under-
standing of the scope of the state’s sovereign immunity
is buttressed by the fact that the jury submitted the
following note to the court during deliberations: ‘‘We
need clarification of the statute 52-556 regarding the
state vehicle being used as a protective barrier or a
warning device.’’ The court declined to provide the jury
any clarification. Instead, it simply directed the jury’s
attention to its earlier charge and to the language of
the statute, and stated that ‘‘that’s the extent of my
response to you.’’ The jury’s specific use of the term
‘‘clarification’’ strongly suggests that it was having diffi-
culty understanding the intersection of the court’s
instructions on the meaning of operation and the use
of the state vehicle as a warning device or protective
barrier.17 The court’s decision to simply refer the jury
back to its prior instruction did not ameliorate the jury’s
struggle to make sense of these important concepts.
In sum, because the jury did not receive complete
and accurate instruction on the key issue of the scope
of the state’s sovereign immunity, we must conclude
that the jury was likely misled.
II
We next turn to the state’s claim that the court
improperly denied its motions to set aside the verdicts
and for judgments notwithstanding the verdicts. Specifi-
cally, the state argues that the court should have granted
its motions because the evidence submitted to the jury
was insufficient to prove that (1) the presence of the
state vehicle in the right lane was the proximate cause
of the accident and (2) that the vehicle was not being
used as a warning device or protective barrier.
Even though we have already concluded that the
court improperly instructed the jury on a critical issue
in the case, we reach the state’s insufficiency of the
evidence claim because, if it were to prevail on this
claim, the appropriate remedy would be to remand the
cases with direction to render judgments in favor of
the state. In light of the deferential standard of review
applicable to motions to set aside a verdict and for
judgment notwithstanding the verdict, however, we
conclude that the court properly rejected the state’s
insufficiency of the evidence claims.
The moving party ‘‘must overcome a high threshold
to prevail on either a motion for a directed verdict or
a motion to set aside a judgment. Directed verdicts are
not favored. . . . A trial court should direct a verdict
only [if] a jury could not reasonably and legally have
reached any other conclusion. . . . In reviewing [a]
trial court’s decision [whether] to direct a verdict in
favor of a defendant we must consider the evidence in
the light most favorable to the plaintiff. . . . [The trial
court] should not set aside a verdict [if] it is apparent
that there was some evidence [on] which the jury might
reasonably reach its conclusion . . . . Ultimately,
[t]he decision to set aside a verdict entails the exercise
of a broad legal discretion . . . that, in the absence of
clear abuse, we shall not disturb.’’ (Citation omitted;
internal quotation marks omitted.) Hicks v. State, 287
Conn. 421, 432, 948 A.2d 982 (2008).
With respect to the state’s contention that the jury,
on the evidence presented, could not have reasonably
and legally found that the collisions and injuries were
proximately caused by the presence of the vehicle in
the right lane, the state asserts that there is no credible
evidence that the state’s vehicle was not visible to
oncoming drivers such that they would have had diffi-
culty in changing lanes to pass on the left. In so arguing,
however, the state invites this court to make credibility
determinations and ignore the testimony of at least one
of the witnesses, Clifford, who testified, in essence, that
he did not have adequate warning of the presence of
the state’s vehicle in the right lane. Credibility determi-
nations are, of course, for the trier of fact to make, not
this court. See Schoenborn v. Schoenborn, 144 Conn.
App. 846, 851, 74 A.3d 482 (2013).
Moreover, one of the plaintiffs’ theories of causation,
which is supported by the evidence in the record, was
that Morey’s decision to position the truck in the right
lane forced vehicles to move toward the partially
obstructed center and left lanes, thereby creating a bot-
tleneck, and, thus, was an actual and substantial cause
in bringing about the injuries. If Morey had parked the
state vehicle in the right travel lane solely incident to
travel, in that it was a convenient or an ordinarily appro-
priate place to park, and did not choose that location
so that the vehicle could serve as a warning device or
protective barrier, then the jury, if properly instructed in
accordance with sovereign immunity principles, legally
would have been free to conclude that Morey’s conduct
was a proximate cause of the accident and resulting
injuries.
Finally, the state contends that the court should have
directed verdicts in its favor because, under the facts
of the cases, the jury, if it had been properly instructed,
logically could have reached only one conclusion, that
is, that the state vehicle was being used as a warning
device and to provide a protective barrier at the time
of the accident. One of the specifications of negligence
that was submitted to the jury asserted that Morey
caused the state’s vehicle to obstruct moving traffic on
the highway, making it unsafe for other motorists. This
narrow assertion, if proven, could allow the jury to
conclude that Morey parked the vehicle solely incident
to travel while he performed his maintenance duties
and that it was not positioned as a warning device or
protective barrier. Although a large number of wit-
nesses did testify that Morey turned on the left direc-
tional arrow before the accident, at least two witnesses
testified that they did not recall seeing the directional
arrow illuminated. On this record, if the jury credited
those witnesses, and if the jury had been properly
instructed on the applicable law, it is reasonably possi-
ble that the jury could have ultimately concluded that
the state could be held liable without violating sovereign
immunity. Thus, in light of the deferential standard
applicable to review of rulings on motions for a directed
verdict, we cannot conclude that the court abused its
discretion by denying the motions to set aside the ver-
dicts and for judgments notwithstanding the verdicts.
The judgments are reversed and the cases are
remanded for further proceedings consistent with
this opinion.
In this opinion the other judges concurred.
1
We refer in this opinion to Rodriguez in her representative capacity and
to Tremper as the plaintiffs, and by name where necessary.
2
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.’’
3
The state also claims on appeal that the court improperly (1) permitted
the plaintiffs’ expert to testify regarding theories of liability that do not fall
within the state’s waiver of sovereign immunity, and (2) denied the motions
to set aside the verdicts because the evidence was insufficient to prove that
the positioning of the state vehicle was the proximate cause of the accident
and that the vehicle was not being used as a warning device or protective
barrier. In light of our conclusion that the court’s instructions were improper,
we do not reach the propriety of the testimony of the plaintiffs’ expert
witness as a separate claim of error. We do briefly discuss, however, the
expert’s testimony in light of our conclusion that the court’s decision to
permit such testimony was likely to have generated additional confusion
over the meaning of its instructions regarding the scope of the state’s waiver
of sovereign immunity. The state’s claims regarding the sufficiency of the
evidence are discussed in part II of this opinion.
4
One or more of the occupants of the third vehicle filed a personal
injury action arising out of the accident, but that action was subsequently
withdrawn and is not at issue in these appeals.
5
The loss of consortium claim was subsequently withdrawn by Rodriguez
after the state moved to dismiss it on sovereign immunity grounds. All of
Rodriguez’ remaining claims were asserted in a representative capacity.
6
Because Tremper and Rodriguez had settled and released their claims
against Clifford and B.C. Trucking, Inc., sometime before July 2, 2012, the
state filed this notice, rather than an apportionment complaint, pursuant to
General Statutes § 52-102b (c), which provides in relevant part: ‘‘If a defen-
dant claims that the negligence of any person, who was not made a party
to the action, was a proximate cause of the plaintiff’s injuries or damage
and the plaintiff has previously settled or released the plaintiff’s claims
against such person, then a defendant may cause such person’s liability to
be apportioned by filing a notice specifically identifying such person . . .
and the fact that the plaintiff’s claims against such person have been settled
or released. . . .’’
7
Importantly, our cases have long recognized that sovereign immunity
from suit protects the state from being ‘‘required to litigate at all, as opposed
to its right not to be ultimately subjected to liability . . . .’’ Shay v. Rossi,
253 Conn. 134, 167, 749 A.2d 1147 (2000), overruled in part on other grounds
by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003). We note that
the state did not move to dismiss these actions at their outset despite the
fact that, if the doctrine of sovereign immunity applies in these cases, the
state should not have been required to litigate these claims at all. Instead,
the state raised sovereign immunity as a special defense. As a result, delaying
resolution of the colorable claims of sovereign immunity in these cases until
the completion of trial may well have vitiated, at least in part, the doctrinal
underpinnings of sovereign immunity, that is, ‘‘that the subjection of the
state and federal governments to private litigation might constitute a serious
interference with the performance of their functions and with their control
over their respective instrumentalities, funds and property.’’ (Internal quota-
tion marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 328, 709 A.2d 1089
(1998). In fact, our Supreme Court has recently recognized that, unlike
unresolved factual issues concerning a governmental immunity claim, which
can be decided by a jury, immunity from suit on the basis of sovereign
immunity implicates subject matter jurisdiction and should be resolved prior
to trial. Edgerton v. Clinton, 311 Conn. 217, 227 n.9, 86 A.3d 437 (2014).
8
We also note that the state did not move to strike these actions from
the jury trial list. As our Supreme Court noted in Canning v. Lensink, 221
Conn. 346, 354, 603 A.2d 1155 (1992), ‘‘[s]ome statutory waivers of sovereign
immunity enacted by the legislature expressly preclude a right of jury trial.
. . . One statute provides such a right explicitly. . . . In the absence of
such a specification, we have concluded that the legislature intended that
the action should be tried without a jury. When the state, by statute, waives
its immunity [from] suit . . . the right to a jury trial cannot be implied,
but rather, must be affirmatively expressed.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) We are cognizant that § 52-556
appears to contain no language, express or implied, that grants a right to
a jury trial to a claimant seeking to recover under its provisions.
The failure of the state to seek dismissal of these actions at the outset
of the proceedings, and to allow a jury to determine critical factual issues
pertaining to the state’s sovereign immunity, has complicated this court’s
ability to assess the applicability of the doctrine in these cases in two ways.
First, because sovereign immunity implicated the trial court’s subject matter
jurisdiction over the actions, the court never made any specific factual
findings, following an evidentiary hearing on a motion to dismiss, that were
necessary to determine whether these actions properly fell within the state’s
limited waiver of sovereign immunity from suit such that the cases could
proceed to trial. Second, because the cases were ultimately submitted to a
jury without any jury interrogatories, this court’s ability to determine
whether the jury found sufficient facts to bring these actions within the
state’s waiver of sovereign immunity is much more difficult. See footnote
16 of this opinion. In any event, we need not decide at this juncture whether
a plaintiff bringing an action pursuant to § 52-556 is entitled to a jury trial.
9
The video, which we have viewed, was marked as plaintiffs’ exhibit 28.
10
Although a number of witnesses testified that Morey illuminated the
warning lights on the vehicle, including the left directional arrow on the
arrow board, before the accident occurred, two of the plaintiffs’ witnesses,
Hugo Zecuamunoz and Clifford, testified that they did not see the flashing
left directional arrow before the accident. (Clifford did testify that he saw
other lights flashing on the DOT truck.) Thus, the plaintiffs assert on appeal
that it was factually disputed at trial whether the directional arrow was
activated at the time of the accident. This assertion, however, is patently
inconsistent with the plaintiffs’ theory of the case and the arguments they
made to the jury that Morey’s left directional arrow was illuminated before
the accident and that it was negligent of him to direct traffic toward the
center and left lanes based on the facts and circumstances. For example,
in his opening statement, counsel for Rodriguez stated to the jury: ‘‘What
Mr. Morey did is simply not safe. What he did do was position himself
straddling the shoulder and the right lane, making that lane impassable. He
then puts on his lights and that left arrow, and he directs traffic into the
center . . . .’’ He repeated this claim during closing arguments. Counsel
for Tremper asserted during closing arguments: ‘‘[Morey] chose to obstruct
the only unobstructed lane and turn the arrow on directing them towards
the debris . . . .’’ He also argued: ‘‘[T]urning on that arrow light is what
caused this bottleneck . . . .’’ Indeed, most of the plaintiffs’ theories of
liability were dependent upon the plaintiffs’ factual contention that Morey
had illuminated the left directional arrow after positioning the vehicle in
the right lane. The plaintiffs, however, may not now have it both ways. It
is well settled that a party ‘‘may not try its case on one theory and appeal
on another.’’ Mellon v. Century Cable Management Corp., 247 Conn. 790,
799, 725 A.2d 943 (1999).
11
The court, however, indicated that it would not permit Bragdon to testify
on the ultimate issues of whether Morey was negligent or whether his
negligence was the proximate cause of the collision between Clifford and
the other vehicles.
12
The state conceded that, at the time of the accident, it owned and
insured the truck used by Morey.
13
The court subsequently ordered that Tremper’s economic damages be
remitted to $151,694.14. That ruling is not challenged on appeal.
14
This claim was preserved for appeal because the state submitted pro-
posed requests to charge and took an exception to the charge given by the
court on the grounds that it did not properly guide the jury on the scope
of the state’s sovereign immunity from suit. Specifically, the state asked the
court to instruct the jury as follows: ‘‘If you find from the evidence that the
plaintiffs have proven that [Morey] parked the truck incident to his driving
that truck along his regular patrol route to fulfill his job duties of removing
debris from the highway, that is, it was parked where it was because that
was a convenient or an ordinarily appropriate place to park to permit Mr.
Morey to remove the debris from the highway, then you may find that there
was operation of that vehicle under General Statutes § 52-556. On the other
hand, if you find from the evidence that at or about the time of the subject
accidents the service patrol truck was being used as a traffic control device
to warn oncoming motorists of the presence of debris in the highway to
slow down traffic because of that debris and/or to permit [Morey] to retrieve
that debris, to close the right lane or that it was being used as a barrier to
protect [Morey] while exiting the service patrol truck into the right lane for
purposes of removing the debris from the highway, then you must find that
the service patrol truck was not being operated within the meaning of
General Statutes § 52-556 and return verdicts in favor of the [state].’’
15
Rivera was decided before Envirotest Systems Corp. v. Commissioner
of Motor Vehicles, supra, 293 Conn. 391, in which our Supreme Court held
that resort to extratextual sources is inappropriate to resolve any ambiguities
regarding the scope of a legislative waiver of sovereign immunity.
16
It is true, as the plaintiffs suggest, that one or more of the other specifica-
tions of negligence that were submitted to the jury do not as directly impli-
cate the state’s negligent use of the state vehicle as a warning device or
protective barrier but instead arguably focus on Morey’s alleged negligence
in parking the vehicle solely as an incidence to his travel to the scene. For
example, the court instructed the jury that the state could be held liable if
Morey ‘‘stopped and/or positioned [state’s] vehicle on a public highway in
a dangerous manner without proper warning and safeguards . . . .’’ On its
face, this allegation could be construed simply as a claim that Morey failed
to exercise reasonable care in choosing an appropriate place to park incident
to travel. Even this specification of negligence, however, does not necessarily
preclude the possibility that this alleged conduct was performed as part
and parcel of the use of the truck as a warning device or protective barrier.
We reject the plaintiffs’ attempted reliance on the general verdict rule.
The general verdict rule provides that ‘‘if a jury renders a general verdict
for one party, and no party requests interrogatories, an appellate court will
presume that the jury found every issue in favor of the prevailing party.’’
(Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786,
626 A.2d 719 (1993). Under such circumstances, if any ground that supports
the verdict is not successfully attacked on appeal, the judgment must be
affirmed. Id. Contrary to the plaintiffs’ claim here, decisions of our Supreme
Court have repeatedly emphasized that the general verdict rule does not
apply to different specifications of negligence. See, e.g., id.; Pedersen v.
Vahidy, 209 Conn. 510, 513, 552 A.2d 419 (1989). The plaintiffs’ attempted
reliance on Socci v. Pasiak, 137 Conn. App. 562, 574–75, 49 A.3d 287, cert.
denied, 307 Conn. 919, 54 A.3d 563 (2012), does not advance their general
verdict claim because that case did not involve different specifications of
negligence, as in the present case, but instead involved application of the
general verdict rule to different causes of action pleaded in different counts
of a complaint.
17
Clarify means ‘‘to free of confusion’’ or ‘‘to make understandable.’’ Mer-
riam-Webster’s Collegiate Dictionary (11th Ed. 2003).