Autry v. Hosey

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                 (AC 42869)
                       Lavine, Prescott and Moll, Js.


The plaintiff sought to recover damages from the defendants, H and city of
   New Haven, for injuries she sustained when she was struck by a police
   cruiser driven by H while she was a pedestrian crossing a city street.
   Following a bench trial, the trial court found in favor of the plaintiff
   and awarded her economic and noneconomic damages. In calculating
   the noneconomic damages, the trial court found that the emotional
   trauma suffered by pedestrians struck by vehicles is ‘‘generally greater’’
   than that suffered by the occupants of a motor vehicle involved in an
   accident. On the defendants’ appeal to this court, held that the trial
   court’s factual finding that pedestrians struck by motor vehicles suffer
   greater emotional trauma than occupants of a motor vehicle involved
   in an accident was clearly erroneous; there was no evidence in the
   record to support the court’s finding and it was not a matter of common
   knowledge but, rather, a determination subject to verification by medical
   science and, in light of the weight given by the court to this finding in
   reaching its award of noneconomic damages and the lack of subjective
   complaints from the plaintiff regarding any emotional trauma she suf-
   fered, the judgment with respect to the award of noneconomic damages
   was reversed and the matter was remanded for a new hearing in
          Argued June 29—officially released October 13, 2020

                            Procedural History

   Action to recover damages for personal injuries sus-
tained as a result of the named defendant’s alleged
negligence, brought to the Superior Court in the judicial
district of New Haven and tried to the court, Abrams,
J.; judgment for the plaintiff, from which the defendants
appealed to this court. Reversed in part; further pro-
  Audrey C. Kramer, assistant corporation counsel,
for the appellants (defendants).
   Stephen R. Bellis, for the appellee (plaintiff).

   PRESCOTT, J. The defendants, Brendan Hosey and
the city of New Haven, appeal from the judgment of
the trial court rendered, following a trial to the court,
in favor of the plaintiff, La Tanya Autry. The plaintiff
brought the underlying negligence action against the
defendants seeking compensation for damages that she
sustained when she was struck by Hosey’s police
cruiser while she was a pedestrian crossing a city street.
On appeal, the defendants claim that the trial court, in
its order, improperly calculated noneconomic damages
for emotional trauma because the court lacked the nec-
essary evidence to find that pedestrians suffer greater
emotional trauma when struck by a vehicle than occu-
pants of a vehicle. We agree with the defendants and,
accordingly, reverse in part the judgment of the court
and remand the matter for a new hearing in damages.
   The court set forth the following facts and procedural
history in its memorandum of decision. ‘‘A short time
after 1 p.m. on October 20, 2015, the plaintiff was wait-
ing on the northwest corner of the intersection of
Chapel Street and High Street in New Haven. She had
just begun her lunch break from her job at the Yale Art
Gallery and was planning to head to Atticus Books,
which is located on the south side of Chapel Street. At
the same time, the defendant police officer’s cruiser
was stopped on High Street facing northbound, waiting
for the [traffic] light to change so that he could turn
left onto Chapel Street, which runs one-way westbound
in that area. The day was bright, with the sun behind
the defendant’s back as he waited for the [traffic] light.
The area of Chapel Street where the accident took place
was in the shade, the sun being blocked by the building
on the southwest corner of the intersection.
   ‘‘When the [traffic] light changed, the plaintiff began
her southbound cross of Chapel Street about a foot
west of the marked crosswalk. At the same time, the
defendant began to turn left into the southern lane of
Chapel Street. The plaintiff ‘cut the corner’ as she
crossed Chapel Street, so that she was approximately
five feet west of the crosswalk when she was struck
by the defendant’s police cruiser. The impact propelled
the plaintiff a foot or two from the point of impact. She
was taken by ambulance from the scene and suffered
pain to her entire body for a few days after the accident.
She suffered ongoing neck and back pain for . . .
approximately a year after the accident, but seems to
have generally recovered from any accident-related
  ‘‘Based on the plaintiff’s testimony and the medical
records admitted into evidence, the court is satisfied
that the [cost of the] plaintiff’s course of treatment
which totaled $5738 was reasonable under the circum-
stances. In addition, the court finds that the evidence
supports a finding that the plaintiff missed time from
work for a short period of time, suffering lost wages
in the amount of $626.01.
   ‘‘The plaintiff and the defendant both provided
entirely credible testimony, each appearing to accept
the fact that they bore some level of responsibility for
the accident. At the time of the accident, the plaintiff
was clearly outside the crosswalk by a relatively signifi-
cant distance and she should have realized that she was
in an area with significant vehicular traffic, particularly
at that time of day. The defendant, on the other hand,
was turning from a sunny area into a shady area, which
he should have recognized would diminish his ability
to see clearly. In addition, he was operating his vehicle
at a place and time where he should have expected
significant pedestrian traffic. Based on the foregoing,
the court assesses 65 percent of the liability for the
accident to the defendant and 35 percent to the plaintiff.
  ‘‘The court awards the full amount of $6364.83 in
economic damages . . . . As relates to the plaintiff’s
noneconomic damages, while evidence supports the
contention that the plaintiff has essentially returned to
her pre-accident level of functioning about a year after
the accident, her claims of pain during that period were
entirely credible. Perhaps more importantly, the court
is of the opinion that the emotional trauma suffered
by pedestrians struck by vehicles is generally greater
than that suffered by persons involved in auto acci-
dents as drivers or passengers and factors that into its
noneconomic damages award of $30,000.’’ (Emphasis
added.) This appeal followed. Additional facts will be
set forth as necessary.
   On appeal, the defendants claim that the court
improperly premised its award of noneconomic dam-
ages on the clearly erroneous factual finding that pedes-
trians suffer greater emotional trauma than the occu-
pants of a vehicle involved in a motor vehicle accident,
when there was no evidence in the record to support
that finding.1 We agree.
   We first set forth our standard of review. ‘‘On appeal,
the function of this court is limited solely to the determi-
nation of whether the factual findings of the trial court
are clearly erroneous or whether the decision is other-
wise erroneous in law.’’ (Internal quotation marks omit-
ted.) Baretta v. T & T Structural, Inc., 42 Conn. App.
522, 525, 681 A.2d 359 (1996). ‘‘The determination of
damages involves a question of fact that will not be
overturned unless it is clearly erroneous.’’ (Internal quo-
tation marks omitted.) Commerce Park Associates, LLC
v. Robbins, 193 Conn. App. 697, 735, 220 A.3d 86 (2019),
cert. denied sub nom. Robbins Eye Center, P.C. v. Com-
merce Park Associates, LLC, 334 Conn. 912, 221 A.3d
447 (2020), and cert. denied sub nom. Robbins Eye
Center, P.C. v. Commerce Park Associates, LLC, 334
Conn. 912, 221 A.3d 447 (2020). ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Ventres v. Goodspeed Airport, LLC,
275 Conn. 105, 142, 881 A.2d 937 (2005), cert. denied,
547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).
   At trial, the plaintiff offered evidence that, immedi-
ately after being struck by Hosey’s police cruiser, she
was stunned, lay on the ground crying, and experienced
intense pain throughout her body. Additionally, for sev-
eral months following the accident, she experienced
pain in her back and left knee. The court stated that it
found the plaintiff’s claims of pain to be credible. It
further stated that ‘‘[p]erhaps more importantly . . .
the emotional trauma suffered by pedestrians struck
by vehicles is generally greater than that suffered by
persons involved in auto accidents as drivers or passen-
gers . . . .’’ (Emphasis added.) A careful review of the
record and transcripts reveals that this factual state-
ment, which explicitly provided an important basis for
the court’s award of $30,000 in noneconomic damages,
is not supported by any evidence presented to the court.
    Contrary to the plaintiff’s argument, the trial court’s
statement is not a matter of common knowledge. See
Commissioner of Transportation v. Bakery Place Ltd.
Partnership, 83 Conn. App. 343, 348, 849 A.2d 896 (2004)
(‘‘[f]acts which are of common knowledge, that is, facts
so well known that evidence to prove them is unneces-
sary are proper subjects of judicial notice’’ (internal
quotation marks omitted)); see also State v. Tomanelli,
153 Conn. 365, 368, 216 A.2d 625 (1966) (‘‘proof by
evidence concerning a proposition may be dispensed
with where the court is justified, by general considera-
tions, in declaring the truth of the proposition without
requiring evidence from the party’’). Indeed, whether a
pedestrian who is struck by a motor vehicle generally
suffers greater emotional trauma than a driver or pas-
senger of a vehicle that is struck, is something that
would not be ‘‘within the knowledge of people generally
in the ordinary course of human experience’’ and is
subject to reasonable dispute. Conn. Code Evid. § 2.1
(c) (1) and commentary. To illustrate, consider a hypo-
thetical scenario in which an individual in a car is unex-
pectedly hit by a police cruiser and suffers physical
injuries identical to the plaintiff in this case. To deter-
mine whether that individual necessarily would experi-
ence less emotional trauma than the plaintiff would
require a level of psychological acumen that, in our
view, is not a matter of common knowledge.
  In addition, although expert testimony generally is
not required to prevail on a claim for mental suffering;
see Iino v. Spalter, 192 Conn. App. 421, 477–78, 218
A.3d 152 (2019); our Supreme Court has recognized that
‘‘[m]edical science has unquestionably become sophisti-
cated enough to provide reliable and accurate evidence
on the causes of mental trauma.’’ (Emphasis added;
internal quotation marks omitted.) Rivera v. Double A
Transportation, Inc., 248 Conn. 21, 27, 727 A.2d 204
(1999); see id., 31 (concluding that ‘‘mental suffering,
even if unaccompanied by physical trauma to the body,
constitutes an injury to the person under [General Stat-
utes] § 52-584’’). Here, the trial court based its award of
noneconomic damages on its unsubstantiated opinion
that one category of automobile related accidents
causes a greater amount of emotional trauma than
another. Such a determination, which is subject to veri-
fication by medical science, is beyond the field of the
ordinary knowledge of a trial judge. See Franchey v.
Hannes, 155 Conn. 663, 666, 237 A.2d 364 (1967) (‘‘[t]he
rule requiring expert testimony . . . applies when the
question involved goes beyond the field of the ordinary
knowledge and experience of a trial judge’’); Sickmund
v. Connecticut Co., 122 Conn. 375, 379, 189 A. 876 (1937)
(generally, ‘‘[t]he effects upon the human system of
diseases or injuries . . . are not within the sphere of
common knowledge’’ (internal quotation marks
   Because there was no evidence before the trial court
to support its factual finding regarding the ‘‘generally
greater’’ emotional trauma suffered by pedestrians who
are injured by a motor vehicle, and, as we have dis-
cussed, that fact is not a matter of common knowledge,
the finding is clearly erroneous. We now turn to the
issue of whether this improper factual finding warrants
reversal as to the award of noneconomic damages.
   ‘‘[W]here . . . some of the facts found [by the trial
court] are clearly erroneous and others are supported
by the evidence, we must examine the clearly erroneous
findings to see whether they were harmless, not only
in isolation, but also taken as a whole. . . . If, when
taken as a whole, they undermine appellate confidence
in the court’s [fact-finding] process, a new hearing is
required.’’ (Internal quotation marks omitted.) Osborn
v. Waterbury, 197 Conn. App. 476, 485, 232 A.3d 134
(2020). It is true that ‘‘[a] plaintiff may recover damages
in a personal injury action for pain and suffering even
when such pain and suffering is evidenced exclusively
by the plaintiff’s subjective complaints.’’ (Internal quo-
tation marks omitted.) Iino v. Spalter, supra, 192 Conn.
App. 477–78. Here, however, the plaintiff’s subjective
complaints of pain and suffering exclusively pertained
to the physical injuries she sustained as a result of the
collision. She did not complain or otherwise indicate
that she had experienced mental suffering, for instance,
by way of losing sleep, experiencing anxiety, or going
to see a therapist. Therefore, and in light of the trial
court’s explicit indication of the importance of its opin-
ion regarding the ‘‘generally greater’’ emotional trauma
suffered by pedestrians, we cannot conclude that the
error was harmless.
  The judgment is reversed only as to the award of
noneconomic damages and the case is remanded for a
hearing in damages consistent with this opinion; the
judgment is affirmed in all other respects.
      In this opinion the other judges concurred.
    The defendants also claim that the plaintiff failed to plead in her com-
plaint that she suffered emotional trauma. This argument, however, lacks
merit because the plaintiff alleged that as a result of the incident, she endured
pain and suffering. Emotional trauma is part of pain and suffering. See
General Statutes § 52-572h (a) (2) (‘‘‘noneconomic damages’ means compen-
sation determined by the trier of fact for all nonpecuniary losses including;
but not limited to, physical pain and suffering and mental and emotional suf-
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