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Juchniewicz v. Bridgeport Hospital12/7/2004
The court denied the motion. After the close of evidence, the court held a charging conference in which the plaintiff requested that the court "charge out" contributory negligence. The court denied the request and did not charge the jury on contributory negligence. After the jury instructions were given, the plaintiff again requested that the court charge the jury that the plaintiff's decedent is presumed, pursuant to General Statutes § 52-114, to have been in the exercise of reasonable care. The court again denied the plaintiff's requested charge. The plaintiff next filed a motion regarding contributory negligence, asking the court either to instruct the jury on the presumption regarding the exercise of due care of the plaintiff's decedent or, in the alternative, to allow the defendant to amend his answer to claim that the plaintiff's decedent had been contributorily negligent. The court denied the motion. After the jury returned a verdict in favor of the defendant, the plaintiff filed a motion to set aside the verdict, which the court denied. This appeal followed.
I.
We first turn to the plaintiff's argument that the court improperly failed to instruct the jury that the plaintiff was entitled to the presumption, pursuant to § 52-114, that the plaintiff's decedent was acting in the exercise of reasonable care. In essence, the plaintiff claims that he was entitled to the requested charge as a matter of law.
Because the interpretation of a statute, as well as its applicability to a given set of facts and circumstances, involves a question of law, our review is plenary. Commissioner of Social Services v. Smith, 265 Conn. 723, 734, 830 A.2d 228 (2003).
Our review of the record leads us to conclude that the court's determination not to give the requested instruction was a correct application of the law and was reasonably based on the evidence. We are unpersuaded by the plaintiff's contrary assertion that, under the language of the first sentence of § 52-114, the court should have instructed the jury that the plaintiff's decedent in this case should be presumed to have been acting reasonably because the first sentence of the statute does not exist in a vacuum and because the defendant had not put at issue the contributory negligence of the plaintiff's decedent. In construing the statute, our Supreme Court has stated that " he provisions of the statute are not severable, but all its terms are intended to carry out one purpose, to place the duty of pleading and proving contributory negligence upon the defendant." Hatch v. Merigold, 119 Conn. 339, 343, 176 A. 266 (1935); see also Petrillo v. Maiuri, 138 Conn. 557, 563, 86 A.2d 869 (1952); Borkowski v. Sacheti, 43 Conn. App. 294, 326-27, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). Thus, the presumption of a plaintiff's reasonable care is proper for the jury to consider only when a defendant affirmatively pleads contributory negligence. Cf. Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 558, 616 A.2d 819 (1992).
In reaching that conclusion, we do not cover new decisional ground. Borkowski involved a medical malpractice case in which the defendant did not plead contributory negligence, but did introduce evidence tending to prove that the plaintiff's decedent had failed to attend to his own medical needs reasonably. Borkowski v. Sacheti, supra, 43 Conn. App., 315. On appeal, the plaintiff argued that the trial court improperly failed to instruct the jury that the plaintiff's decedent should be presumed to have been acting with reasonable care. Id., 316-17. We upheld the court's jury charge, reasoning that the statutory scheme of § 52-114 permits a jury instruction regarding the presumption of
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