38 Conn. App. 852

Debra A. Dionne v. Paul Markie et al.

(13556)

Dupont, C. J., and Schaller and Spear, Js.

Argued May 31

decision released August 22, 1995

*853Mark E. Blakeman, with whom was Justine R. Tobis, for the appellant (plaintiff).

Lorinda S. Coon, for the appellees (defendants).

Spear, J.

The plaintiff appeals from the trial court’s judgment, rendered after a jury verdict, in favor of the defendants Paul Markie, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc.1 The disposi-tive issue is whether the trial court improperly failed to charge the jury on the statutory presumptions of family car use and general authority pursuant to General Statutes § 52-182.2 We find that the failure to so charge was plain error and reverse the judgment of the trial court. In view of this disposition, it is unnecessary to reach the plaintiff’s remaining claims.3

*854The. jury reasonably could have found the following facts. On May 3, 1992, a car driven by the defendant, Douglas Markie, collided with the plaintiffs car. The car driven by Douglas was owned by his father, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc. On the day of the accident, Douglas drove the car off the lot of the used car dealership owned by his father. The plaintiff sued Douglas as the operator of the car and Paul Markie, alleging an agency theory,4 as well as the family car doctrine pursuant to § 52-182.5

Pursuant to § 52-182, proof that the operator of a motor vehicle was the husband, wife, father, mother, son or daughter of the owner raises a presumption that the motor vehicle was being operated as a family car within the scope of a general authority from the owner. The burden then shifts to the defendant to rebut this presumption.

At trial, the court instructed the jury on the family car doctrine as a basis for the defendants’ liability pursuant to § 52-182.6 The trial court, however, failed to *855instruct the jury on the statutory presumption established in § 52-182. Instead, the jury was instructed that the burden was on the plaintiff to prove all elements of the family car doctrine.7 The plaintiff did not object to this jury instruction at trial.8 The jury returned a verdict for the plaintiff as against Douglas in the amount of $68,796.17, but found in favor of the other defendants. In response to a special interrogatory, the jury answered no to the following question: “Do you find that Douglas Markie had a general authority to use the car at the time of the accident?”9

*856The plaintiff claims that the trial court should have instructed the jury on the presumption set forth in § 52-182. The defendants assert that the plaintiff did not bring this claim to the trial court’s attention pursuant to Practice Book § 315,10 and, thus, did not adequately preserve it for appellate review. The plaintiff concedes that she did not comply with § 315, but asserts that she is entitled to plain error review.

“Where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error.” Aksomitas v. Aksomitas, 205 Conn. 93, 97, 529 A.2d 1314 (1987); see also Practice Book § 4185.11 “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980); Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 1316 (1987).

We have consistently held that plain error review is necessary where the trial court, in its instruction, overlooks a clearly applicable statute; State v. Hinckley, supra, 198 Conn. 88; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings *857& Loan Assn. v. Tucker, supra, 181 Conn. 609; In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990); or where the trial court fails to comply with a relevant statute. State v. Ellis, 32 Conn. App. 849, 853, 632 A.2d 47 (1993). In the present case, the trial court did instruct the jury on the family car doctrine, but failed to instruct the jury on the statutory presumption. The trial court, through its instruction, allocated the burden of proving that Douglas was acting under the general authority of the defendants to the plaintiff without the benefit of the statutory presumption. Pursuant to § 52-182, the plaintiff was entitled to a presumption on the issue of general authority upon proving that Douglas was the son of the owner of the car. The plaintiff, therefore, should have been relieved of the burden of going forward with evidence on the issue. The trial court’s failure to comply with the express statutory language found in § 52-182 necessitates a plain error review.

Our Supreme Court’s decision in Jancura v. Szwed, 176 Conn. 285, 407 A.2d 961 (1978),12 addresses a fact pattern that is almost identical to the facts here. In Jan-cura, the trial court instructed the jury on the family car doctrine but denied the plaintiff’s request to charge the jury on the statutory presumption. Id., 289. On appeal, the Supreme Court found that the trial “court denied [the plaintiff] the benefit of the statute . . . and that in the absence of a charge on the statutory presumption, it is likely that the jury believed that the plaintiff was required to bear the burden of proof as *858to the family car issue in the first instance, even if the jury did not believe the defendant’s evidence on the issue.” Id., 290-91. The'Supreme Court held that the failure to charge the jury on the presumption was reversible error. Id., 291. In the present case, we must presume that the jury believed that the plaintiff was required to bear the burden of proof in the first instance because the trial court explicitly charged the jury that “[ujnless the Plaintiff proves all three of these elements then she cannot recover against the defendants, Paul Markie or Markie Motors or T.K. Sales, under the family car doctrine.”

The defendants claim that the trial court’s failure to instruct the jury on the statutory presumption was not plain error. They contend that any error committed was harmless since there was sufficient evidence in the record to rebut the presumption that Douglas was acting under the general authority of the defendants. The defendants principally rely on the jury’s answer to the third special interrogatory relating to the family car doctrine. In response to the question, “Do you find that Douglas Markie had a general authority to use the car at the time of the accident?” the jury answered “No.” The defendants assert that the jury’s answer demonstrates that they offered sufficient evidence to rebut the presumption in § 52-182.

We are unpersuaded by this argument. “[Section 52-182] goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary. . . . The presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question ... if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does *859not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor.” (Citation omitted; internal quotation marks omitted.) Jancura v. Szwed, supra, 176 Conn. 290; see also Cook v. Nye, 9 Conn. App. 221, 227, 518 A.2d 77 (1986).

Without the benefit of the presumption, the jury may have reasonably concluded that the plaintiff failed to offer any evidence to prove that Douglas was acting under the general authority of the defendants, thereby necessitating a verdict for the defendants. The jury may not have even considered the defendants’ evidence in arriving at its verdict. Furthermore, the jury did not know that the presumption required a finding in favor of the plaintiff on this issue if it disbelieved the defendants’ evidence. Although the claim of instructional error here was not properly raised and preserved, as was the case in Jancura, the harm to the plaintiff here was as egregious. We conclude that the error was so obvious and so affected the fairness of the trial that it constituted plain error.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

Dionne v. Markie
38 Conn. App. 852

Case Details

Name
Dionne v. Markie
Decision Date
Aug 22, 1995
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38 Conn. App. 852

Jurisdiction
Connecticut

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