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*********************************************** 
LA TANYA AUTRY v. BRENDAN HOSEY ET AL.

(AC 42869)

Lavine, Prescott and Moll, Js.

Syllabus

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 suffered, the judgment with respect to the award of noneconomic damages

was reversed and the matter was remanded for a new hearing in

damages.

Argued June 29—officially released October 13, 2020

Procedural History

Action to recover damages for personal injuries sustained 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 proceedings.

Audrey C. Kramer, assistant corporation counsel,

for the appellants (defendants).

Stephen R. Bellis, for the appellee (plaintiff).
Opinion

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 necessary evidence to find that pedestrians suffer greater

emotional trauma when struck by a vehicle than occupants 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 waiting 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

injuries.

‘‘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 circumstances. 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 significant 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 accidents 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 damages on the clearly erroneous factual finding that pedestrians suffer greater emotional trauma than the occupants 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 determination of whether the factual findings of the trial court

are clearly erroneous or whether the decision is otherwise erroneous in law.’’ (Internal quotation marks omitted.) 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 quotation 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. Commerce 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, immediately 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 several 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 passengers . . . .’’ (Emphasis added.) A careful review of the

record and transcripts reveals that this factual statement, 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 unnecessary 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 considerations, 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 passenger 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 hypothetical scenario in which an individual in a car is unexpectedly hit by a police cruiser and suffers physical

injuries identical to the plaintiff in this case. To determine whether that individual necessarily would experience 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 sophisticated 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 Statutes] § 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 verification 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

omitted)).

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 discussed, 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 quotation 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 opinion 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.

1 The defendants also claim that the plaintiff failed to plead in her complaint 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 compensation determined by the trier of fact for all nonpecuniary losses including;

but not limited to, physical pain and suffering and mental and emotional suffering’’).