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*********************************************** 
MICHELLE WILLIAMS v. STATE OF CONNECTICUT

(AC 40294)

Prescott, Bright and Bishop, Js.

Syllabus

The plaintiff sought to recover damages from the defendant state of Connecticut for personal injuries she sustained as a result of an accident involving

a motor vehicle owned and insured by the defendant. At the time of

the accident, an employee of the Department of Transportation, L, was

operating a department maintenance truck on the highway as part of a

crew performing pothole repair work. The plaintiff was cresting a hill

when the vehicle in front of her swerved to avoid colliding with the

truck operated by L, who at the time was following another state vehicle

that was performing the actual repairs. Thereafter, the plaintiff likewise

swerved to avoid the truck operated by L, but instead hit a guardrail,

became airborne, and then struck L’s truck. The plaintiff claimed that

her injuries were caused by the negligence of L and that the defendant

was liable pursuant to the statute (§ 52-556) that permits an action

against the state for injuries caused by the negligence of any state

employee when operating a motor vehicle owned and insured by the

state. In her complaint, the plaintiff alleged that L was negligent in a

number of ways, including, inter alia, by failing to provide adequate

warning signs to alert drivers of the presence of the department trucks

on the highway, and failing to follow department rules, procedures and

policies for operating the vehicle, diverting traffic and providing warning

signs. Subsequently, the defendant filed a special defense asserting that

the plaintiff’s alleged injuries were proximately caused by her own

negligence. Following a trial to the court, the court rendered judgment

in favor of the defendant, from which the plaintiff appealed to this

court. Held:

1. The plaintiff could not prevail on her claim that the trial court, in making

its ruling, framed the issue of the case too narrowly and improperly

failed to consider all of the instances of L’s negligence alleged in the

complaint; although the trial court’s memorandum of decision focused

almost entirely on whether warning signs had been in place at the

time of the accident, the record was devoid of anything to support the

plaintiff’s assertion that the trial court failed to consider the forms of

L’s negligence alleged in the complaint that were not dependent on the

presence of warning signs, as the court’s overall conclusion that the

plaintiff had failed to satisfy her burden of proving that her injuries

were more likely than not caused by L’s negligence, which largely was

based on its credibility determinations of the witnesses, was not

expressly limited to those instances of negligence alleged in the complaint that asserted a lack of warning signs, and reflected the trial

court’s general determination that the defendant’s version of the facts

surrounding the accident was more credible than that presented by the

plaintiff, and to the extent that the court’s memorandum of decision was

ambiguous, the plaintiff failed to seek clarification or ask for reargument,

and, in the absence of any evidence to the contrary, this court presumed

that the trial court disposed of the matter properly.

2. This court declined to review the plaintiff’s claim that the trial court

improperly failed to consider certain statutes, regulations, and highway

safety standards, the plaintiff having failed to preserve the claim for

appellate review by raising it before the trial court: contrary to the

plaintiff’s contention that she had properly preserved this issue by alleging in her complaint that L had failed to follow department rules, policies

and procedures, neither the plaintiff’s complaint nor her posttrial brief

cited to any particular statute or regulation with which L purportedly

failed to comply, and although the plaintiff made passing reference to

a certain statute (§ 14-298) and state regulation (§ 14-298-800) during a

pretrial colloquy with the court, she did not offer any evidence or testimony pertaining to any particular statute or regulation during trial;

moreover, although the plaintiff initially had sought, over the defendant’s

objection, to premark as exhibits certain excerpts of certain highway
safety standards, of which the trial court could not take judicial notice,

the trial court deferred ruling on that request, and the plaintiff did not

seek to introduce those excerpts into evidence at trial, did not question

any witness regarding those standards, and failed to refer to those

standards in her posttrial brief.

Argued November 27, 2018—officially released April 9, 2019

Procedural History

Action to recover damages for the defendant’s alleged

negligence, brought to the Superior Court in the judicial

district of Hartford and tried to the court, Elgo, J.;

judgment for the defendant, from which the plaintiff

appealed to this court. Affirmed.

Austin Berescik-Johns, with whom was David V.

DeRosa, for the appellant (plaintiff).

Edward P. Brady, with whom, on the brief, was Catherine M. Blair, for the appellee (defendant).
Opinion

PRESCOTT, J. The plaintiff, Michelle Williams,

appeals, following a bench trial, from the judgment

rendered on her complaint in favor of the defendant,

the State of Connecticut. In her one count complaint,

the plaintiff sought monetary damages for personal

injuries she had sustained as a result of the alleged

negligence of an employee of the Department of Transportation (department) while operating a state owned

vehicle. See General Statutes § 52-556.1 On appeal, the

plaintiff claims that the trial court improperly (1) failed

to consider all of the specifications of negligence that

she alleged in her complaint and (2) failed to consider

applicable statutes and highway safety regulations governing the actions of the department. We disagree with

the plaintiff’s first claim and conclude that the second

claim was not preserved for appellate review. Accordingly, we affirm the judgment of the court.

The following facts found by the court and procedural

history are relevant to our resolution of the plaintiff’s

appeal. ‘‘On January 24, 2012, around 10:40 a.m., the

plaintiff was driving north on Route 15 near exit 38 [in

Norwalk]. As she crested near the top of a hill, following

one car length behind the vehicle ahead of her in the

left lane, the vehicle before her swerved to avoid colliding with a [department] crash unit maintenance truck

driven by [department employee Terrence] Lynch,

which was . . . traveling slowly in the . . . left-hand

lane. Lynch had been part of a crew of [department]

workers who were performing pothole repair work on

the highway and was the second of two crash units

following the vehicle doing the actual repairs. John

McNamara, a witness to the accident, was traveling

southbound on the right-hand lane of Route 15 and

ascending the crest from the other direction when he

saw the collision. He observed [the] plaintiff’s car

swerve to avoid hitting Lynch’s truck, then hit the guardrail and [become] airborne, spinning 180 degrees when

it landed and struck Lynch’s truck. Trooper Carlo Marandola arrived at the scene and noted damage to the

respective vehicles as well as 170 feet of tire marks,

which were made by the plaintiff’s vehicle.’’

The plaintiff commenced the underlying negligence

action on January 6, 2014. She alleged that she had

sustained serious personal injuries, some permanent in

nature, as a result of the January 24, 2012 incident, and

that the direct and proximate cause of her injuries was

the negligence and carelessness of Lynch, who was a

state employee operating a motor vehicle owned and

insured by the state. The plaintiff alleged that Lynch

was negligent in one or more of the following ways:

‘‘a. he made unsafe movements upon the highway

incidental to the operation of a state owned motor

vehicle;
‘‘b. he caused [the] defendant’s vehicle to obstruct

moving traffic on the highway making it unsafe for

other motorists;

‘‘c. he failed to follow established safety procedures

and/or standards for diverting traffic on a highway while

operating a state owned motor vehicle;

‘‘d. he failed to take reasonable efforts to warn motorists of the presence of [the] defendant’s vehicle in the

travel portion of the highway;

‘‘e. he was inattentive and failed to keep a proper

lookout for other approaching motor vehicles on the

highway;

‘‘f. he unreasonably entered the left bound travel lane

from the highway shoulder and/or median grass area

where such movement could not be done with reasonable safety;

‘‘g. he failed to follow [department] rules, policy or

procedures in that a [department] truck was in the

highway without adequate flagman and/or signs to warn

of its presence;

‘‘h. he failed to provide adequate signs or warnings

to properly alert drivers of the presence of the [department] truck;

‘‘i. he operated the [department] truck at a low rate

of speed in the fast travel lane in an area over a hill

crest without adequate warning to alert drivers coming

over the hill crest creating a hazardous situation;

‘‘j. he failed to keep the [department] truck under

proper and reasonable control; and

‘‘k. he positioned the [department] truck in a dangerous location on the highway.’’

The defendant filed an answer denying all of the

allegations of negligence and asserting a special defense

of comparative negligence. The plaintiff submitted a

reply denying all allegations in the special defense.

The matter was tried to the court, Elgo, J., on August

10, 2016. The court heard testimony from McNamara,

Marandola, Lynch, and the plaintiff. After the parties

submitted posttrial briefs, the court issued its memorandum of decision finding in favor of the defendant on

the plaintiff’s complaint.

In its memorandum of decision, the court discussed

in detail one primary issue in dispute, namely, whether

the department had placed warning signs on the highway and on the maintenance truck operated by Lynch

in order to alert oncoming traffic of the road repair.

The court credited the testimony of Lynch that warning

signs were present. The court also credited photographic evidence showing that Lynch’s truck had an

illuminated arrow redirecting traffic around the maintenance vehicles. The court did not credit the testimony
of the plaintiff and McNamara that there had been no

signs warning of the road maintenance on either the

highway or on the defendant’s vehicle. The court

observed that the accident had occurred on the northbound side of the parkway and that McNamara had

been driving on the opposite, southbound side and had

exited the parkway prior to where any warning signs

would have been posted. The court found that ‘‘it was

far more likely that McNamara saw the dramatic accident in the seconds it took to pass by it, then got off

the highway and called 911 with little ability or occasion

to see or identify construction signs meant for northbound traffic.’’ The court further noted the plaintiff’s

admission that she had been driving one car length

behind a sports utility vehicle (SUV) with dark tinted

windows, which prevented her from seeing the traffic

in front of the SUV, meaning that it was more likely

than not that she would have been unable to observe

the warning signs.

The court did not individually discuss each of the

plaintiff’s separate specifications of negligence as set

forth in the complaint, but generally concluded that

the plaintiff had failed to satisfy her burden of proof.

Specifically, the court concluded: ‘‘In a civil case, the

plaintiff has the burden of proof by a preponderance

of the evidence. . . . In order to satisfy her burden,

the plaintiff must demonstrate that the defendant was,

more likely than not, negligent in one or more ways

alleged in her complaint. . . . This court, however,

cannot find the plaintiff’s version of the accident more

credible than the defendant’s version of the facts.

Because this court simply cannot resolve the disputed

issues in favor of the plaintiff, it enters a verdict in

favor of the defendant.’’ (Citations omitted; emphasis

added.) This appeal followed.

I

The plaintiff claims that the court too narrowly

framed the issue of the case, which resulted in an incomplete ruling that failed to consider all specifications of

negligence alleged in the complaint. More specifically,

the plaintiff argues that the court’s written memorandum of decision focuses almost exclusively on the contested issue regarding whether warning signs were in

place at the time of the accident. According to the

plaintiff, however, she had alleged other specifications

of negligence in her complaint the proof of which were

not dependent on the presence of warning signs. The

defendant responds that the plain language of the

court’s decision indicates that it considered all of the

plaintiff’s claims of negligence and simply concluded

that the plaintiff had failed to meet her burden of proof

with respect to all disputed issues of negligence, not

just whether adequate warning signs existed in the

vicinity of the crash. On the basis of the record presented, we agree with the defendant.
Whether the court considered and decided all of the

plaintiff’s specifications of negligence requires us to

construe the court’s judgment as set forth in its memorandum of decision. ‘‘Because [t]he construction of a

judgment is a question of law for the court . . . our

review . . . is plenary.’’ (Citation omitted; internal

quotation marks omitted.) Chapman Lumber, Inc. v.

Tager, 288 Conn. 69, 91, 952 A.2d 1 (2008). ‘‘As a general

rule, judgments are to be construed in the same fashion

as other written instruments. . . . The determinative

factor is the intention of the court as gathered from all

parts of the judgment. . . . The interpretation of a

judgment may involve the circumstances surrounding

the making of the judgment. . . . Effect must be given

to that which is clearly implied as well as to that which

is expressed. . . . The judgment should admit of a consistent construction as a whole.’’ (Emphasis added;

internal quotation marks omitted.) Id., 91–92. ‘‘In Connecticut, our appellate courts do not presume error on

the part of the trial court. . . . Rather, the burden rests

with the appellant to demonstrate reversible error.’’

(Internal quotation marks omitted.) Pettiford v. State,

179 Conn. App. 246, 260–61, 178 A.3d 1126, cert. denied,

328 Conn. 919, 180 A.3d 964 (2018).

Here, there is nothing in the record before us that

supports the plaintiff’s assertion that the trial court, in

finding in favor of the defendant, failed to consider

all of the specifications of negligence alleged in the

complaint. Although the plaintiff is correct that the

majority of the court’s analysis focused on resolving

the dispute over whether warning signs were present

at the time of the accident, we also must look to the

remainder of the court’s decision, including the court’s

overall conclusion.

The court clearly indicated that the plaintiff was entitled to prevail if she demonstrated negligence ‘‘in one

or more ways alleged in her complaint.’’ This suggests

that the court understood its duty to consider all aspects

of the plaintiff’s negligence claim. The trial court also

concluded, largely on the basis of its determination

regarding the credibility of the witnesses, that the evidence presented by the plaintiff was insufficient to sustain her burden of convincing the court that her injuries

were more likely than not caused by the negligence

of the defendant. This court will not revisit credibility

determinations on appeal; see Somers v. Chan, 110

Conn. App. 511, 530, 955 A.2d 667 (2008); nor can we

substitute our own conclusion regarding the weight of

the evidence for that of the fact finder. See Kaplan v.

Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The

court’s overall conclusion that the plaintiff had failed

to satisfy her burden of proving negligence on the part

of the defendant was in no way expressly limited only

to those specifications of negligence that relied on allegations regarding a lack of warning signage. Rather,
the court concluded more generally that it found the

defendant’s version of the facts surrounding the accident more credible than that presented by the plaintiff.

That conclusion reasonably may be viewed as pertaining not only to the allegations of negligence related

to the existence of warning signs but also to other

specifications of negligence, including that Lynch had

been operating his vehicle in an unreasonable fashion

or had failed to keep a proper lookout for

approaching traffic.

Reading the memorandum of decision as a whole,

we simply are not persuaded that the court either too

narrowly framed the issues presented by the parties or

that it failed to consider all forms of negligence alleged

by the plaintiff in her complaint. To the extent that

the court’s memorandum of decision is ambiguous, the

plaintiff failed to seek clarification or ask for reargument, and, in the absence of any evidence to the contrary, we will presume that the court disposed of the

matter properly. Because the plaintiff has failed to demonstrate that the court’s judgment in favor of the defendant was legally incomplete, we reject the plaintiff’s

claim.

II

The plaintiff also claims that, in reaching its decision,

the court improperly failed to consider applicable statutes, highway safety regulations, and standards governing the actions of the department. Specifically, the

plaintiff claims that she ‘‘alleged in her complaint, and

at trial before the court, that the defendant’s actions

prior to the . . . collision violated applicable Connecticut statutes, regulations, and safety procedures,’’ and

that she ‘‘presented evidence at trial to prove this

claim.’’ The defendant argues that the safety regulations

and statutes relied on by the plaintiff in support of this

claim on appeal were never pleaded or offered into

evidence at trial and, therefore, this claim is not properly preserved for appellate review. Again, we agree

with the defendant.

The following procedural history is relevant to our

disposition of this claim. At the start of the trial, the

court asked the parties whether there was anything

preliminarily that the court needed to address. The

plaintiff indicated that ‘‘[w]e have some regulations,

Your Honor, that we have to talk about.’’ The plaintiff

explained: ‘‘So [General Statutes §] 14-298, Office of

State Traffic Administration statute empowers . . .

the Department of Transportation to prepare or to—to

adopt regulations. And then there’s § 14-298-800 [of the

Regulations of Connecticut State Agencies] . . . .2

[It

is] a Manual on Uniform Traffic Control [Devices]

[MUTCD], 2009 edition. I have excerpts that I’m going to

use from that edition. I brought the whole 2009 edition

in with me today if counsel wanted to look at it, but I

have excerpts. It deals with a mobile operation on a
multilane road diagram that is one of their standard[s]

and then some signs and I just wanted the court to take

judicial notice of that.’’ (Footnote added.)

The defendant objected, arguing as follows: ‘‘Preliminarily, counsel wants to introduce as a full exhibit,

statutes. I think Your Honor—if a statute is relevant,

Your Honor . . . has the ability, obviously, to review

it and address it as necessary. So I don’t think a statute

has to be marked as a full exhibit, number one. Secondarily, Your Honor, there are certain regulations that I

believe counsel wants to mark as full exhibits. Again,

same—my position is the same on that. And, further,

the relevancy of certain regulations may or may not

come into issue. So until there is a foundation laid for

the proper admissibility of a particular regulation, I

object to it being premarked as a full exhibit. . . . And

then last, Your Honor, as counsel referenced, there are

certain exhibits I believe counsel wants to offer from

the [MUTCD]. It’s an engineering manual that engineers

use in, my understanding is, designing and building of

roads, highways, et cetera, and I would submit, Your

Honor, that all that is not admissible on several grounds.

One is no foundation. Number two, there has been no

disclosure of any expert witness by the plaintiff in this

matter relative to this particular issue, engineering standards, for anything having to do with liability for that

matter.’’

The court agreed with the defendant that it was not

necessary for copies of Connecticut statutes and regulations to be marked into evidence, as these may be judicially noticed by the court. See, e.g., General Statutes

§ 52-163. The court initially indicated that it was inclined

to agree with the defendant that the plaintiff needed to

lay some foundation for admitting the MUTCD into

evidence. The plaintiff responded that she did not

believe an expert was necessary but that she had a

witness through whom she would seek to admit the

MUTCD. The court stated: ‘‘All right. Why don’t we wait

until then? All right? And then we’ll find out what kind

of foundation you lay and we can take a look at it then.’’

In support of her claim that the court failed to properly consider applicable statutes, regulations, and the

MUTCD, and in responding to the defendant’s argument

that this claim was not raised to the trial court and thus

not properly preserved for appellate review, the plaintiff

directs us to paragraphs (c) and (g) of her specifications

of negligence. Those paragraphs alleged that Lynch had

‘‘failed to follow established safety procedures and/or

standards for diverting traffic on a highway while

operating a state owned motor vehicle’’ and ‘‘failed to

follow [department] rules, policy or procedures in that

a [department] truck was in the highway without adequate flagman and/or signs to warn of its presence.’’

On the basis of the record before us, however, we are

not convinced that the plaintiff properly preserved for
appellate review her claim that the court improperly

failed to consider relevant state statutes, regulations or

the MUTCD.

First, with respect to the court’s alleged failure to

consider relevant statutes, the plaintiff alleged in her

complaint that Lynch failed to follow department rules

and policies, as well as safety procedures or standards,

but she never alleged a violation of any particular state

statute. On appeal, the plaintiff identifies General Statutes § 14-298 as the statute that the court failed to consider. That statute, however, was not cited in the

complaint or referred to in the plaintiff’s posttrial brief.

Furthermore, although the plaintiff mentioned § 14-298

in a pretrial colloquy with the court, she did so only to

indicate that § 14-298 was the statutory basis for the

promulgation of a department regulation adopting

the MUTCD.

With respect to highway safety regulations, we first

note that none of the specifications of negligence,

including those specifically relied on by the plaintiff,

alleges a failure to comply with any particular regulation, or even contain the word ‘‘regulation.’’ Second,

although the plaintiff made brief reference to § 14-298-

800 of the Regulations of Connecticut State Agencies

in a pretrial colloquy regarding the marking of exhibits,

the plaintiff made no further mention of § 14-298-800

or any other regulation in her presentation of evidence.

After both sides rested, the court asked the parties

whether they would like to submit posttrial briefs. The

court indicated that posttrial briefs ‘‘might be helpful,

especially if you’re going to be citing regulations . . .

that you might think are relevant.’’ Counsel for the

defendant responded: ‘‘Well, Your Honor, I have some

concern, based upon what you just commented, about

the briefs mentioning . . . regulations. There’s no regulations that have come into evidence; there’s been no

regulations mentioned on the record. Clearly, I think

counsel can argue statutes because that’s been pled.

. . . The complaint does not contain any allegations

of any violation of any regulations, so I’m just a little

concerned . . . in that regard.’’ The plaintiff made no

references to any regulations in her posttrial brief.

Finally, as to the MUTCD, although the plaintiff

sought the court’s permission prior to trial to premark,

presumably as full exhibits, excerpts taken from the

MUTCD, the defendant objected, arguing that some

foundation would need to be laid as to their admissibility, and that an expert witness might be necessary for

that purpose given the technical nature of the MUTCD.

The court deferred ruling on the admissibility of the

MUTCD, indicating it would do so if the plaintiff sought

to admit the excerpts at trial. The plaintiff, however,

never sought to introduce the MUTCD or excerpts into

evidence during trial, nor did she question any witness

about the MUTCD. Even if the trial court had taken
judicial notice of § 14-298-800, that regulation only

refers to the MUTCD. It does not contain the contents

of the manual, of which the court could not take judicial

notice. The plaintiff did not refer to the MUTCD in her

posttrial brief.

‘‘Our appellate courts, as a general practice, will not

review claims made for the first time on appeal. We

repeatedly have held that [a] party cannot present a

case to the trial court on one theory and then seek

appellate relief on a different one . . . . [A]n appellate

court is under no obligation to consider a claim that is

not distinctly raised at the trial level. . . . [B]ecause

our review is limited to matters in the record, we [also]

will not address issues not decided by the trial court.

. . . The requirement that [a] claim be raised distinctly

means that it must be so stated as to bring to the attention of the court the precise matter on which its decision

is being asked.’’ (Citations omitted; emphasis omitted;

footnote omitted; internal quotation marks omitted.)

White v. Mazda Motor of America, Inc., 313 Conn. 610,

619–20, 99 A.3d 1079 (2014).

Having thoroughly reviewed the pleadings, the trial

transcript, and the parties’ posttrial briefs, we conclude

that the plaintiff’s claim that the court failed to consider

relevant statutes, department regulations, and the

MUTCD is not preserved for appellate review because

the plaintiff’s arguments never properly were raised to

or considered by the trial court. There were no references to any particular statute, regulation, or the

MUTCD in the plaintiff’s complaint. Although the court

indicated its willingness to consider the relevance of

the MUTCD at the time of trial, the plaintiff never sought

to admit the manual or excerpts from it into evidence

and did not offer testimony pertaining to any particular

statute, regulation or the MUTCD during trial. Furthermore, the plaintiff made no reference to regulations or

to the MUTCD in her posttrial brief. We cannot review

the court’s purported failure to consider arguments that

were never properly before it. Accordingly, we decline

to entertain the plaintiff’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

1 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.’’

2 Section 14-298-900 of the Regulations of Connecticut State Agencies

provides in relevant part: ‘‘(a) All temporary traffic control devices used on

road or street construction, maintenance work, or for incident management,

shall be of the type approved by the Office of the State Traffic Administration

and shall be in compliance with the provisions set forth in 23 CFR 655.603.

‘‘(b) Such devices shall conform to the standards set forth in the following

publications as applicable, except as provided otherwise in sections 14-298-

500 to 14-298-900, inclusive, of the Regulations of Connecticut State

Agencies:

‘‘(1) The 2009 edition of the ‘Manual on Uniform Traffic Control Devices

for Streets and Highways’ (MUTCD) approved by the Federal Highway
Administration . . . .’’