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DOCKET NO.FST-CV-22-6058095-S SUPERIOR COURT
MARION A. ZITANI J.D. OF NORWALK/STAMFORD
VS. AT STAMFORD
LJ 18 PROPERTIES LLC April 11, 2024
OBJECTION TO MOTION IN LIMINE REGARDING WEATHER DATA
The plaintiff Marion A Zitani, hereby objects to the defendant’s Motion in In Limine re:
Weather Data from Weather Sentry DTN,” dated January 26, 2024 because the defendant’s
position is not supported by applicable law. More particularly, the defendant’s position is
directly adverse to Conn Gen. Stat § 52-180(b); Conn Gen Stat §1-14; and Connecticut Code of
the Evidence §8-3 (7). Further, since the weather reports are being admitted to impeach
testimony elicited in support of the defendant’s ongoing storm defense, that in impeachment is,
by definition, not hearsay at all under Connecticut Code of Evidence §8-1 as the reports are
required largely, if not entirely, for impeachment of the defendant’s testimony on its Special
Defense rather than the proof of matters asserted. Accordingly, the Motion should be denied and
this Objection sustained.
FACTS AND PROCEDURAL HISTORY:
In the Complaint, the Plaintiff alleges she sustained injuries arising from falling on snow,
ice or similar substance in a parking lot owned and controlled by the defendant.
In the Defendant’s Amended Answer & Special Defenses, dated August 24, 2023, the
defendant denied the substantive claims in the Complaint and pleaded as its “First Special
Defense” that: “The alleged slipper[sic] condition came from precipitation from a storm in
progress and therefore the defendant is not liable under the holding in Kraus v. Newton, 211
Conn. 191 (1989).”
The defendant has identified at least three witnesses who are likely to testify regarding
the ongoing storm defense.
The plaintiff has identified four governmental weather reporting stations - all within the
Town of New Canaan — each of which rebuts the defendant’s claimed ongoing storm. One of the
stations is operated on behalf of the Town of New Canaan by a compny expressly contracted by
the Town. The other three stations are operated by the National Oceanic and Atmospheric
Administration (NOAA). Copies of the reports are attached hereto. The plaintiff already has, in
hand, certified copies of the NOAA weather reports. A certified copy of the New Canaan Report
is expected before trial. However, the plaintiff is also identified both the keeper of records and an
individual by the name of Tiger Mann through whom the plaintiff expects to submit the New
Canaan government records. It is expected that Mr. Mann will testify that the Town retained a
contractor Weather Sentry DTN to provide and record weather data for the town generally and
for Public Works in particular. He will further testify that the data is produced pursuant to that
contract and relied upon by the Town planning and other purposes. Furthermore, in an excess of
caution, the plaintiff has identified the keeper of records for Weather Sentry DTN if necessary to
further authenticate the subject document. We submit that neither a town representative nor the
keeper of records for Weather Sentry DTN is a necessary witness in the facts and circumstances
of this case.
LAW AND ARGUMENT:
Obviously, the government records adduced by the plaintiff all but conclusively establish
that the Special Defense is ill-founded. Unsurprisingly, the defendant desperately wants to avoid
1 Although the defendant's motion is addressed solely to the New Canaan records, we assume the
defendant will expand the objection to the NOAA records in short order. However since both the
State and Federal records are manifestly admissible, we will deal them here.
admission of government records. The only bases for objection are that the weather reports are
hearsay or that the contents are not based upon the declarant’s personal knowledge. The plaintiff
respectfully submits the government weather reports are manifestly admissible on several bases.
The Weather Reports are Admissible Business Records under Conn Gen. Stat §52-180.
In pertinent part, Conn Gen. Stat §52-180 provides that to be an admissible business
record, “the writing must be made in the regular course of business; it must be the regular course
of the business to make the writing; the writing must be made at the time when the act,
transaction or event occurred, or within a reasonable time thereafter.” The New Canaan weather
reports meet this standard, as they are kept in the regular course of business by The Town of
New Canaan’s Department of Public Works, as set out by the Director of Public Works himself
in the attached letter dated October 6, 2023. We expect Mr. Mann to testify that the weather
reports are used by the Public Works Department for planning and response purposes and that
Weather Sentry DTN is expressly retained as an agent for the Town to provide the data and
reports under contract.. He will further testify that those reports are maintained by the Town.
Obviously, recordation of weather events is assembled in real time. In other words, Mr. Mann
will lay the necessary foundation if the Court requires his presence to do so. Alternatively,
another New Canaan officer or keeper of records will appear to fill in any gaps or, if deemed
necessary by the Court, a representative of Weather Sentry DTN has been identified in the
pretrial filings. Accordingly, the New Canaan weather report is an admissible business record.
Lack of personal knowledge is not a relevant consideration with respect to admissibility
under Conn Gen Stat §52-180(b).
Conn Gen. Stat §52-180(b) provides, in pertinent part: “the writing or record shall not be
rendered inadmissible by (1) a party’s failure to produce as a witness the person or persons...
who have personal knowledge of the act, transaction, occurrence or event recorded.” Subsection
(b) further provides “either of such facts and all other circumstances of the making of the writing
or record, including lack of personal knowledge by the entrant or maker, may be shown to affect
the weight of the evidence, but not to affect its admissibility.” Therefore, on the face of the
business records statute, to the extent the defendant claims in admissibility based upon the
declarant’s lack of personal knowledge, that is not a ground for inadmissibility. At worst, the
issue goes to the evidence’s weight. Our Supreme Court has confirmed this interpretation of
Section 52-180. State v. William C., 267 Conn. 686. 703 (2004).
Accordingly, the defendant’s claim of inadmissibility with respect to the weather reports
is simply unsupportable and the Motion In Limine should be denied.
Certified Governmental Records are Admissible under Conn Gen Stat §§ 1-14 and 52-165.
Conn Gen Stat §1-14 provides, in pertinent part: Any ... Reproduce record or any ...
certified copy may be admitted in evidence with the same effect as the original thereof, and shall
be prima facie evidence of the facts set forth therein.” Accordingly, not only are the
governmental reports admissible in evidence, but they are deemed to be prima facie evidence of
the facts within those documents.
Similarly Conn Gen. Stat § 52-165 provides that entries or records of all public offices,
may be proved by a certified copy of the documents certified by an officer appointed for that
purpose. See, e.g., Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 9-10 (1970).
As such, the governmental weather reports are admissible under that statute as well.
The defendant’s position simply cannot be squared with Sections 1-14 and 52-165, as
such, the Motion In Limine should be denied.
Governmental Weather Reports are admissible as “Public Records or Reports” pursuant
to Connecticut Code of Evidence § 8-3 (7).
Section 8-3 (7) of the Code of Evidence establishes that public records in any form are
admissible if they were made by a public official under duty to make it; if the record was made
in the course of official duties; and either the official or someone with a duty to transmit the
information had personal knowledge of the matters contained in the record. The plaintiff
respectfully submits the Court may take judicial notice that the National Oceanic and
Atmospheric Administration is the parent agency to the National Weather Service. The whole
raison d’étre for the NOAA and the NWS is to “provide weather, water and climate data,
forecasts, warnings, and impact-based decision support services for the protection of life and
property and enhancement of the national economy. https://www.weather.gov/about/; All of
NOAA’s activity has been legislatively authorized following the creation of the administration
by executive order. See, e.g., 15 U.S.C. §1511; U.S. Congress, House of Representatives,
Reorganization Plans Nos. 3 and 4 of 1970, “Message from the President of the United States
Relative to Reorganization Plans Nos. 3 and 4 of 1970,” 91st Cong., 2nd sess., July 9, 1970, No.
91- 366, p. 6; https://crsreports.congress.gov/product/pdf/R/R47636/2. In short, there is no
serious dispute that the data recorded and retained by NOAA and the NWS are generated by
those within the Administration with the duty to do so.
The analysis is similar as to the New Canaan weather reports. There is no significant
question that the town requires the weather data, that they hired a contractor to provide it under
contract and that the contractor has a business obligation and duty to transmit the data to the
town.
All of the records are admissible under the Connecticut Code of Evidence.
The Motion misquotes the authorities upon which the defendant relies.
In support of the Motion, the defendant mis-cites two cases:
In Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 38 (1978) , the Court noted two
factors relevant to admissibility. An item in a business record may be admissible if either it was
based on the personal knowledge of the entrant “or on the information of others with personal
knowledge who are under a business duty to transmit such information to the entrant.” Id.
(emphasis added). The defendant completely omits the second clause of the critical sentence
upon which it relies and completely ignores the “under a business duty to transmit” portion of
that clause. In that case, the Court admitted not only the personal observations of the declarant
but also with the “subordinate findings” underlying the report. Jd. at 38. The result should be the
same here.
The defendant citation of D’Amato v. Johnson, is similarly deficient. Again, the
defendant deletes the portion of the opinion which holds that “information transmitted to [the
record keeper] by an observer whose business duty it was to transmit it to [the record keeper]
was admissible. D'Amato v. Johnston, 140 Conn. 54, 59 (Conn. 1953). The defendant’s failure
to correctly cite the authorities upon which it relies makes the entire brief misleading on its face.
Furthermore, D’Amato makes the Court’s rationale clear. The Business Record exception
is not intended “to permit the receipt in evidence of [business] entries based upon voluntary
hearsay statements made by third parties not engaged in the business or under any duty in
relation thereto.” D'Amato v. Johnston, 140 Conn. 54, 59 (Conn. 1953). In that case, the Court
excluded a voluntary third-party statement in a hospital record to the effect that the plaintiff was
intoxicated when it was not recorded or relevant to a proper diagnosis or treatment of the
plaintiff's injuries. Jd., at 61. In D’Amato, there were two levels of hearsay to be considered.
While the record itself was admissible, certain information was recorded which was not related
to the business at hand or the purpose for which the record was created. That fact pattern is a
well-established consideration regarding Business Record statute. See, e.g. In re Barbara J., 215
Conn. 31, 40 (1990). In this matter, there is no hearsay within hearsay. So, even if the defendant
had correctly quoted the authorities cited in the Motion, their rationale does simply not apply in
this case.
To be clear, neither of the cases cited by the defendant supports exclusion of the
governmental weather reports in this case - all of which were generated by governmental
employees or persons expressly retained for governmental purposes. There is no suggestion that
any “volunteer” provided information. There is no suggestion that any of the information was not
produced for a governmental purpose. In the absence of such a claim, the defendant’s argument
has no merit.
To the extent the plaintiff offers the weather reports to impeach defense witnesses it is, by
definition not hearsay as admission is sought for reasons other than the truth of the matters
asserted.
As a court is no doubt aware, hearsay is defined as an out-of-court statement offered to
prove the truth of a matter asserted therein. CT Code of Evidence §8-1 (3). It is fundamental law
that evidence offered for the purposes of impeachment is not hearsay, by definition. United
States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008); Whole Foods Mkt. Group, Inc. v.
Wical Ltd. P'ship, No. 1:17-CV-01079-RCL, 2019 WL 6910168, at *1; See, United States v.
Ballou, 59 F. Supp. 3d 1038, 1058 (D.N.M. 2014) Because there is a dearth of case law in
Connecticut, Federal precedents are instructive. In each case cited above, the court
acknowledged that otherwise inadmissible hearsay may be used for impeachment and is
therefore not hearsay at all.
In this case, the defendant proposes to prove their ongoing storm special Defense. In
doing so, presumably, the defendant will offer witnesses to testify such a storm occurred. In the
event such evidence is adduced, plaintiff is entitled to impeach those witnesses using any
evidence including documents that would otherwise be considered hearsay.
A principal reason for which the plaintiff seeks to admit the reports is to rebut the
expected testimony from defendant’s witnesses regarding the Special Defense. The ongoing
storm issue is the defendant’s burden of proof and consequently not part of the plaintiff's case in
chief. As a result, the plaintiff is not required to offer anything at all regarding the alleged storm
until after the defendant submits actual evidence in support of the Special Defense.
So, while the governmental weather reports are clearly admissible multiple bases set forth
hereinabove, even if the analysis did not apply, the governmental weather reports would
nevertheless be admissible for purposes of impeaching the defendant’s witnesses. Under
impeachment, the documents are not offered to “prove the matter asserted” by definition, they
are not hearsay under Connecticut Code of Evidence §8-1(3) to the extent used for that purpose.
CONCLUSION
The defendant’s ongoing storm Special Defense requires proof that an ongoing storm
actually existed. Contemporaneous government weather reports all but conclusively establish
that no such storm was underway at the time and place of the plaintiff's fall. The defense
obviously wants to prevent those reports from being presented to the jury.
The plaintiff respectfully submits that the governmental weather reports are admissible
under Conn Gen. Stat § 52-180(b); Conn Gen Stat §1-14; Conn Gen. Stat §52-165 and
Connecticut Code of the Evidence §8-3 (7) and Code of Evidence §8-1(3).
Several of those statutes render the reports admissible without reference to a hearsay
objection and Section 52-180(b) explicitly permits admissibility irrespective of the declarant’s
personal knowledge. We submit the subject documents are admissible under all of the asserted
bases, nevertheless, the documents will be admissible if even a single base applies.
Accordingly, for the reasons set forth herein, the plaintiff respectfully submits the
Motion should be denied and this objection sustained.
THE PLAINTIFF,
Marion A. Zitani
By
John J. Mor;
i
Barr & Mor; in
2777 Summer Street
Stamford, CT 06905
Telephone: (203) 356-1595
Fax: (203) 504-8926
Juris No. 431083
CERTIFICATION
This is to certify that a copy of the foregoing was sent via electronic mail on April 12,
2024, to the following counsel of record:
Joseph Michael Musco
Musco & Jassogna
555 Long Wharf Drive 10" floor
New Haven, CT 06511
CO
\|
\
\
John J. Morgat
TOWN OF NEW CANAAN
TOWN HALL, 77 MAIN STREET
NEW CANAAN, CT 06840
TIGER MANN TEL: (203) 594-3054
DIRECTOR OF FAX: (203) 594-3129
PUBLIC WORKS
October 6, 2023
Angela |. Fornis
Attorney at Law
Barr & Morgan
2777 Summer Street
Stamford, CT 06905
RE: Weather Sentry/DTN Weather Service Records for January 25 — 27, 2021
Ms. Fornis,
The record of weather data provided to your office previously for the dates listed above is a
business record of the Town of New Canaan Department of Public Works. The records are
maintained by Weather Sentry DTN [The Town's contracted weather service provider] at a
website of https://weather.dtn.com/
If you should have any questions, please feel free to call.
Regards,
Tiger Mann
Director of Public Works
Town of New Canaan
9/19/23, 3:34 PM. Hourly History
‘Hourly Historical Weather for Town Hall, New Canaan
CT WHITE OAK SHADE / FARM (MX0343) for January 25, 2021
Hour
Temperature Dew Point Relative Humidity Precipitation Wind
Conditions
(FY (FY (%) in.) (mph)
12:00 AM EST 23.0 5.0 46 NWat9 Mostly Cloudy
1:00 AM EST. 23.0 6.4 48 NW at9 Mostly Cloudy
2:00 AM EST 21.9 5.0 48 NW at9 Mostly Cloudy
3:00 AM EST 21.9 5.0 48 NWat9 Mostly Cloudy
4:00 AM EST 21.0 6.1 $2 NWat9 Mostly Cloudy
5:00 AM EST 19.9 6.1 54 NWat8 Mostly Cloudy
6:00 AM EST 19.9 61 54 NW at8 Clear
7:00 AM EST 19.9 61 54 NWat7 Clear
8:00 AM EST 21.0 84 57 NW at7 Sunny
9:00 AM EST 24.1 9.0 53 NWat8 Clear
10:00 AM EST 27.0 8.1 44 NWat8 Clear
11:00 AM EST 28.9 8.1 441 NWat9 Sunny
12:00 PM EST 32.0 9.0 38 NWat8 Mostly Cloudy
1:00 PM EST 34.0 10.9 38 NW at8 Sunny
2:00 PM EST 34.0 10.9 38 NWat9 Sunny
3:00 PM EST 36.0 10.9 35 NNW at 9 Mostly Cloudy
4:00 PM EST 34.0 10.9 38 NNW at 8 Mostly Cloudy
5:00 PM EST 33.1 12.9 44 NWat6 Mostly Cloudy
6:00 PM EST 30.9 12.9 47 NNW at 5 Clear
7:00 PM EST 28.9 14.0 53 NNW at 5 Clear
8:00 PM EST 28.9 14.0 53 NNW at 5 Mostly Cloudy
9:00 PM EST 28.0 14.0 56 NatS Mostly Cloudy
10:00 PM EST 28.9 12.9 51 Nat6 Mostly Cloudy
11:00 PM EST 30.0 12.9 49 Naté Mostly Cloudy
about:blank WwW
"79/23, 3:29 PM Hourly History
Hourly Historical Weather for Town Hall, New Canaan
CT WHITE OAK SHADE / FARM (MX0343) for January 26, 2021
Temperature Dew Point Relative Humidity Precipitation Wind
Conditions
Hour
(CF) (°F) (%} tn) (mph)
12:00 AM EST 28.9 14.0 53 \NNE at 6 Mostly Cloudy
1:00 AM EST 28.0 14.0 56 W Mostly Cloudy
2:00 AM EST 28.0 15.1 58 'NNE at 3. ‘Mostly Cloudy
3:00 AM EST 28.9 15.1 56 NNW at 3 | Mostly Cloudy
4:00 AM EST 28.9 16.0 58 NNE at 3 | Mostly Cloudy
5:00 AM EST 28.0 16.0 61 NE at3 {Cloudy
6:00 AM EST 28.9 15.1 56 NE at7 {Mostly Cloudy
7:00 AM EST 26.1 15.1 63 INE at 6 | Mostly Cloudy
8:00 AM EST 28.0 16.0 61 jENE at7 | Cloudy
9:00 AM EST 28.9 16.0 58 \ENE at 9 Cloudy
10:00 AM EST 32.0 17.4 54 ENE at 9 Cloudy
11:00 AM EST 32.0 17.1 ENE at 10 | Cloudy
12:00 PM EST 32.0 19.0 59 (ENE at 9 Cloudy
1:00 PM EST 32.0 19.9 61 Eat9 | Snow
2:00 PM EST 32.0 21.9 67 ENE at 10 | Snow
3:00 PM EST 30.9 27.0 85 Eats Snow
4:00 PM EST 32.0 28.0 85 ENE at 8 Snow
5:00 PM EST 32.0 28.9 89 ENE at 8 Snow
6:00 PM EST 32.0 28.9 89 ENE at 9 Freezing Rain
7:00 PM EST 30.9 28.9 92 ENE at 9 Freezing Rain
8:00 PM EST. 32.0 28.9 89 NE at8 Freezing Rain
9:00 PM EST 30.9 28.0 89 NE at7 Freezing Rain
10:00 PM EST 32.0 28.9 89 NE at7 Freezing Rain
11:00 PM EST 32.0 28.9 89 NE at6 Freezing Rain
about:blank WW
9119/23, 5:33 PM Hourly History
Hourly Historical Weather for Town Hall, New Canaan
CT WHITE OAK SHADE / FARM (MX0343) for January 27, 2021
Hour Temperature Dew Point Relative Humidity Precipitation Wind
Conditions
(CF) ("F) fo) (im) (mph)
12:00 AM EST 30.9 28.9 92 NNE at6 Freezing Rain
1:00 AM EST. 30.9 28.9 92 NE at3. Snow
2:00 AM EST 30.9 28.0 89 Nat3 Snow
0 AM EST 30.0 27.0 89 NNW at 5 Snow
AM EST 28.9 28.0 96 NNW at 3 Snow
5:00 AM EST 30.0 27.0 89 NNW at 5 Cloudy
AM EST 30.0 27.0 89 NNW at 6 Snow
AM EST 30.0 27.0 89 NNW at 5 Snow
AM EST 30.0 27.0 89 NNW at 6 Cloudy
AM EST 32.0 28.0 85 NNW at 8 Mostly Cloudy
10:00 AM EST 34.0 27.0 76 NNW at 9 Mostly Cloudy
11:00 AM EST. 35.1 26.1 70 NNW at 9 Cloudy
12:00 PM EST 35.1 26.1 70 NNW at 8 Cloudy
1:00 PM EST 35.1 27.0 73 NNW at 10 Cloudy
2:00 PM EST 37.9 26.1 62 NNW at 12 Snow
3:00 PM EST 37.9 25.0 60 INW at 13 G 23 Snow
4:00 PM EST 35.1 24.1 64 NNW at 10 Snow
5:00 PM EST 34.0 2441 67 NNW at 9 Cloudy
6:00 PM EST 33.1 23.0 67 NNW at 8 Mostly Cloudy
7:00 PM EST 32.0 23.0 69 NNW at 10 Cloudy
8:00 PM EST 30.9 23.0 72 NNW at 9 Cloudy
9:00 PM EST 30.9 21.0 66 NNW at 10 Cloudy
10:00 PM EST 30.0 21.0 69 NNW at 10 Cloudy
11:00 PM EST 30.0 21.0 69 NNW at 10 Cloudy
about:blank WwW
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Preview
DOCKET NO.FST-CV-22-6058095-S SUPERIOR COURT MARION A. ZITANI J.D. OF NORWALK/STAMFORD VS. AT STAMFORD LJ 18 PROPERTIES LLC April 11, 2024 OBJECTION TO MOTION IN LIMINE REGARDING WEATHER DATA The plaintiff Marion A Zitani, hereby objects to the defendant’s Motion in In Limine re: Weather Data from Weather Sentry DTN,” dated January 26, 2024 because the defendant’s position is not supported by applicable law. More particularly, the defendant’s position is directly adverse to Conn Gen. Stat § 52-180(b); Conn Gen Stat §1-14; and Connecticut Code of the Evidence §8-3 (7). Further, since the weather reports are being admitted to impeach testimony elicited in support of the defendant’s ongoing storm defense, that in impeachment is, by definition, not hearsay at all under Connecticut Code of Evidence §8-1 as the reports are required largely, if not entirely, for impeachment of the defendant’s testimony on its Special Defense rather than the proof of matters asserted. Accordingly, the Motion should be denied and this Objection sustained. FACTS AND PROCEDURAL HISTORY: In the Complaint, the Plaintiff alleges she sustained injuries arising from falling on snow, ice or similar substance in a parking lot owned and controlled by the defendant. In the Defendant’s Amended Answer & Special Defenses, dated August 24, 2023, the defendant denied the substantive claims in the Complaint and pleaded as its “First Special Defense” that: “The alleged slipper[sic] condition came from precipitation from a storm in progress and therefore the defendant is not liable under the holding in Kraus v. Newton, 211 Conn. 191 (1989).” The defendant has identified at least three witnesses who are likely to testify regarding the ongoing storm defense. The plaintiff has identified four governmental weather reporting stations - all within the Town of New Canaan — each of which rebuts the defendant’s claimed ongoing storm. One of the stations is operated on behalf of the Town of New Canaan by a compny expressly contracted by the Town. The other three stations are operated by the National Oceanic and Atmospheric Administration (NOAA). Copies of the reports are attached hereto. The plaintiff already has, in hand, certified copies of the NOAA weather reports. A certified copy of the New Canaan Report is expected before trial. However, the plaintiff is also identified both the keeper of records and an individual by the name of Tiger Mann through whom the plaintiff expects to submit the New Canaan government records. It is expected that Mr. Mann will testify that the Town retained a contractor Weather Sentry DTN to provide and record weather data for the town generally and for Public Works in particular. He will further testify that the data is produced pursuant to that contract and relied upon by the Town planning and other purposes. Furthermore, in an excess of caution, the plaintiff has identified the keeper of records for Weather Sentry DTN if necessary to further authenticate the subject document. We submit that neither a town representative nor the keeper of records for Weather Sentry DTN is a necessary witness in the facts and circumstances of this case. LAW AND ARGUMENT: Obviously, the government records adduced by the plaintiff all but conclusively establish that the Special Defense is ill-founded. Unsurprisingly, the defendant desperately wants to avoid 1 Although the defendant's motion is addressed solely to the New Canaan records, we assume the defendant will expand the objection to the NOAA records in short order. However since both the State and Federal records are manifestly admissible, we will deal them here. admission of government records. The only bases for objection are that the weather reports are hearsay or that the contents are not based upon the declarant’s personal knowledge. The plaintiff respectfully submits the government weather reports are manifestly admissible on several bases. The Weather Reports are Admissible Business Records under Conn Gen. Stat §52-180. In pertinent part, Conn Gen. Stat §52-180 provides that to be an admissible business record, “the writing must be made in the regular course of business; it must be the regular course of the business to make the writing; the writing must be made at the time when the act, transaction or event occurred, or within a reasonable time thereafter.” The New Canaan weather reports meet this standard, as they are kept in the regular course of business by The Town of New Canaan’s Department of Public Works, as set out by the Director of Public Works himself in the attached letter dated October 6, 2023. We expect Mr. Mann to testify that the weather reports are used by the Public Works Department for planning and response purposes and that Weather Sentry DTN is expressly retained as an agent for the Town to provide the data and reports under contract.. He will further testify that those reports are maintained by the Town. Obviously, recordation of weather events is assembled in real time. In other words, Mr. Mann will lay the necessary foundation if the Court requires his presence to do so. Alternatively, another New Canaan officer or keeper of records will appear to fill in any gaps or, if deemed necessary by the Court, a representative of Weather Sentry DTN has been identified in the pretrial filings. Accordingly, the New Canaan weather report is an admissible business record. Lack of personal knowledge is not a relevant consideration with respect to admissibility under Conn Gen Stat §52-180(b). Conn Gen. Stat §52-180(b) provides, in pertinent part: “the writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as a witness the person or persons... who have personal knowledge of the act, transaction, occurrence or event recorded.” Subsection (b) further provides “either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.” Therefore, on the face of the business records statute, to the extent the defendant claims in admissibility based upon the declarant’s lack of personal knowledge, that is not a ground for inadmissibility. At worst, the issue goes to the evidence’s weight. Our Supreme Court has confirmed this interpretation of Section 52-180. State v. William C., 267 Conn. 686. 703 (2004). Accordingly, the defendant’s claim of inadmissibility with respect to the weather reports is simply unsupportable and the Motion In Limine should be denied. Certified Governmental Records are Admissible under Conn Gen Stat §§ 1-14 and 52-165. Conn Gen Stat §1-14 provides, in pertinent part: Any ... Reproduce record or any ... certified copy may be admitted in evidence with the same effect as the original thereof, and shall be prima facie evidence of the facts set forth therein.” Accordingly, not only are the governmental reports admissible in evidence, but they are deemed to be prima facie evidence of the facts within those documents. Similarly Conn Gen. Stat § 52-165 provides that entries or records of all public offices, may be proved by a certified copy of the documents certified by an officer appointed for that purpose. See, e.g., Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 9-10 (1970). As such, the governmental weather reports are admissible under that statute as well. The defendant’s position simply cannot be squared with Sections 1-14 and 52-165, as such, the Motion In Limine should be denied. Governmental Weather Reports are admissible as “Public Records or Reports” pursuant to Connecticut Code of Evidence § 8-3 (7). Section 8-3 (7) of the Code of Evidence establishes that public records in any form are admissible if they were made by a public official under duty to make it; if the record was made in the course of official duties; and either the official or someone with a duty to transmit the information had personal knowledge of the matters contained in the record. The plaintiff respectfully submits the Court may take judicial notice that the National Oceanic and Atmospheric Administration is the parent agency to the National Weather Service. The whole raison d’étre for the NOAA and the NWS is to “provide weather, water and climate data, forecasts, warnings, and impact-based decision support services for the protection of life and property and enhancement of the national economy. https://www.weather.gov/about/; All of NOAA’s activity has been legislatively authorized following the creation of the administration by executive order. See, e.g., 15 U.S.C. §1511; U.S. Congress, House of Representatives, Reorganization Plans Nos. 3 and 4 of 1970, “Message from the President of the United States Relative to Reorganization Plans Nos. 3 and 4 of 1970,” 91st Cong., 2nd sess., July 9, 1970, No. 91- 366, p. 6; https://crsreports.congress.gov/product/pdf/R/R47636/2. In short, there is no serious dispute that the data recorded and retained by NOAA and the NWS are generated by those within the Administration with the duty to do so. The analysis is similar as to the New Canaan weather reports. There is no significant question that the town requires the weather data, that they hired a contractor to provide it under contract and that the contractor has a business obligation and duty to transmit the data to the town. All of the records are admissible under the Connecticut Code of Evidence. The Motion misquotes the authorities upon which the defendant relies. In support of the Motion, the defendant mis-cites two cases: In Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 38 (1978) , the Court noted two factors relevant to admissibility. An item in a business record may be admissible if either it was based on the personal knowledge of the entrant “or on the information of others with personal knowledge who are under a business duty to transmit such information to the entrant.” Id. (emphasis added). The defendant completely omits the second clause of the critical sentence upon which it relies and completely ignores the “under a business duty to transmit” portion of that clause. In that case, the Court admitted not only the personal observations of the declarant but also with the “subordinate findings” underlying the report. Jd. at 38. The result should be the same here. The defendant citation of D’Amato v. Johnson, is similarly deficient. Again, the defendant deletes the portion of the opinion which holds that “information transmitted to [the record keeper] by an observer whose business duty it was to transmit it to [the record keeper] was admissible. D'Amato v. Johnston, 140 Conn. 54, 59 (Conn. 1953). The defendant’s failure to correctly cite the authorities upon which it relies makes the entire brief misleading on its face. Furthermore, D’Amato makes the Court’s rationale clear. The Business Record exception is not intended “to permit the receipt in evidence of [business] entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duty in relation thereto.” D'Amato v. Johnston, 140 Conn. 54, 59 (Conn. 1953). In that case, the Court excluded a voluntary third-party statement in a hospital record to the effect that the plaintiff was intoxicated when it was not recorded or relevant to a proper diagnosis or treatment of the plaintiff's injuries. Jd., at 61. In D’Amato, there were two levels of hearsay to be considered. While the record itself was admissible, certain information was recorded which was not related to the business at hand or the purpose for which the record was created. That fact pattern is a well-established consideration regarding Business Record statute. See, e.g. In re Barbara J., 215 Conn. 31, 40 (1990). In this matter, there is no hearsay within hearsay. So, even if the defendant had correctly quoted the authorities cited in the Motion, their rationale does simply not apply in this case. To be clear, neither of the cases cited by the defendant supports exclusion of the governmental weather reports in this case - all of which were generated by governmental employees or persons expressly retained for governmental purposes. There is no suggestion that any “volunteer” provided information. There is no suggestion that any of the information was not produced for a governmental purpose. In the absence of such a claim, the defendant’s argument has no merit. To the extent the plaintiff offers the weather reports to impeach defense witnesses it is, by definition not hearsay as admission is sought for reasons other than the truth of the matters asserted. As a court is no doubt aware, hearsay is defined as an out-of-court statement offered to prove the truth of a matter asserted therein. CT Code of Evidence §8-1 (3). It is fundamental law that evidence offered for the purposes of impeachment is not hearsay, by definition. United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008); Whole Foods Mkt. Group, Inc. v. Wical Ltd. P'ship, No. 1:17-CV-01079-RCL, 2019 WL 6910168, at *1; See, United States v. Ballou, 59 F. Supp. 3d 1038, 1058 (D.N.M. 2014) Because there is a dearth of case law in Connecticut, Federal precedents are instructive. In each case cited above, the court acknowledged that otherwise inadmissible hearsay may be used for impeachment and is therefore not hearsay at all. In this case, the defendant proposes to prove their ongoing storm special Defense. In doing so, presumably, the defendant will offer witnesses to testify such a storm occurred. In the event such evidence is adduced, plaintiff is entitled to impeach those witnesses using any evidence including documents that would otherwise be considered hearsay. A principal reason for which the plaintiff seeks to admit the reports is to rebut the expected testimony from defendant’s witnesses regarding the Special Defense. The ongoing storm issue is the defendant’s burden of proof and consequently not part of the plaintiff's case in chief. As a result, the plaintiff is not required to offer anything at all regarding the alleged storm until after the defendant submits actual evidence in support of the Special Defense. So, while the governmental weather reports are clearly admissible multiple bases set forth hereinabove, even if the analysis did not apply, the governmental weather reports would nevertheless be admissible for purposes of impeaching the defendant’s witnesses. Under impeachment, the documents are not offered to “prove the matter asserted” by definition, they are not hearsay under Connecticut Code of Evidence §8-1(3) to the extent used for that purpose. CONCLUSION The defendant’s ongoing storm Special Defense requires proof that an ongoing storm actually existed. Contemporaneous government weather reports all but conclusively establish that no such storm was underway at the time and place of the plaintiff's fall. The defense obviously wants to prevent those reports from being presented to the jury. The plaintiff respectfully submits that the governmental weather reports are admissible under Conn Gen. Stat § 52-180(b); Conn Gen Stat §1-14; Conn Gen. Stat §52-165 and Connecticut Code of the Evidence §8-3 (7) and Code of Evidence §8-1(3). Several of those statutes render the reports admissible without reference to a hearsay objection and Section 52-180(b) explicitly permits admissibility irrespective of the declarant’s personal knowledge. We submit the subject documents are admissible under all of the asserted bases, nevertheless, the documents will be admissible if even a single base applies. Accordingly, for the reasons set forth herein, the plaintiff respectfully submits the Motion should be denied and this objection sustained. THE PLAINTIFF, Marion A. Zitani By John J. Mor; i Barr & Mor; in 2777 Summer Street Stamford, CT 06905 Telephone: (203) 356-1595 Fax: (203) 504-8926 Juris No. 431083 CERTIFICATION This is to certify that a copy of the foregoing was sent via electronic mail on April 12, 2024, to the following counsel of record: Joseph Michael Musco Musco & Jassogna 555 Long Wharf Drive 10" floor New Haven, CT 06511 CO \| \ \ John J. Morgat TOWN OF NEW CANAAN TOWN HALL, 77 MAIN STREET NEW CANAAN, CT 06840 TIGER MANN TEL: (203) 594-3054 DIRECTOR OF FAX: (203) 594-3129 PUBLIC WORKS October 6, 2023 Angela |. Fornis Attorney at Law Barr & Morgan 2777 Summer Street Stamford, CT 06905 RE: Weather Sentry/DTN Weather Service Records for January 25 — 27, 2021 Ms. Fornis, The record of weather data provided to your office previously for the dates listed above is a business record of the Town of New Canaan Department of Public Works. The records are maintained by Weather Sentry DTN [The Town's contracted weather service provider] at a website of https://weather.dtn.com/ If you should have any questions, please feel free to call. Regards, Tiger Mann Director of Public Works Town of New Canaan 9/19/23, 3:34 PM. Hourly History ‘Hourly Historical Weather for Town Hall, New Canaan CT WHITE OAK SHADE / FARM (MX0343) for January 25, 2021 Hour Temperature Dew Point Relative Humidity Precipitation Wind Conditions (FY (FY (%) in.) (mph) 12:00 AM EST 23.0 5.0 46 NWat9 Mostly Cloudy 1:00 AM EST. 23.0 6.4 48 NW at9 Mostly Cloudy 2:00 AM EST 21.9 5.0 48 NW at9 Mostly Cloudy 3:00 AM EST 21.9 5.0 48 NWat9 Mostly Cloudy 4:00 AM EST 21.0 6.1 $2 NWat9 Mostly Cloudy 5:00 AM EST 19.9 6.1 54 NWat8 Mostly Cloudy 6:00 AM EST 19.9 61 54 NW at8 Clear 7:00 AM EST 19.9 61 54 NWat7 Clear 8:00 AM EST 21.0 84 57 NW at7 Sunny 9:00 AM EST 24.1 9.0 53 NWat8 Clear 10:00 AM EST 27.0 8.1 44 NWat8 Clear 11:00 AM EST 28.9 8.1 441 NWat9 Sunny 12:00 PM EST 32.0 9.0 38 NWat8 Mostly Cloudy 1:00 PM EST 34.0 10.9 38 NW at8 Sunny 2:00 PM EST 34.0 10.9 38 NWat9 Sunny 3:00 PM EST 36.0 10.9 35 NNW at 9 Mostly Cloudy 4:00 PM EST 34.0 10.9 38 NNW at 8 Mostly Cloudy 5:00 PM EST 33.1 12.9 44 NWat6 Mostly Cloudy 6:00 PM EST 30.9 12.9 47 NNW at 5 Clear 7:00 PM EST 28.9 14.0 53 NNW at 5 Clear 8:00 PM EST 28.9 14.0 53 NNW at 5 Mostly Cloudy 9:00 PM EST 28.0 14.0 56 NatS Mostly Cloudy 10:00 PM EST 28.9 12.9 51 Nat6 Mostly Cloudy 11:00 PM EST 30.0 12.9 49 Naté Mostly Cloudy about:blank WwW "79/23, 3:29 PM Hourly History Hourly Historical Weather for Town Hall, New Canaan CT WHITE OAK SHADE / FARM (MX0343) for January 26, 2021 Temperature Dew Point Relative Humidity Precipitation Wind Conditions Hour (CF) (°F) (%} tn) (mph) 12:00 AM EST 28.9 14.0 53 \NNE at 6 Mostly Cloudy 1:00 AM EST 28.0 14.0 56 W Mostly Cloudy 2:00 AM EST 28.0 15.1 58 'NNE at 3. ‘Mostly Cloudy 3:00 AM EST 28.9 15.1 56 NNW at 3 | Mostly Cloudy 4:00 AM EST 28.9 16.0 58 NNE at 3 | Mostly Cloudy 5:00 AM EST 28.0 16.0 61 NE at3 {Cloudy 6:00 AM EST 28.9 15.1 56 NE at7 {Mostly Cloudy 7:00 AM EST 26.1 15.1 63 INE at 6 | Mostly Cloudy 8:00 AM EST 28.0 16.0 61 jENE at7 | Cloudy 9:00 AM EST 28.9 16.0 58 \ENE at 9 Cloudy 10:00 AM EST 32.0 17.4 54 ENE at 9 Cloudy 11:00 AM EST 32.0 17.1 ENE at 10 | Cloudy 12:00 PM EST 32.0 19.0 59 (ENE at 9 Cloudy 1:00 PM EST 32.0 19.9 61 Eat9 | Snow 2:00 PM EST 32.0 21.9 67 ENE at 10 | Snow 3:00 PM EST 30.9 27.0 85 Eats Snow 4:00 PM EST 32.0 28.0 85 ENE at 8 Snow 5:00 PM EST 32.0 28.9 89 ENE at 8 Snow 6:00 PM EST 32.0 28.9 89 ENE at 9 Freezing Rain 7:00 PM EST 30.9 28.9 92 ENE at 9 Freezing Rain 8:00 PM EST. 32.0 28.9 89 NE at8 Freezing Rain 9:00 PM EST 30.9 28.0 89 NE at7 Freezing Rain 10:00 PM EST 32.0 28.9 89 NE at7 Freezing Rain 11:00 PM EST 32.0 28.9 89 NE at6 Freezing Rain about:blank WW 9119/23, 5:33 PM Hourly History Hourly Historical Weather for Town Hall, New Canaan CT WHITE OAK SHADE / FARM (MX0343) for January 27, 2021 Hour Temperature Dew Point Relative Humidity Precipitation Wind Conditions (CF) ("F) fo) (im) (mph) 12:00 AM EST 30.9 28.9 92 NNE at6 Freezing Rain 1:00 AM EST. 30.9 28.9 92 NE at3. 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