Opinion
FBTCV126027299
03-01-2017
Gregg Fisk v. Town of Redding et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT
Michael P. Kamp, J.
Following a jury trial in which a verdict was rendered in favor of the defendant, the plaintiff now moves for the court to set aside the verdict pursuant to Practice Book § 16-35.
The plaintiff, Gregg Fisk, commenced this litigation by way of a complaint, dated May 1, 2012. The plaintiff proceeded to trial on a substituted complaint, dated July 15, 2016. The substituted complaint alleges that on August 27, 2011, the plaintiff was caused to fall approximately six feet off of a block retaining wall located at 2 Main Street in the Georgetown section of Redding, Connecticut. The complaint was in a single count alleging that the defendant, the Town of Redding, caused to be constructed the block retaining wall and that such wall constituted a public nuisance. The defendant answered the complaint with a general denial and alleged special defenses of assumption of the risk and the plaintiff's own reckless misconduct.
After the jury was selected, evidence commenced on July 19, 2016. Multiple witnesses testified and numerous exhibits were offered into evidence on the issues of liability and damages. The plaintiff offered testimony from a number of expert witnesses including Richard Zeigler, a civil engineer. Evidence was completed on July 21, 2016. On July 26, 2016, following closing argument, the court instructed the jury on the law. Interrogatories were submitted to the jury. Following deliberations, the jury returned a verdict for the defendant.
On August 2, 2016, the plaintiff filed a motion to set aside the verdict. On August 10, 2016, the plaintiff filed a motion for a new trial. On August 15, 2016, the defendant filed an objection to both motions. The plaintiff filed a memorandum of law on October 12, 2016. The defendant filed a memorandum of law on November 16, 2016. The plaintiff filed a supplemental memorandum on November 22, 2016. The plaintiff asserts eight grounds in support of his motion to set aside the verdict.
The first of these is the singular ground supporting the motion for a new trial.
The plaintiff argues that the verdict should be set aside because the jury's determination, in response to interrogatories, that the wall was an inherently dangerous condition but not an unreasonable or unlawful use of the land, is contrary to the admitted evidence and the applicable law and represents an inconsistent verdict. The plaintiff also asserts that the court erred in not admitting into evidence the applicable Redding zoning regulations. The plaintiff claims the court should have permitted the jury to hear testimony concerning the placement of a fence on top of the retaining wall that was installed after the date of the plaintiff's fall. The plaintiff also argues the court erred in not properly instructing the jury on the defenses of assumption of the risk and reckless misconduct. Finally, the plaintiff also claims error when the court failed to instruct the jury on the issues of intoxication and contributory negligence not being a defense to public nuisance. The court heard argument on the motions on December 2, 2016, and took the papers.
DISCUSSION
" The standard of review governing our review of a trial court's denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
I
The plaintiff's first claim of error is that the verdict should be set aside because the jury's responses to the jury interrogatories are inconsistent and contrary to the law. A total of seven interrogatories were submitted to the jury. The first five interrogatories required the jury to make a finding as to each element required for the plaintiff to prove a cause of action based upon public nuisance. The two remaining interrogatories concerned special defenses raised by the defendant. During their deliberations the jury submitted a question to the court. The question was: " If we are not all in agreement on questions one and two but are on question three, are we able to rule in favor of the defendant?" Court Exhibit E. Prior to responding to the jury question, the court and counsel had an extensive colloquy on the record. The plaintiff requested that the court instruct the jury that if it finds, in response to interrogatory 1, that the wall without a fence was inherently dangerous, then it must find, in response to interrogatory 3, that the defendant's use of the land was unreasonable or unlawful. The defendant objected to the plaintiff's requests.
Following the colloquy the court instructed the jury as follows: " Ladies and Gentlemen, I instructed you on the law and you have my charge as a Court exhibit. And the plaintiff has the burden of proof, as I indicated in my charge, to prove essentially four elements of an absolute public nuisance and those four elements are outlined on page 14 and 15 of my charge. If the jury can unanimously agree that the plaintiff has not proven one of those four elements and you can agree on that, and in this case if it's number three and you so indicate on your jury verdict interrogatories and you check that unanimously in the negative, then you can return a verdict in favor of the defendant. But you must all unanimously agree that he has not proven one element of the cause of action." Thereafter, after further deliberations, the jury returned a verdict for the defendant.
The Connecticut Supreme Court in State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987) (Tippetts), held: " Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) These separate elements, which are essential to prove a cause of action for public nuisance, have been recited by our courts repeatedly since Tippetts . They were recently cited in an appeal taken by the plaintiff in this case when the court, Radcliffe, granted the co-defendant, BL Companies, Inc., motion for summary judgment. See Fisk v. Redding, 164 Conn.App. 647, 138 A.3d 410 (2016) (affirming the trial court).
The case of Kumah v. Brown, 160 Conn.App. 798, 126 A.3d 598 (2015), presented issues similar to the case at bar. Kumah involved a claim by a motorist who was injured when his vehicle struck a fire truck, which was parked diagonally across Interstate 95 in order to alert drivers of a tractor trailer accident that blocked the right and center lanes of the highway. The plaintiff brought a negligence claim and a claim for public nuisance against the Town of Greenwich, whose volunteer fire department had responded to the accident scene. The plaintiff claimed on appeal that the trial court erred when it denied his motion to set aside the verdict because the jury's answers to interrogatories in the verdict form were inconsistent. The jury's answers to interrogatories reflected that the defendant created a condition that had a natural tendency to create danger and inflict injury to person or property, but that the condition was not an unreasonable use of the land under the circumstances. The court held that these responses to interrogatories were not necessarily inconsistent. The plaintiff here points to footnote 6 in Kumah, where the court discusses the reasonableness element of a public nuisance claim, which is determined by a balancing test wherein the gravity of the harm is weighed against the utility of the conduct. Id., 806-07 n.6.
In this case, the jury was instructed that, in making a determination with regard to the reasonableness element of a public nuisance claim, it must consider " all the surrounding factors." The plaintiff did not take exception to this aspect of the court's instruction, and now seeks to argue that this instruction improperly excluded the balancing test. Nonetheless, as the instruction required the jury to consider all the attendant circumstances in making a determination regarding the reasonableness element, the jury would need to consider, as a matter of course, both the gravity of the harm and the utility of the conduct.
The jury had sufficient evidence to make a factual determination on this element. Numerous witnesses testified that the wall was part of an overall " Streetscape Project" that involved the defendant and the State of Connecticut, and that the design and construction of the wall was approved by engineers from the Department of Transportation. There was also expert testimony that the wall complied with applicable building code requirements.
For these reasons-that the court instructed the jury to consider all attendant circumstances in determining whether the use of the land was reasonable, that the plaintiff did not take exception to this aspect of the court's charge, and that there was sufficient evidence to permit the jury to make a factual determination regarding the reasonableness element and thereby render a verdict in favor of the defendant-the court finds that the jury's responses to interrogatories are neither inconsistent nor contrary to the law. The plaintiff's first claim of error fails.
II
The second ground upon which the plaintiff seeks to set aside the verdict is the court's failure to allow into evidence that the retaining wall violated the defendant town's zoning regulations.
No evidence was presented that the zoning regulations applied to this project. No witness testified that the zoning regulations controlled or applied to the construction of the retaining wall. The plaintiff's own liability expert, Richard Ziegler, a civil engineer, did not offer testimony concerning the application of the zoning regulations.
Accordingly, there was no evidence to establish that the Redding zoning regulations were relevant and admissible as evidence.
III
The third ground upon which the plaintiff seeks to set aside the verdict is the court's excluding evidence concerning the installation of a fence on the wall, which was undertaken after the date of the plaintiff's fall. The issue regarding the admissibility of this evidence was the subject of a motion in limine filed by both parties prior to the commencement of the evidence. After hearing argument on the motion, the court granted the motion in limine to preclude any evidence of the installation of the fence after the date the plaintiff's fall.
The Connecticut Code of Evidence § 4-7 provides in part that " [e]xcept as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures." In this case the defendant admitted control over the retaining wall. Further, the evidence was not offered to establish the feasibility of precautionary measures, nor is such feasibility presently at issue. Accordingly, evidence of the installation of the fence following the occurrence alleged in the plaintiff's complaint was a subsequent remedial measure and not admissible under the Connecticut Code of Evidence § 4-7.
IV
The plaintiff also argues-in his fourth and fifth asserted grounds for setting aside the verdict-that the court failed to properly instruct the jury on the defendant's special defenses of assumption of the risk and reckless misconduct. The plaintiff does not raise the issue of the court's failure to properly charge the jury in his August 10, 2016 motion for a new trial nor in his October 11 and November 22, 2016 briefs in support of his motion to set aside the verdict.
In his August 2, 2016 motion to set aside the verdict, the plaintiff asserts that the court should have instructed the jury that both assumption of the risk and reckless misconduct require a finding that the plaintiff had a subjective knowledge and appreciation of the risk of falling six feet off of the end of the wall. The court's charge to the jury on these special defenses incorporated language that required the jury to determine whether the plaintiff knew and comprehended the danger of proceeding in the manner he did. The court's charge correctly stated the law on the two special defenses.
V
The final grounds upon which the plaintiff relies-in paragraphs 7 and 8 of his motion to set aside the verdict-concern the court's asserted failure to instruct the jury that contributory negligence is not a defense to absolute nuisance and that drinking to intoxication constitutes negligence rather than recklessness.
The jury never reached the issues relating to the special defenses of assumption of the risk and reckless misconduct. If a trial court does not reach the merits of all special defenses, the result is that the special defenses not reached may be renewed at retrial. See Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 826-27 n.16, 717 A.2d 1232 (1998).
" The defendants did not prevail on their special defenses claiming that the Science Center had acquired an easement by grant, implication or necessity. On appeal, the Science Center has renewed only its special defense of easement by implication. Katherine Vidal Smith, by contrast, renews only the special defense of easement by express grant. All the defendants also filed special defenses claiming laches and equitable estoppel. Because the trial court did not reach the merits of any of these special defenses, they may be renewed at retrial." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 826-27 n.16, 717 A.2d 1232 (1998).
Nonetheless, the court's charge to the jury properly addressed the special defenses of recklessness and intoxication. The court instructed the jury that voluntary consumption of alcohol is highly relevant as to proof of recklessness. See State v. Jenkins, 88 Conn.App. 762, 775, 872 A.2d 469 (2005).
CONCLUSION
As the court in Jackson established, the trial court has broad legal discretion in deciding whether to set aside a verdict. Jackson v. Water Pollution Control Authority, 278 Conn. 692, 900 A.2d 498. There was sufficient evidence to permit a jury to reach its verdict. The jury's responses to the interrogatories were not inconsistent because there was evidence that allowed the jury to determine that although the wall was unreasonably dangerous it was not an unreasonable use of the land. There is nothing to suggest that the jury was influenced by prejudice, corruption or partiality. Finally, there is no " manifest injustice of the verdict, " and certainly none that is " so plain and palpable as to clearly denote that some mistake was made by the jury in the application of legal principles." Id.
Based on the foregoing, the plaintiff's motions to set aside the verdict and for a new trial are denied. Judgment may enter in favor of the defendant.