Opinion
No. CV 06 5001862
February 18, 2009
MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT
The defendant, G.R. Realty moves to set aside the verdict delivered by the jury on January 15, 2008. This motion was filed in a timely manner along with a motion for a collateral source hearing. Postjudgment discovery was necessary and these motions were not presented to the court for decision until December 2008.
The parties reached an agreement with regard to the collateral source issue but were unable to agree regarding the Motion to Set Aside the Verdict. The defendant's initial motion to set aside the verdict, dated January 24, 2008 raised ten issues as to why the court should set aside the jury's verdict. In support of this motion the defendant briefed five issues as to why the verdict must be set aside. The court will consider those issues that have been briefed.
The defendant's arguments relate to evidentiary rulings of the court and the instructions given by the court. First, the defendant asserts that the court failed to introduce evidence taken by judicial notice to the jury. Second, the defendant claims that the court erroneously admitted into evidence the report of the ambulance crew that first provided the plaintiff with assistance. Third, the defendant claims that the court erred in instructing the jury that the plaintiff could be an invitee under the circumstances of this case. Fourth, the defendant asserts the court committed error when it failed to instruct the jury with regard to Kraus v. Newton, 211 Conn. 191 (1989). Finally, the defendant asserts that the court failed to correctly instruct the jury on the issue of constructive notice. The Motion to Set Aside the Verdict thus asserts that the verdict was contrary to the law based upon evidentiary errors and errors in the court's instruction of the jury.
I
The plaintiff Christine Ulmsteadt alleged that on February 6, 2004 at approximately 3:00 pm that she was walking on a sidewalk in front of the building located at 128 Campbell Ave. in West Haven. The defendant G.R. Realty et al. was the owner of the multifamily residence located at 128 Campbell Ave. The plaintiff claimed that she slipped and fell on ice, snow and slush and that she fractured her ankle. The plaintiff claimed these damages were caused by the negligence and carelessness of the defendant. The defendant denied the allegations of negligence and asserted special defenses that the plaintiff, herself was negligent.
II
Practice Book Section 16-35 authorizes the filing of a motion to set aside the verdict within ten days after the verdict is accepted. "The motion to set aside the verdict is generally based upon one or more of the following basic grounds:(1) it is contrary to the law; (2) it is against the evidence; and (3) the damages are either excessive or inadequate." Yules, Connecticut Trial Practice, second edition, section 11.24.
The power to set aside a verdict is to be exercised with "great caution" and only when the trial judge "is entirely satisfied upon the authorities or the statutes, that his error is unmistakable and must have been unquestionably harmful." Jackiewiez v. United Illuminating Co., 106 Conn. 310, 311 (1927).
"When we review a challenged jury instruction, [t]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues . . . The court should submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence . . ." Suttcliffe v. FleetBoston, 108 Conn.App. 799, 808-09 (2008) (Citations omitted; internal quotation marks omitted.) When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. We do not critically dissect a jury instruction." (Citations omitted; internal quotation marks omitted.) Ancheff v. Hartford Hospital, 260 Conn. 785, 811 (2002). "The trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where 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 . . ." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702, 900 A.2d 498 (2006).
III
The court will first examine the defendant's claims of error with regard to the introduction of evidence during the trial. The plaintiff claims that the court failed to introduce evidence taken by judicial notice to the jury. During the trial the court, at the request of the plaintiff, took notice of an Ordinance of the City of West Haven regarding the responsibility of the Owners of abutting land. The ordinance provided "The owner or person in possession and control of land abutting a public sidewalk shall have the same duty of care with respect to presence of ice and snow on such sidewalk toward the portion of the sidewalk abutting his property as the City of West Haven had prior to the effective date of any ordinance adopted pursuant to the provisions of this Article and shall be liable to persons injured in person or property where a breach of said duty is the proximate cause of said injury."
The defendant, Mr. Zoarski testified, consistent with the ordinance, that it was his responsibility to keep the sidewalk clear of snow and ice conditions. The defendant further testified about the manner in which he took care of that responsibility on a regular basis. The defendant claims that the failure of the plaintiff to bring the ordinance to the jury as a full exhibit creates a foundational defect with regard to the plaintiff's claim. The court did take judicial notice of the West Haven ordinance over the objection of the defendant. Even if the plaintiff did not ask that the ordinance be marked as a full exhibit and the court did not formally read the ordinance to the jury, the court is not persuaded that this is an error of such magnitude as to require the setting aside of the jury's verdict. The court's charge was consistent with its ruling taking judicial notice of the ordinance. The court is persuaded that there was adequate evidence to support the jury's finding of fact that the defendant had responsibility to clear the sidewalk in the location where the plaintiff fell. There was no need to introduce as full exhibit the ordinance of which the court had taken judicial notice.
The defendant's second claim related to evidentiary rulings of the court asserts that the court erroneously admitted into evidence portions of the report of the ambulance crew that first provided the plaintiff with assistance (Exhibit 2). The defendant claims that court should not have admitted those portions of the report using the language "slip and fall on a sidewalk with snow and slush." Specifically the defendant asserts that the EMT was not present when the plaintiff fell so that the information regarding the mechanism of the fall was hearsay. Further the defendant claims that the information was not necessary for medical treatment and therefore should not have been admitted by the court.
The court notes that the exhibit indicates identifies the plaintiff as the source of information as to the mechanism of injury. "54 yo wo sts slip fall on sidewalk c snow/slush." In light of the testimony of the plaintiff as well as other witnesses as to the conditions where the plaintiff was found after she fell, the court is not persuaded that the inclusion of the apparent statement of the plaintiff in the body of the report was in error or was an error of such magnitude as to provide grounds for setting aside the jury's verdict.
IV
The court now turns to the errors claimed by the plaintiff with regard to the charge to the jury. The defendant alleges the court improperly charged the jury with regard to the plaintiff's status on the defendant's property, failed to charge the jury with regard to the obligation of a property owner to remove snow and ice upon completion of the storm and finally failure of the court to properly charge the jury on the issue of constructive notice.
A
Additional information is necessary to place the defendant's complaints in context. The ambulance reports (Exhibit 2) indicates that the crew was dispatched to the scene between 3:30 p.m. and 4:00 p.m. on February 6, 2004. The weather reports provide observations at 3-hour intervals for the date of February 6, 2004. At 10:00 a.m. there were observations freezing rain and mist with a temperature of 32 degrees Fahrenheit. At 1:00 p.m. there were observations of rain and mist with a temperature of 33 degrees Fahrenheit. At 4:00 p.m. there were observations of rain and mist with a temperature of 35 degrees Fahrenheit. The weather reports also detail precipitation and temperature observations for more than a month prior to the plaintiff's fall. (Exhibit 12.) The plaintiff fell after 3:00 p.m. Further the plaintiff testified as to the weather conditions, as well as Joan Lippord, a tenant of the defendant.
The plaintiff testified that there snow piled between the curb of the street and the sidewalk in front of the defendant's property. The piled snow had not fallen that day but was from a storm earlier in the week. She further testified that she stepped from the street up on top of a depression in the pile of snow then as she was stepping down onto the sidewalk she slipped on ice that was covered with water or melting snow. There was significant direct and cross examination of the plaintiff as to the precise location of her fall — did she step onto the side walk or was she still in the area between the curb and the sidewalk (where the snow was piled). There was no evidence of any snow falling after 10:00 a.m. and no freezing rain falling after 1:00 p.m.
As previously noted the court took judicial notice of the ordinance of the City of West Haven that established the duties of the defendant with regard to the sidewalk in the front of the defendant's property.
With regard to the plaintiff's status on the sidewalk the court charged that "If you find that the plaintiff slipped on the sidewalk the plaintiff is what the law calls an invitee. If you find that the plaintiff slipped on the grassy area then the plaintiff is not an invitee and your verdict must be for the defendant. As a user of the public sidewalk, the plaintiff would be on the premises as an invitee, that is, one who goes upon the premises at the express or implied invitation of the possessor for the possessor's benefit or for the mutual of both."
B
The defendant's argument with regard to the "invitee" status of the plaintiff is premised in part upon the claim that the court failed to admit into evidence or submit to the jury the West Haven ordinance. There was an adequate factual foundation for the jury to conclude that the plaintiff's slip and fall occurred on the sidewalk in front of the defendant's property and that the defendant had owed a duty to the plaintiff as a user of the sidewalk. The court's instruction delineated that if the fall had occurred in an area other than the sidewalk the defendant would not be liable to the plaintiff. The court is not persuaded that it improperly instructed the jury with regard to the plaintiff's status if the jury found that the fall occurred on the sidewalk.
C
The second claim is that the court failed to advise the jury with regard to the principles of the case of Kraus v. Newton, 211 Conn. 191, 197-98 (1989). The defendant requested that the court charge "in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps." The court did not give the charge as requested based upon the lack of evidence of an ongoing snow or ice storm that is a predicate for such a charge.
D
The final claim of the defendant is that the court improperly charged the jury with regard to the issue of constructive notice. The defendant claims there is absolutely no evidence of the length of time the ice on which the plaintiff claims to have fallen was present. As noted previously there is evidence from the testimony of the plaintiff as well as from the exhibits as to the nature and duration of the precipitation that fell during the day on February 6, 2004. The court has reviewed the charge that it provided to the jury on this issue and does not concur with the arguments and characterizations put forward by the defendant. Further the court did charge the jury regarding the defendant having a reasonable time to remedy a defect after notice. "In deciding the issue of notice, the subsidiary underlying question is whether the defect had existed for such a length of time that the defendant, in the exercise of due care, should have discovered it in time to have remedied it prior to the plaintiff's fall. What constitutes a "reasonable time" is a question of fact for you to determine based on the circumstances you find to have existed in this case."
V
The court finds that the verdict in this case is not against the evidence. The court further finds that the verdict is not contrary to law. The motion to set aside the verdict is denied.