Opinion
CV065000951S
10-12-2017
Thomas Ciarlo v. Eve Yvette George et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (#151)
Andrew W. Roraback, J.
I
BACKGROUND
The defendant, Yvette George, has filed a motion pursuant to Practice Book § 16-35 asking the court to set aside the jury verdict rendered in favor of the plaintiff, Thomas Ciarlo. The plaintiff was awarded economic damages of $76, 861.39, past non-economic damages of $390, 000.00, and future non-economic damages of $930, 000.00, amounting to $1, 396, 861.39 in total, after a jury found that the defendant's negligence was the proximate cause of injuries sustained by the plaintiff when he fell from a ladder while working on premises owned by the defendant. The total award to the plaintiff was reduced to $977, 802.97 because the jury found him to be 30 percent at fault for this incident. The plaintiff has objected to this motion. Both parties filed briefs, and the Court heard oral argument on July 10, 2017.
Practice Book § 16-35 speaks only to the time frame within which motions to set aside a verdict must be filed. It is Practice Book § 16-37 which furnishes the authority for such motions. The defendant is not filing this motion pursuant to § 16-37 because it provides that a motion to set aside a verdict may only be filed by a party who has moved for a directed verdict. The defendant did not file a motion for a directed verdict in this case.
II
DISCUSSION
The defendant argues in her motion that the court should set aside this verdict on the basis that " [t]he plaintiff has failed to make out a prima fac[i]e case of negligence in this premises liability case." The plaintiff asserts that a motion to set aside a verdict which relies on an alleged insufficiency of evidence is not properly before the court pursuant to Practice Book § § 16-35 and 16-37 because the defendant failed to move for a directed verdict.
Generally speaking, a motion for directed verdict must be made before a court may properly entertain a motion to set aside a verdict. " The rules of practice establish a procedure pursuant to which a motion for a directed verdict, if denied, is considered renewed by the motion for judgment notwithstanding the verdict . . . Practice Book § 16-37 provides for a motion for judgment notwithstanding the verdict in accordance with [the party's] motion for a directed verdict . . . The purpose of the motion for a directed verdict with respect to the motions to set aside and for judgment notwithstanding the verdict is to give notice to the trial court . . ." (Citations omitted; internal quotation marks omitted.) Bauer v. Pounds, 61 Conn.App. 29, 34-35, 762 A.2d 499 (2000), citing Salaman v. Waterbury, 246 Conn. 298, 309, 717 A.2d 161 (1998). " It has long been the rule that [a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict . . ." Bauer v. Pounds, supra, 35, quoting Salaman v. Waterbury, supra, 311 (Katz, J., concurring).
The plaintiff cites to our Supreme Court's commentary in footnote forty-four of its decision in Willow Springs Condominium Ass'n, Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 49-50 n.44, 717 A.2d 77 (1998), in support of its contention that the defendant's motion should not be considered. The footnote provides in relevant part: " We recognize that a trial court has the inherent authority to set aside a verdict even where no motion to set aside the verdict has been filed . . . This does not mean, however, that [the party seeking to have the verdict set aside] need not have raised issues arising during the trial, in a motion for a directed verdict, in order for the appellate tribunal to review the trial court's denial of a motion to set aside that verdict. See W. Galllagher, Post-trial Motions (1980) p. 22 ('an absolute prerequisite to the motion under [Practice Book § 16-37] is the filing of a motion for a directed verdict')." (Citations omitted.) Id.
The trial court does have the inherent authority to set aside a verdict, but only under certain circumstances. In Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 564-65 n.9, 845 A.2d. 417 (2004), the court noted that " [t]he exercise of [the trial court's inherent authority to set aside a verdict when no motion for a directed verdict has been filed] is appropriate where a party could not raise an issue in a motion for a directed verdict during trial because the issue did not arise until after the jury returned its verdict." (Emphasis in original.) Id. The precept of this footnote has more recently been adopted by Judge Lee in Vaid v. Equinox Greenwich Old Track Road, Inc., Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV-13-6019426-S, (April 15, 2016, Lee, J.) (trial court has authority to set aside verdict in absence of motion for directed verdict only when issue arises after jury returns its verdict).
In the present case, the grounds raised in the defendant's motion to set aside the verdict all arose prior to the return of the jury's verdict. The defendant seemingly argues that there ought not to be any limitation on the trial court's inherent power to set aside a verdict. This argument is unpersuasive given the unambiguous pronouncements in Supreme, Appellate and Superior Court opinions as to existence of and rationale for such a limitation. The issues relied upon by the defendant as a basis for her motion to set aside the verdict could have appropriately been raised in a motion for a directed verdict. Because they were not, this court holds that it need not reach the merits of the claims raised in this motion, and the defendant's motion is therefore denied.
In support of this assertion, the defendant points to the broad language of several cases including Salaman v. Waterbury, 246 Conn. 298, 309 n.4, 717 A.2d 161 (1998) which notes: " We have observed that the trial court has inherent power to set aside the verdict and that the Practice Book merely lays out an advisable manner of exercising [that power]." (Internal quotation marks omitted.)
Irrespective of the foregoing, even if the court were to reach the merits of the defendant's motion, it would still be denied. The defendant asserts that there was no proof of her knowledge of a dangerous condition on the premises, nor was there proof of her receiving any notice of a specific defect prior to the subject incident, and as such the jury's verdict is contrary to the law, contrary to the evidence, or the result of the jurors' improper application of legal principles in the case. These arguments are unavailing.
" A party challenging the validity of the jury's verdict on grounds that there was insufficient evidence to support such a result carries a difficult burden. In reviewing the soundness of a jury's verdict, we construe the evidence in the light most favorable to sustaining the verdict . . . Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine . . . whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . [I]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it." (Citations omitted; internal quotation marks omitted.) Broadnax v. New Haven, 294 Conn. 280, 299, 984 A.2d 658 (2009).
In this case, there was no dispute that the plaintiff had the status of an invitee when he came to inspect the roof of the defendant's premises on the date of the fall. The court therefore instructed the jury that the defendant owed the plaintiff: " 1. The duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe; 2. The duty to warn or guard the visitor from being injured by reason of any defects that the invitee could not reasonably be expected to discover; and 3. The duty to conduct activities on the premises in such a way so as not to injure the visitor."
On page fifteen of the plaintiff's brief in opposition to this motion, he indicates by way of a [sic] notation that the court mistakenly once used the pronoun her instead of him in the section of the charge describing the duties owed to an invitee. It should be noted that this mistake does not appear in either the copy of the instructions given to the jury (court exhibit B) or the official transcript of that portion of the charge. The court attributes this confusion to the fact that the copies of the charge furnished to the parties were draft copies provided in advance of final proofreading by the court.
The instruction given to the jury on the issue of liability and constructive notice included the following: " In order for the plaintiff to recover in the absence of proof that the defendant created the condition or actually knew of it, the plaintiff must prove that the defendant had constructive notice. That means that the defendant, using reasonable care, should have known of the unsafe condition in time to have taken steps to correct the condition or to take other suitable precautions.
" You may consider whether the defendant inspected the premises on a reasonable basis or in a reasonable way in determining whether the defendant should have known of the unsafe condition. You may consider the length of time the condition had existed in determining whether the defendant should have known of the condition had the defendant used reasonable care."
There were no exceptions to the charge placed on the record by either party.
Viewed in the light most favorable to the plaintiff, the jury could have made the following findings and reasonable inferences, based on the testimony and documentary evidence admitted in this case.
The defendant is an elderly woman who inherited a commercial building from her late husband. That building was leased to a florist at the time of the incident giving rise to this claim. The defendant had never been to the building after her husband died in 1996. She did not have a property manager at the time of the fall, and her cognitive abilities were impaired by dementia. In response to a complaint about a roof leak from the then tenant of the subject building, the defendant's son, William George, enlisted the assistance of the plaintiff, a longtime friend of the family, who had many years of experience in the roofing business, to inspect the building and determine the cause of the leak. The plaintiff was given no warning about the condition of the roof or the fact that ice might be present on the rake of the roof where he might need to rest his ladder. There was no evidence that the defendant, or anyone on her behalf, undertook any inspection of the property prior to the plaintiff's fall.
The plaintiff responded to this request for help by going to the subject building and raising a ladder owned by him, and with which he was very familiar, along the side of the building so that the top of the ladder rested on a rake panel which was covered with aluminum. The plaintiff climbed the ladder and upon reaching the roof observed that at least 80 percent of the roof was covered in snow and ice. Weather records introduced at trial indicate that precipitation and temperature fluctuations in the days preceding the fall were such that the jury could conclude that the snow and ice discovered by the plaintiff on the roof had been there for several days prior to the fall. After conducting this preliminary visual inspection of the roof, the plaintiff began to descend the ladder in order to secure additional clothing and a shovel. The ladder then slid to the plaintiff's left causing him to fall from the ladder and shatter both of his legs. The plaintiff's injuries resulted in significant pain and suffering, gave rise to numerous medical procedures, and caused him to undergo a significant period of intensive rehabilitation.
The plaintiff inspected the scene of his fall after it occurred and noted that there was no damage to the aluminum rake cover, or to its paint, against which his ladder had rested. These observations bolstered his conviction that ice must have been present on this aluminum rake cover at the time he climbed the ladder, and that it was this ice which resulted in both him and the ladder falling.
The evidence was also such that the jury could have found that this ice was the cause of the fall, and that this ice had been present on the aluminum rake cover for a sufficiently long period of time prior to the fall that the defendant would have discovered it had she undertaken a reasonable inspection of the premises. The jury also could have found that had she conducted such an inspection, she would have been able to warn the plaintiff of the existence of ice on the roofline.
In light of the foregoing, there was an adequate basis for the jury to conclude that the defendant breached a legal duty that she owed to the plaintiff, and that this breach was the proximate cause of the injuries sustained by the plaintiff. The defendant's claims that there was not sufficient evidence from which the jury could have found that the defendant had constructive notice of the dangerous condition which caused the fall are unavailing.
III
CONCLUSION
For the foregoing reasons, the defendant's Motion to Set Aside Verdict is denied.