Opinion
No. CV 08 5020458
July 22, 2011
MEMORANDUM OF DECISION RE MOTION FOR DIRECTED VERDICT AND TO SET ASIDE THE VERDICT
Preliminary Statement
Following a jury trial and verdict in favor of the plaintiff, the defendant filed a motion to set aside the verdict and to direct a verdict for the defendant. He advances the same arguments raised at the conclusion of the plaintiff's case at which point the defendant sought a directed verdict. The court reserved on the motion for a directed verdict and decides both pending motions herein.
The defendant's primary argument does not involve any alleged insufficiency of the plaintiff's evidence. The motion is premised on the argument that the entirety of the plaintiff's complaint sounded in negligence per se; that the complaint failed to allege any common-law negligence; that the court determined that the negligence per se count would not go to the jury; and therefore, no common-law negligence claims should have been given to the jury to decide. The defendant also seeks a directed verdict based on the insufficiency of the plaintiff's proof as to causation and duty.
The evidence at trial
The court does not intend an exhaustive description of the evidence and the findings that could flow therefrom.
With the evidence introduced at trial, the jury could have found the following facts.
The defendant runs a pub in Brookfield, Connecticut called Griff's Olde Mug-n-Munch. It leases the premises on which the pub operates from Westchester Shopping Center, LLC, a former defendant against whom the plaintiff withdrew his claims. The plaintiff was a very frequent patron of the pub.
When the pub owner took over the operation of the pub, she began enforcing the "no smoking" requirements under Connecticut law. As a result, the patrons of the pub were directed to the back deck of the premises if they wanted to smoke. The back deck was also the rear entrance to the pub. It was approximately 3 1/2 feet wide and 10 feet long. It had stairs that led down to the parking lot. The defendant provided ashtrays to the patrons using the back deck for smoking and kept it clean. The back deck was also the means of ingress and egress for an adjoining business.
The railing on the back deck was approximately 32-33 inches high. The current Building Code, though not applicable because the building was built prior to its enactment, requires that such deck railings be 42 inches high. A railing that is 42 inches high is at or above the average center of gravity for a man. This reduces the likelihood that a person will fall over the railing.
On June 10, 2007, the plaintiff was a patron at the pub. He was driven to the pub by the pub manager (and husband of the owner), who was a friend. He drank approximately one and a half beers, and a shot of liquor. He went outside on the deck to smoke a cigarette. There were other people present. He positioned himself with his back to the railing, facing the building. One of the other patrons present was, like the defendant, a very big man. While the testimony is conflicting, the jury could have found that when the other patron's cell phone rang, he brushed past the plaintiff. Immediately after the cell phone rang, the plaintiff toppled over backwards to the parking lot below. He fell approximately 7-8 feet and sustained extraordinary injuries. He was transported to Danbury Hospital where he remained in a coma for several weeks.
Following the incident, the defendant put an additional railing on top of the existing railing, making it higher. The purpose was to prevent anyone else from falling over the deck railing.
This evidence was admitted on the issue of control only.
Common-law Negligence Count
The plaintiff argues that the single-count complaint alleges both common-law and statutory negligence, and that the court, having determined that the negligence per se would not be charged to the jury, properly charged only common-law negligence. The defendant relies principally on the case of Baldwin v. Jablecki, 52 Conn.App. 379 (1999). The situation presented here is precisely the situation that presented itself in Baldwin. There, the trial court had granted a directed verdict finding that the count in question sounded entirely in statutory negligence and that it could not reasonably be read to include a common-law claim of negligence. As was the case there, the dispositive issue for this court is whether a fair reading of the first count of the plaintiff's complaint "reasonably forecloses a common-law negligence claim." Id.
"The interpretation of pleadings is always a question of law for the court . . . In addition, the allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties . . . Jacques All Trades Corp. v. Brown, 33 Conn.App. 294, 302, 635 A.2d 839 (1993). It is axiomatic that the parties are bound by their pleadings . . . Geren v. Board of Education, 36 Conn.App. 282, 289, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995)." (Citation omitted; internal quotation marks omitted.) Kunst v. Vitale, 42 Conn.App. 528, 532, 680 A.2d 339 (1996). Although statutory negligence and common-law negligence may be pleaded in one count; Root v. Connecticut Co., 94 Conn. 227, 108 A.2d 506 (1919); we do not presume that they have been so pleaded.
Baldwin v. Zablecki, 52 Conn.App. 379, 381-82 (1999). The plaintiff's allegations of negligence are set forth in Paragraph 4:
4. This incident, and the personal injuries and losses sustained and suffered by the plaintiff, James Cronin, was caused by the negligence and carelessness of the defendant, Griff's Olde Mug-N-Munch, LLC, its officers, agents, servants and/or employees, in one or more of the following ways:
a. in that they maintained the premises in a dangerous and/or defective condition, in that the height of the metal railing on the deck was less than 42 inches above the surface of the deck, in violation of 1012.2 of the 2005 State of Connecticut Building Code; and/or
b. in that they failed to provide the plaintiff and others lawfully upon the premises with a reasonably safe premises; and/or
c. in that they failed to warn the plaintiff and others who were lawfully upon the premises, verbally or otherwise, about the dangerous and/or defective condition of the deck railing, which constituted a falling hazard; and/or
d. in that they failed to timely remedy the dangerous and/or defective condition of the deck railing; and/or
e. in that they failed to take proper and adequate measures to protect the plaintiff, and others lawfully upon the premises, from the falling hazard presented by the dangerous and/or defective condition of the deck railing; and/or
f. in that they created the aforementioned dangerous and/or defective condition by failing to install a deck railing of sufficient height; and/or
g. in that they failed to cordon off the deck, although they knew, or in the exercise of reasonable care should have known that use of the deck with the railing of insufficient height constituted a falling hazard to the plaintiff and others lawfully upon the premises; and/or
h. in that they permitted the plaintiff, and other patrons lawfully on the premises to stand on the metal deck, when they knew or should have known, that the deck railing was not of sufficient height to prevent patrons from falling over the railing; and/or
i. In that they knew, or in the exercise of reasonable care and inspection should have known, of the aforesaid dangerous and/or defective condition and should have taken measures to remedy and correct the same, but this they failed to do; and/or
j. in that they allowed or permitted the aforesaid dangerous and/or defective condition to exist for an unreasonable period of time, yet took no measures to remedy or correct the same.
The defendant argues that these allegations are indistinguishable from the allegations in Baldwin. There the plaintiff relied upon paragraph four in the complaint which alleged that the plaintiff "slipped on the dangerous and defective exterior stairs." The plaintiff also relied upon subsection b of paragraph five which alleged that the defendants should have known of and remedied the "violation/conditions" but did not. Baldwin v. Zablecki, supra., 52 Conn.App. at 382. Without providing the language in question, the Appellate Court stated:
A fair reading of the complaint, however, cannot ignore subsection a of paragraph five, which specifies the defects alluded to in paragraph four and provides the antecedents to "these violation/conditions." The defects and negligence alleged in count two are defined in terms of the building code. Indeed, the building code violations are the centerpiece of count two.
Id. Not knowing the specific language alluded to, it cannot be said that the case is indistinguishable from the instant matter. However it is instructive.
The complaint in this case, at paragraph 4a, clearly alleges a building code violation to the extent that the railing did not meet the 42-inch height requirement of the 2005 Building Code. Thereafter, the plaintiff alludes back to the code violation in subparagraphs c, d, e, and f. The remainder of the allegations however are not dependent upon the code violation allegation. The complaint refers to the deck railing being of insufficient height, without reference to the Code or its requirements; the complaint alleges generally that the premises were not "reasonably safe"; the complaint alleges that the railing, being of insufficient height, constituted a falling hazard. These are precisely the common-law allegations argued and charged to the jury.
A fair reading of the complaint does not reasonably preclude a common-law cause of action. Indeed, both statutory and common-law negligence claims are present in count one of the plaintiff's complaint.
Sufficiency of the Evidence Claims
The parameters under which a court determines whether to direct a verdict or to set aside a verdict overlap considerably. Indeed, "[a] directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party." Fisher v. Big Y Foods, 298 Conn. 414, 440, (2010), citing, Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163 (2007).
Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court's decision [to deny the defendant's motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . Lin v. National Railroad Passenger Corp., 277 Conn. 1, 6, 889 A.2d 798 (2006) ("[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding" [internal quotation marks omitted]).
Id., 298 Conn. at 439-40.
Similarly, a trial court possesses inherent power to set aside a jury verdict which, in the court's opinion, is against the law or the evidence. O'Brien v. Seyer, 183 Conn. 199, 208 (1981). The court should neither set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably have reached its conclusion, nor refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as to establish that some mistake was made by the jury in the application of the law, or as to justify the suspicion that the jury was influenced by "prejudice, corruption or partiality." Palomba v. Gray, 208 Conn. 21, 23 (1988), quoting, Burr v. Harty, 75 Conn. 127, 129 (1902). The decision to set aside a verdict is one of broad legal discretion. Id.
Such discretion is not without limit however. Litigants have a constitutional right to have issues of fact determined by a jury. Mather v. Griffin Hospital, 207 Conn. 125, 138 (1988); Jacobs v. Goodspeed, 180 Conn. 415, 417 (1980).
The right to a jury trial is fundamental in our judicial system, and this court has said that the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court.
Camp v. Booth, 160 Conn. 10, 13 (1970). Since, in setting aside the verdict, the trial court deprives the prevailing party of this constitutional right, the court must examine the evidence. Palomba v. Gray, supra, at 25. In so doing, this court must do just what every juror ought to do in arriving at a verdict. Wichers v. Hatch, 252 Conn. 174, 187 (2000), citing, Birgel v. Heintz, 163 Conn. 23, 27-28 (1972). It must use all available experience, knowledge of human nature, knowledge of human events, past and present, knowledge of the motives which influence and control human action, and it must test the evidence in the case according to such knowledge. Id.
Upon examination of the evidence, "the verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice." See Hunte v. Amica Insurance Co., 68 Conn.App. 534, 541 (2002), citing, Shea v. Paczowski, 11 Conn App. 232, 233-34 (1987). "The evidence offered at trial must be given the most favorable construction to which it is reasonably entitled in support of the verdict . . . Only under the most compelling circumstances may the court set aside a jury verdict." Id.
"Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even if the opinion of the trial court is that a different result should have been reached. Jacobs v. Goodspeed, supra., CT Page 16386 180 Conn. at 417, quoting, Horvath v. Tontini, 126 Conn. 462, 464 (1940). In sum, "if there is a reasonable basis in the evidence for the jury's verdict, . . . the trial court should let the jury work their will.' Id., at 419.
Finally, it is worth repeating what is well established: "It is the jury's right to consider evidence, draw logical deductions and make reasonable inferences from facts proven . . . It may accept or reject the testimony of any witness . . . and determine the weight to be given the evidence." Hunte v. Amica Insurance Co., supra, 68 Conn.App. at 541.
Discussion
The defendant seeks to set aside the verdict rendered and a directed verdict on the evidence on the basis that there was insufficient evidence of causation and control of the premises.
Control
The evidence as to the defendant's control included testimony by several witnesses regarding the uses to which the deck was put by the defendant; the testimony that the defendant instructed patrons to use the deck, provided ash trays and kept the deck clean. The evidence further included the defendant's subsequent alteration of the railing, making it higher. In the absence of a lease agreement which conclusively establishes whether a landlord or a tenant has exclusive control of the premises, the issue of control becomes a question of fact for the jury. LaFlamme v. Dallessio, 261 Conn. 247, 256-57 (2002). "Control" means the power or authority to manage, superintend, direct, oversee, restrict or regulate. Kirby v. Zlotnick, 160 Conn. 341, 344 (1971). The evidence of control outlined above is sufficient to preclude a directed verdict. Further, although on this issue, the evidence was conflicting, under the parameters set forth above, there is no basis upon which the jury's verdict should be set aside. The jury was free to accept or reject the testimony and evidence presented on either side of the issue.
Causation
The issue of causation is a much closer question.
"The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). "An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm . . . The finding of actual cause is thus a requisite for any finding of proximate cause." (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986).
Winn v. Posades, 281 Conn. 50, 57 (2007).
Here, the plaintiff was required to establish the causal connection between the defective condition (or the failure to warn thereof) and the plaintiff's injury. Specifically, the jury would have to conclude that the plaintiff would not have fallen off of the deck "but for" the insufficient height of the railing; and further that the insufficient height of the railing was a substantial factor in bringing about his fall.
The evidence was very conflicting as to the circumstances under which the plaintiff fell over the railing to the parking lot below. The plaintiff does not recall why he fell and no one who was present actually saw him fall. The evidence from which causation might be found was therefore largely circumstantial. The plaintiff relied upon the height of the railing juxtaposed against the height of the plaintiff; the confining nature of the deck, especially when two somewhat larger patrons (as was the case) are sharing the deck space; the evidence that someone brushed passed the plaintiff to answer a cell phone immediately prior to the fall; the evidence that a higher railing would have prevented even someone of the plaintiff's height from toppling over the side.
While not overwhelming by anyone's definition, this court cannot conclude that the evidence of causation was so lacking as to require a directed verdict for the defendant or that the jury's conclusion so shocks the court's sense of justice that the verdict must be set aside. The defendant's motion for directed verdict and motion to set aside the verdict are denied.