Opinion
No. CV99-0151693S
July 23, 2004
MEMORANDUM OF DECISION RE POSTJUDGMENT MOTIONS
The jury awarded a verdict of $850,000 to an elderly woman who fell in a cemetery while attending her friend's funeral. The plaintiff alleged and evidence established that the defendant's employees left a warped board in the vicinity of the grave site in such a manner so as to cause a dangerous and defective condition. The plaintiff's treating physician testified that she suffered a 25% permanent partial impairment of the right upper extremity as a direct result of the slip and fall. This injury had the effect of rendering the plaintiff disabled and unable to live alone because she had previously suffered an injury to her left arm which was useless. The defendants move to set aside the verdict and for remittitur.
Motion to Set Aside the Verdict
The defendant moves to set aside the verdict on the grounds that it was contrary to law in two critical respects: first, the court erred in instructing the jury that the plaintiff did not need to prove that the defendant had notice of the allegedly detective condition because the condition was one created by the defendant's employees; second, the court erred in denying the defendant's motion for mistrial where plaintiff's counsel incorrectly represented to the court and defense counsel that a key witness was unavailable to testify because he could not be served which resulted in the reading of parts of his deposition at trial.
The defendant argues that, because the defect complained of was that the board was "warped," the jury should have been instructed to consider when and how the board became warped and whether the defendant had notice of that warped condition and of the fact that the placement of the board, in the particular place that it was in the cemetery, created a defective condition. This argument is unpersuasive. The boards were placed on the cemetery grounds by the defendant for the sole purpose of protecting the grounds from heavy equipment used to dig graves. "It is well established that a plaintiff does not have to prove that a defendant had actual or constructive notice of a dangerous condition when the plaintiff claims that the defendant's employees created the condition." See Fuller v. First National Supermarkets, Inc., 38 Conn. App. 299, 300, 661 A.2d 110 (1995) (holding supermarket caused fall by leaving pricing stickers on floor); Holody v. First National Supermarkets, Inc., 18 Conn. App. 553, 554-55, 559 A.2d 723 (1989) (holding supermarket employees caused plaintiff's injury by stacking cartons in dangerous manner); Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 605, 419 A.2d 339 (1979) (holding construction company had actual notice of dangerous condition that its employees created). In these types of cases, the defendant is deemed to have actual notice of the dangerous condition that its employees created. Tuite v. Stop and Shop Companies, Inc., 45 Conn. App. 305, 308, 309 (1997). Whether the board was warped prior to its placement on the ground or whether it became warped as a result of the defendant's employees driving heavy equipment over it, the defendant created the condition. The verdict may not be set aside on this ground.
The defendant argues that the verdict should be set aside because the testimony of one of the witnesses came in based upon an inaccurate representation as to his availability. It is correct that both the court and defense counsel were and informed by plaintiff's counsel that Mr. DeMaio, a former employee of the defendant, was not served with a subpoena and could not be found. Based on that representation, the parties agreed that portions of deposition testimony of Mr. DeMaio would be introduced and read into evidence. Plaintiff's attorney learned later that evening that Mr. DeMaio was served. He phoned DeMaio and was told that he would not come into court because he had a new baby and did not want to jeopardize losing his job. Plaintiff's counsel advised Mr. DeMaio that he was needed in court the next morning. Although he was advised that he was under subpoena, DeMaio said that he would not come to court. Plaintiff's counsel did not release Mr. DeMaio from his subpoena. The next morning, he advised defendant's attorney that he had contacted DeMaio. Defendant's attorney does not recall having been given that information, but he does not dispute plaintiff's attorneys assertion. They then agreed on the portions of the deposition which would be read into evidence. Thereafter, the defendant claimed prejudice because he was denied the opportunity to cross-examine DeMaio who, counsel argues, should have been brought in as a live witness.
Section 13-31(4) of the Practice Book provides, in relevant part: "The deposition of a witness . . . whether or not a party, may be used by any party for any purpose if the judicial authority finds: . . . (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (B) that the parties have agreed that the deposition may be so used." This situation falls squarely within the circumstances set forth in the rule. Moreover, the deposition testimony of Mr. DeMaio did not materially differ from that of Mr. Nivolo, another employee of the defendant. The defendant has failed to show any prejudice resulting from the use of the deposition rather than live testimony. "`The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial and the whole proceedings are vitiated . . . The granting of such a motion rests largely in the discretion of the trial court . . . In the exercise of that discretion the court may properly consider whether diligence was exercised in the preparation of the case for trial, whether available means were seasonably used to obtain evidence, whether . . . the testimony of an absent witness was unavailable through no fault of the moving party, and finally whether his testimony, if secured on a continuance . . . would probably affect the result of the trial." (Internal citations omitted; internal quotation marks omitted.) Izzo v. Crowley, 157 Conn. 561, 565, 566 (1969). The facts in this case present no justification for a mistrial.
Motion for Remittitur
"Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury." (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 536, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999) . . . Furthermore, [t]he size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Internal quotation marks omitted.) Ham v. Greene, supra, 248 Conn. 536. Thus, "[i]n ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby." (Internal quotation marks omitted.) Wisenbach v. Downey, 45 Conn. App. 165, 184, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). "A conclusion that the jury exercised merely poor judgment is an insufficient basis for ordering a remittitur." Johnson v. Chaves, 78 Conn. App. 342, 346 (2003). In light of the evidence that the plaintiff was rendered disabled to the extent that she was unable to live alone and care for herself as a result of this accident, the court cannot say that the size of the verdict shocks the sense of justice so as to compel a conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Rather, the verdict falls within the necessarily uncertain limits of just damages.
For the above-stated reasons, the motions to set aside the verdict and for remittitur are denied.
GALLAGHER, J.