Opinion
FBTCV146044783
12-05-2016
Jack Fernandes v. Town of Monroe
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT
Michael P. Kamp, J.
The defendant, Town of Monroe, moves for the court to set aside the verdict of a jury trial--which was rendered in favor of the plaintiff, Jack Fernandes--and order a new trial. The defendant moves pursuant to Practice Book § 16-35.
The plaintiff filed this litigation by way of a complaint dated July 28, 2014, and proceeded to trial on an amended complaint dated September 16, 2014. The amended complaint alleges that on August 11, 2012, as the plaintiff was leaving the defendant's police department located at 7 Fan Hill Road, he was caused to trip and fall due to a defective sidewalk. The plaintiff's amended complaint contained three counts with alternative theories of recovery against the defendant. The first count was a claim for negligence brought pursuant to General Statutes § 52-557. The second count was brought pursuant to General Statutes § 13a-149. The third count sounded in nuisance and was brought pursuant to General Statutes § 52-557n.
On September 15, 2016, the defendant filed a motion to dismiss the first and third counts of the plaintiff's complaint. In its memorandum of law in support of the motion to dismiss, the defendant argued that the plaintiff's exclusive remedy against the defendant was a claim brought pursuant to General Statutes § 13a-149. On September 26, 2016, the defendant filed a Stipulation of Undisputed Facts. See entry #123. The stipulation contained thirteen separate statements of uncontested facts. By filing this stipulation, the defendant admitted all of the facts necessary for the plaintiff to prevail on his claim brought pursuant to § 13a-149, with the exception of the issue of whether the sidewalk and curb defect was the sole proximate cause of the plaintiff's claimed injuries and damages.
The defendant's stipulation was intended to satisfy the requirements necessary to maintain a claim under § 13a-149 as set out in the Appellate Court's decision of Pramuka v. Cromwell, 160 Conn.App. 863, 127 A.3d 320 (2015). Following the filing of the stipulation, the court granted the defendant's motion to dismiss the first count of the plaintiff's complaint. The third count was withdrawn by the plaintiff on the record. As a result the case proceeded to trial only on the second count, brought pursuant to § 13a-149.
After the jury was selected, evidence was presented in a single day on September 27, 2016. Multiple witnesses testified and numerous exhibits were offered into evidence on the issues of liability and damages. One of the witnesses called by the plaintiff was the defendant's Director of Public Works, Christopher Nowacki. In anticipation of Nowacki's testimony, the defendant sought to prevent the plaintiff's counsel from asking the witness what steps the defendant could have taken to repair the defective condition or to warn of its presence. The defendant argued that such an inquiry was not relevant in view of the defendant's filing of the stipulation of undisputed facts. The court permitted the plaintiff's counsel to ask Nowacki whether the defendant had taken any steps to warn of the defective condition. On examination of Nowacki, the plaintiff's counsel reviewed the defendant's stipulation of undisputed facts with the witness, including the defendant's failure to warn of the presence of the defect.
Following conclusion of the evidence, counsel made closing arguments to the jury on September 28, 2016. During its closing argument, the plaintiff's counsel remarked that the defendant could have taken measures to warn pedestrians of the defect, including placing a warning sign or a cone, or spray-painting the area. The defendant's counsel objected to these remarks.
Prior to the court's charge to the jury, the defendant requested and was granted a chambers conference regarding the remarks made by the plaintiff's counsel in its closing argument. The defendant argued that the comments made by the plaintiff, regarding the specific measures the defendant could have taken to warn of the defect, were prejudicial to the defendant and contrary to the court's prior rulings. The defendant requested a curative instruction to the jury--as opposed to a verbal admonition, out of concern that it would only further focus the jury's attention on the measures the defendant could have taken to warn of the defect. The court agreed to include the following instruction in its charge to the jury: " Counsel for the plaintiff in closing remarks made statements regarding steps that could be taken regarding duty to warn. You should disregard those statements." All counsel agreed to this curative instruction and no additional instruction was requested. Following the court's instruction to the jury, neither party took exception to the charge. Neither party requested jury interrogatories, and none were submitted to the jury.
This instruction was contained on page four of jury instructions under the heading " arguments and statements by lawyers." The entire jury charge was marked as court exhibit B and provided to the jury during their deliberations pursuant to Practice Book § 16-15.
Following deliberations, the jury returned a verdict for the plaintiff. The jury awarded total damages of $120,000: $9,296.98 in economic damages, and $110,704.12 in noneconomic damages.
On October 12, 2016, the defendant filed a motion to set aside the verdict and for a new trial. On October 26, 2016, the defendant filed a supplemental motion to set aside the verdict. On October 28, 2016, the plaintiff filed an objection to the defendant's motions to set aside the verdict. On October 31, 2016, the defendant filed a reply memorandum. The motions were heard on the court's short calendar on October 31, 2016, at which time the court reserved judgment.
The defendant argues that the verdict should be set aside and a new trial be ordered because the questions that the plaintiff's counsel directed to witness and the comments that the plaintiff's counsel made in closing argument were improper and prejudicial and denied the defendant a fair trial.
" 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). In addition, our case law does " not require a direct showing of partiality, prejudice, mistake or corruption, but rather stand[s] for the proposition that if the amount awarded 'shocks the sense of justice' as to what is reasonable, then the inferred conclusion is that the jury [was] misguided in reaching its decision." Zarrelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 327-28, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).
" When a verdict should be set aside because of improper remarks of counsel . . . the remedy is a new trial." Palkimas v. Lavine, 71 Conn.App. 537, 542, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002). In seeking a new trial on this ground, a party's burden of proof is twofold. Id., 546. First, it must demonstrate that the challenged remarks in fact were improper. Id. Then, the party must show that the improprieties during argument warrant a new trial. Id. The remedy of a new trial is appropriate in circumstances in which the improper comments of counsel caused " manifest injury to a litigant . . ." (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn.App. 300, 306, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001); see also Forrestt v. Koch, 122 Conn.App. 99, 107, 996 A.2d 1236 (2010).
" The phraseology to describe whether there has been an abuse of discretion in not setting aside a verdict and granting a new trial is somewhat different as between civil and criminal cases . . . In civil cases . . . the harmed party must show 'manifest injury' . . . or that the remarks were 'unreasonable' . . . or 'flagrantly prejudicial.' . . . In every case, both criminal and civil, involving improper argument, there are two questions. The first is whether the remarks were improper, and the second is whether, if the remarks were improper, a new trial is necessary." (Citations omitted.) Palkimas v. Lavine, supra, 71 Conn.App. 545-46; see also Sturgeon v. Sturgeon, 114 Conn.App. 682, 690, 971 A.2d 691 (2009).
In this case, the defendant made a strategic decision to file a stipulation of undisputed facts that admits all the necessary elements of a cause of action based upon General Statutes § 13a-149, with the exception of the issue of sole proximate cause. The stipulation included an admission that the defendant failed to remedy the defective condition and failed to warn of the condition. The plaintiff marked this stipulation as a full trial exhibit. Plaintiff exhibit 9. The plaintiff's counsel either read directly from the stipulation or referenced it in both its opening and closing statements. In addition, the plaintiff's counsel used the stipulation to cross examine the defendant's Public Works Director, Nowacki.
The defendant's argument focuses on comments made by the plaintiff's counsel in its closing remarks regarding the defendant's failure to warn. Specifically, in its closing, the plaintiffs' counsel read directly from the stipulation and, in particular, referenced the defendant's admission that it failed to warn of the defect. In commenting on those admissions, the plaintiff's counsel argued: " the Town had a reasonable opportunity to warn of its presence before the plaintiff passed over it, but the Town failed in its duty to do so. What does that mean? . . . It means that they could have put a cone on it. Could have put tape over it. Could have put a warning sign. Warning. This is unreasonably safe. Don't go there. Or. walk carefully because you know what, you got a big defect there. We're not going to fix it, so you ought be aware that it's there. Good can of spray paint. Nice, bright color." Following those comments, the defendant objected and the court directed the plaintiff's counsel to make no further comments on that issue.
During the chambers conference that followed closing arguments, the defendant renewed its objection to the plaintiff's argument regarding the duty to warn. The court agreed to include a curative instruction in its charge to the jury. No additional instructions were requested or given, and there were no exceptions taken to the charge, by neither the plaintiff nor the defendant.
The jury asked three questions during its deliberations. Two questions concerned a photograph. Plaintiff exhibit 4E. The questions concerned the presence of an orange color on the photograph as well as when the photograph was taken. The jury was instructed that there was no evidence regarding the orange color and that the jury should not guess or speculate regarding that color. The jury was also instructed that the photograph was taken a day or two following the plaintiff's trip and fall. The final jury question concerned when the subject area was repaired and the jury was instructed that this was not an issue for it to consider in this case.
The court must first consider whether the remarks made by the plaintiff were improper. " In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom." State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). " It is, thus, axiomatic that the advocate may also entreat the jury to draw reasonable inferences and conclusions from the evidence." Skrzypiec v. Noonan, 228 Conn. 1, 16, 633 A.2d 716 (1993).
The defendant admitted by stipulation that it failed to warn individuals such as the plaintiff of the existence of the defect. That admission, along with other admissions, required the jury to determine whether the defect was the sole proximate cause of the plaintiff's injuries. The defendant argued that the plaintiff should have seen and avoided the defect and that, if the plaintiff had been more attentive, the plaintiff could have prevented his trip and fall. The sole issue in dispute is the propriety of the plaintiff's limited comments about the steps the defendant could have taken to warn of the defect. The court finds that these comments were not improper. Moreover, even if deemed improper, the court does not find that the comments were flagrantly prejudicial, nor that they created a manifest injury to the defendant. Any prejudicial effects that those comments could have had were properly addressed by the court's inclusion of a curative instruction as part of its instructions to the jury. Such an instruction was requested by the defendant and agreed upon by both parties. No further or additional instructions were ever requested and no exception to the charge was taken by the plaintiff.
Lastly, we address the defendant's argument that the jury's question concerning the orange color in one of the photographs in evidence suggests that the jury was not exclusively focused on the issue of sole proximate cause. The court finds that this argument is misplaced. The jury could have asked that question to determine whether the plaintiff should have observed the defect, a determination that would impact the jury's outcome on the issue of sole proximate cause of the plaintiff's claimed injuries. In other words, the jury's question could easily be interpreted as demonstrating that the jury was focused on that issue.
CONCLUSION
Based on the foregoing, the defendant's motion to set aside the verdict and for a new trial is denied.