Opinion
AC 40216
05-21-2019
Gregg FISK v. TOWN OF REDDING et al.
A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff). Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellee (named defendant).
A. Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for the appellant (plaintiff).
Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellee (named defendant).
The listing of judges reflects their seniority status on this court as of the date of oral argument.
FLYNN, J. The plaintiff, Gregg Fisk, appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendant town of Redding. On appeal, the plaintiff claims that the court erred in (1) denying his motion to set aside the verdict and (2) excluding evidence of subsequent remedial measures. We agree with the plaintiff's first claim but disagree with the second.
The complaint also named as defendants M. Rondano, Inc., and BL Companies, Inc. The court, Radcliffe , J. , granted the motion for summary judgment of BL Companies, Inc., which was affirmed on appeal. See Fisk v. Redding , 164 Conn. App. 647, 138 A.3d 410 (2016). The plaintiff withdrew his complaint as to M. Rondano, Inc. We will refer in this opinion to the town of Redding as the defendant.
The record reveals the following facts. A retaining wall was constructed as part of the defendant's "Streetscape Project." The project was funded by federal and state grants, and the state Department of Transportation (department) supervised the construction. The department's design engineer supervisor approved the construction of a five foot retaining wall without a fence. During the construction phase of the project, field conditions existed that necessitated the height of the retaining wall to become taller than five feet, as the driveway below it sloped downward. A wooden barrier in the style of a Merritt Parkway guardrail was installed several feet in distance from the retaining wall with dense landscaping behind it.
There was evidence that the Bridge Design Manual, which applies to retaining walls, provided that a protective fence is required if a retaining wall is greater than five feet, and subsequently was changed, unbeknownst to the project supervisors, to require any retaining wall exceeding four feet to have a fence. There also was evidence that the wall, as built, complied with the Connecticut State Building Code.
The retaining wall was adjacent to the parking lot of the Lumberyard Pub. On the evening of August 26, 2011, at approximately 8:30 p.m., the plaintiff went to the Lumberyard Pub for dinner and drinks. The plaintiff left at approximately 2 a.m., after consuming approximately five beers. In order to reach Main Street by a shortcut, the plaintiff climbed over the guardrail and stepped off the retaining wall. While traversing the unfenced retaining wall, the plaintiff fell and injured his left leg and ankle in many places.
The plaintiff brought an action against the defendant sounding in absolute public nuisance and alleging that he was injured when he fell off an unfenced retaining wall that had a nearly six foot drop to Main Street below. The defendant filed an answer and special defenses, alleging, inter alia, assumption of the risk and recklessness. Following trial, the jury returned a verdict for the defendant, which the court, Kamp , J. , accepted and recorded. Thereafter, the plaintiff filed a motion to set aside the verdict, and the court issued a memorandum of decision denying the motion. This appeal followed. Additional facts will be set forth as necessary. I
The plaintiff pleaded, inter alia, in his operative complaint: "The said wall, which was within the highway limits of Main Street ... had a precipitous (approximately [six feet] straight down) drop at the border of the highway right-of-way with the driveway (some [six feet] below) serving [number] 2 Main Street .... Said precipitous drop had no protective fencing .... As such, the said construction was inherently dangerous and constituted an absolute nuisance .... Said wall was constructed upon public land and constituted a public nuisance." The plaintiff offered evidence that he suffered almost $ 250,000 in past medical bills and between $ 100,000 and $ 200,000 in future medical bills.
The plaintiff claims that the court erred when it denied his motion to set aside the verdict because the jury's answers to the special interrogatories in the verdict form were inconsistent. We agree.
The following additional facts are relevant to this claim. The court charged the jury, prior to deliberations, in part, as follows: "First, the plaintiff must prove that the retaining wall was inherently dangerous ... that it had a natural tendency to create danger and to inflict injury upon person or property. It is the condition itself which must have a natural tendency to create danger and inflict injury. You, as the trier of fact, must consider all of the circumstances involved in determining whether ... the condition in that particular location had a natural tendency to create danger and inflict injury. Second, the plaintiff must prove that the danger was a continuing one .... Third, the plaintiff must prove that the use of the land, in this case the retaining wall, was unreasonable or unlawful. In making a determination concerning the reasonableness of the use of the land, all the surrounding factors must be considered. Fourth, the plaintiff must prove that the condition interferes with a right common to the general public .... If you find that the plaintiff has proven the above elements of a public nuisance, next the plaintiff must prove that the nuisance was a proximate cause of the injuries suffered by [the plaintiff]." In explaining how to proceed with the verdict forms and jury interrogatories, the court stated: "[F]or example, you respond to question one. If you answer no, as the instructions indicate, you must return a verdict for the defendant, and you would fill out the defendant's verdict form and that would end your deliberations. If you answer number one yes, as the instructions indicate, then you go on to question two, and you answer that question. After question two, if you were to answer that question no, then you would return a verdict for the defendant using the defendant's verdict form. If you answer yes, you continue to number three. And you continue through the process until you've reached your verdict either using one or the other of the verdict forms. You necessarily also have to complete the jury interrogatories at least completely or to where you stop if you answer a question no." The court did not further explicate interrogatories six and seven, which asked the jury to render special verdicts as to whether the defendant had proved its special defenses of recklessness and assumption of the risk.
Following the final charge of the court to the jury, the court submitted seven interrogatories to the jury, with the first and third as follows: "1. Has Plaintiff proven to you, by a preponderance of the evidence, that the condition complained of, the subject retaining wall was inherently dangerous in that it had a natural tendency to inflict injury on person or property? ... 3. Has Plaintiff proven to you, by a preponderance of the evidence, that the Defendant's use of the land was unreasonable or unlawful?" During deliberations, the jury presented the following question to the court: "If we are not all in agreement on questions one and two but are on question three, are we able to rule in favor of the defendant?" (Emphasis omitted.) Thereafter, counsel discussed the issue with the court outside the presence of the jury, and the plaintiff's attorney stated: "If some of them are saying that the wall was ... inherently dangerous and the danger was continuing, then that means that it has to be unreasonable." The court did not agree and stated that the "law requires that you, on behalf of your client, prove all four elements, and if you can't prove each element then there's a defendant's verdict." The plaintiff's counsel explained, "we don't abandon our position," to which the court responded, "of course you don't because you're going to write about this on appeal." The plaintiff's counsel specifically took an exception to "the omission of the words ‘without a fence’ after ‘retaining wall’ " in the court's charge to the jury. He also had preserved the issue in the plaintiff's request to charge, dated July 25, 2016, which suggested that the court charged the jury that "[t]he plaintiff must prove that the retaining wall without a fence had a natural tendency to create danger and to inflict injury upon person or property." (Internal quotation marks omitted.)
The court submitted the following interrogatories to the jury:
"1. Has Plaintiff proven to you, by a preponderance of the evidence, that the condition complained of, the subject retaining wall, was inherently dangerous in that it had a natural tendency to inflict injury on person or property? ...
"[If your answer is ‘NO,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘YES,’ please proceed to questions # 2.]
"2. Has Plaintiff proven to you, by a preponderance of the evidence, that the danger created was a continuing one? ...
"[If your answer is ‘NO,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘YES,’ please proceed to questions # 3.]
"3. Has Plaintiff proven to you, by a preponderance of the evidence, that the Defendant's use of the land was unreasonable or unlawful? ...
"[If your answer is ‘NO,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘YES,’ please proceed to questions # 4.]
"4. Has Plaintiff proven to you, by a preponderance of the evidence, that the existence of the nuisance interfered with a right common to the general public? ...
"[If your answer is ‘NO,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘YES,’ please proceed to questions # 5.]
"5. Has Plaintiff proven to you, by a preponderance of the evidence, that the existence of the nuisance was a proximate cause of the plaintiff's injuries and damages? ...
"[If your answer is ‘NO,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘YES,’ please proceed to questions # 6.]
"6. Has the Defendant proven to you, by a preponderance of the evidence, that Plaintiff's own reckless misconduct was a proximate cause of his injuries? ...
"[If your answer is ‘YES,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘NO,’ please proceed to questions # 7.]
"7. Has the Defendant proven to you, by a preponderance of the evidence, its defense of assumption of the risk? ...
"[If your answer is ‘YES,’ you must return a verdict for the defendant by using the defendant's verdict form. If your answer is ‘NO,’ please proceed to the plaintiff's verdict form.]"
Following the colloquy with counsel, the court responded to the jury's question as follows: "Ladies and gentlemen, I instructed you on the law and you have my charge as a court exhibit. And the plaintiff has the burden of proof, as I indicated in my charge, to prove essentially four elements of an absolute public nuisance .... If the jury can unanimously ... agree that the plaintiff has not proven one of those four elements and you can agree upon that, and in this case if it's number three and you so indicate on your jury verdict interrogatories and you check that unanimously in the negative, then you ... can return a verdict in ... favor of the defendant. But you must all unanimously agree that [the plaintiff] has not proven one element of the cause of action."
Following deliberations, the jury responded in the affirmative to jury interrogatories one and two and in the negative to the third jury interrogatory. The plaintiff moved to set aside the defendant's verdict, arguing that the jury's responses to the first and third interrogatories, in which it found that the wall was an inherently dangerous condition but was not an unreasonable or unlawful use of the land, were inconsistent. The court denied the motion, reasoning that the "jury's responses to the interrogatories were not inconsistent because there was evidence that allowed the jury to determine that, although the wall was unreasonably dangerous, it was not an unreasonable use of the land."
"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 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 [its] 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 ... that, in the absence of clear abuse, we shall not disturb." (Internal quotation marks omitted.) Kumah v. Brown , 160 Conn. App. 798, 803, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d 953 (2015).
"When a claim is made that the jury's answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp. , 242 Conn. 255, 270, 280, 698 A.2d 838 (1997). The plaintiff pleaded that the nuisance was absolute. "[I]n order to prevail on a claim of nuisance, a plaintiff must prove that: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was [a] proximate cause of the [plaintiff's] injuries and damages .... [W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public ... and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted; internal quotation marks omitted.) State v. Tippetts-Abbett-McCarthy-Stratton , 204 Conn. 177, 183, 527 A.2d 688 (1987).
"Whether an interference is unreasonable in the public nuisance context depends ... on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] .... The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." (Internal quotation marks omitted.) Kumah v. Brown , supra, 160 Conn. App. at 805, 126 A.3d 598. "The test of unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards." (Internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 456, 736 A.2d 811 (1999), citing 4 Restatement, Torts § 826, comment (b) (1939). One of those factors is utility. "Reasonableness in the nuisance context weighs the utility of the interference with the public right against the degree or severity of the interference. See 4 Restatement (Second), Torts § 826, p. 119 (1979) (‘[a]n intentional invasion of another's interest in the use and enjoyment of land is unreasonable if ... the gravity of the harm outweighs the utility of the actor's conduct’); see also 58 Am. Jur. 2d 632–33, Nuisances § 79 (2012) (‘the court must balance the gravity of the harm to the plaintiff against the utility of the defendant's conduct both to the defendant and to the community’). Such considerations are germane to deciding whether an interference with public safety is significant." Kumah v. Brown , supra, at 806 n.6, 126 A.3d 598. In Kumah v. Brown , supra, 160 Conn. App. 798, 126 A.3d 598, the plaintiff driver collided with a fire truck that had been positioned diagonally across Interstate 95 in response to a tractor trailer that had rolled over and was leaking diesel fuel. Id., at 800–801, 126 A.3d 598. The plaintiff driver brought an action sounding in negligence and public nuisance. Id., at 801, 126 A.3d 598. The plaintiffs argued on appeal that "the court erred in failing to set aside the jury's verdict because the jury's finding that the defendant was negligent was inconsistent with its express finding that the defendant's use of the land was not unreasonable." Id., at 802, 126 A.3d 598. This court concluded that "[i]t does not follow that simply because the jury found, as to one or more of the alleged acts or omissions, that the defendant had breached its duty to act as an ordinarily prudent person, it then necessarily had to find that the defendant's use of the land was unreasonable in the circumstances." Id., at 804, 126 A.3d 598. This court further concluded: "The jury could have found, for example, that a reasonably prudent town would have added more traffic cones or placed them differently, but that it was not unreasonable over-all, given the emergency, for the town to interfere with the public's access to the highway generally by placing the fire truck in front of the disabled tractor trailer and generally guarding the scene. The interrogatories were not necessarily inconsistent; therefore, the court did not abuse its discretion in denying the plaintiffs' motion to set aside the verdict." (Footnote omitted.) Id., at 806–807, 126 A.3d 598.
The focus in Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 449, 736 A.2d 811 (1999), was the utility of what the alleged creators of a private nuisance had made by their conduct rather than any contributory negligence on the part of the plaintiffs. The present case involves a claim of absolute nuisance to which contributory negligence is not a defense. See Warren v. Bridgeport , 129 Conn. 355, 360, 28 A.2d 1 (1942).
We are presented with the question of whether the jury's response to the first interrogatory, that the condition was inherently dangerous, is fatally inconsistent with its response to the third interrogatory, that the defendant's use of the land was not unreasonable. In his complaint, the plaintiff alleged that the defendant constructed a retaining wall that had a precipitous drop of approximately six feet and was not fenced. The plaintiff claims that the wall was inherently dangerous, constituted a public nuisance, and that he injured himself when he fell off the retaining wall. The issue in this case, as it was tried and argued below, was not whether the defendant could build a wall, but whether it could erect an unfenced wall, without thereby creating a public nuisance. In analogous settings, such as highway defect or premises liability cases, where a particular defect must be proved, what must be established is not a condition that might give rise to the defect, but the existence of the very defect that caused the injury, such as a pothole in a highway or a broken stair on someone's premises. See, e.g., DiPietro v. Farmington Sports Arena, LLC , 306 Conn. 107, 49 A.3d 951 (2012). In the present case, the condition which the plaintiff claims to have constituted a nuisance was the retaining wall without a fence .
The court instructed the jury to determine whether the condition in the particular location had a natural tendency to create danger and inflict injury.
The court instructed the jury on the "reasonable use" element of public nuisance that it was to consider "all the surrounding factors." Although there was evidence of landscaping and a Merritt Parkway style barrier several feet from the approximately five foot tall wall, the jury nonetheless found the wall to be inherently dangerous. Evidence that the plaintiff was intoxicated, wore flip-flops, walked over the Merritt Parkway barrier and jumped off the wall, does not pertain to the question in the third interrogatory as to whether the defendant's use of the land was reasonable. "[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter." (Internal quotation marks omitted.) Quinnett v. Newman , 213 Conn. 343, 349, 568 A.2d 786 (1990), overruled on other grounds by Craig v. Driscoll , 262 Conn. 312, 813 A.2d 1003 (2003). That evidence might well pertain to the defendant's special defenses of recklessness and assumption of the risk, but the jury did not reach those issues. The issue of utility comes into play logically, not about whether the wall itself had some use to hold back the earth, but whether there was any useful public purpose to erecting the wall without a fence atop it, which is the very defect that the plaintiff, in his complaint, supporting evidence, and argument to the jury, claims to have been the nuisance that proximately caused his injuries. In this case, as a matter of law, the jury could not have determined that the retaining wall without a fence was both inherently dangerous and not an unreasonable use of the land. A wall with or without a fence has the same capacity to hold back earth. The condition at issue is not the wall itself or the Streetscape Project, but the wall without a fence atop it. The inherently dangerous condition of the wall without a fence has no utility to stabilize soil. In Kumah , a jury reasonably could have found that the fire truck placed diagonally across an interstate was not an unreasonable use of the land given the utility of the fire truck in the emergency situation. See Kumah v. Brown , supra, 160 Conn. App. at 806–807, 126 A.3d 598. In the present case, there is no scenario under which the jury reasonably could have determined, after concluding that the retaining wall without a fence was inherently dangerous, that the fact that the retaining wall lacked a fence served any utility to either the defendant or the community, or that a weighing of all relevant circumstances could make the use of the land for an unfenced wall that is inherently dangerous and lacks any utility, reasonable. Under the circumstances of this case, the jury's answers to interrogatories one and three are inconsistent. In Bilodeau v. Bristol , 38 Conn. App. 447, 455, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995), this court noted that in attempting to harmonize the jury's inconsistent answers to interrogatories, a court may, as dictated by caution, return the jury to consider its verdict in light of the obvious inconsistency. See also Rendahl v. Peluso , 173 Conn. App. 66, 95, 162 A.3d 1 (2017) ("[a] trial court may decline to accept a verdict and return the jury to continue its deliberations when the verdict form or accompanying interrogatories, if any ... are legally inconsistent"). The trial court did not do so in this instance. Because the jury's answers are inconsistent and cannot be harmonized, we conclude that the court abused its discretion in denying the plaintiff's motion to set aside the verdict. "A verdict that is inconsistent or ambiguous should be set aside." Kregos v. Stone , 88 Conn. App. 459, 470, 872 A.2d 901, cert. denied, 275 Conn. 901, 882 A.2d 672 (2005).
II
The plaintiff next claims that the court erred in excluding evidence that following the plaintiff's accident, the defendant installed a fence. The plaintiff argues that evidence of the remedial repair is admissible because the defendant did not voluntarily install the fence but, rather, did so at the direction of the department. We disagree. "The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion .... We will make every reasonable presumption in favor of upholding the trial court's ruling ...." (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC , 289 Conn. 465, 489, 958 A.2d 1195 (2008).
Because of our conclusion with respect to the first issue, it is appropriate for us to give guidance on issues that are likely to recur upon retrial.
Section 4-7 (a) of the Connecticut Code of Evidence provides: "[E]vidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures." Section 4-7, "which is an exception to the general rule of admissibility of relevant evidence ... reflects the settled rule in this [s]tate that evidence of subsequent repairs is inadmissible to prove negligence or [as] an admission of negligence at the time of the accident .... [S]uch evidence is likely to be of relatively minor probative value .... A broad exclusionary rule prohibiting the use of such evidence to prove negligence [or culpable conduct] therefore fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence, even though it requires the plaintiff to make a case without the use of evidence of the subsequent repairs .... [E]vidence of subsequent remedial measures may be introduced when the party seeking to introduce the evidence can demonstrate that it is not being used as evidence of negligence but is instead offered to prove another material issue." (Citations omitted; footnote omitted; internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc. , 308 Conn. 1, 13–15, 60 A.3d 222 (2013).
The plaintiff stated in his brief that the evidence of the subsequent fence was relevant to the jury's determination of inherent danger and proximate cause. Section 4-7 of the Connecticut Code of Evidence, and the reasons behind the rule, make clear that voluntariness is not a factor, and that evidence of remedial measures is inadmissible to prove the defendant's liability for nuisance. Accordingly, we conclude that the court did not abuse its discretion in excluding evidence of the subsequent fence.
The judgment is reversed and the case is remanded for a new trial.
In this opinion SHELDON, J., concurred.
(One judge concurring in part and dissenting in part)
ELGO, J., concurring in part and dissenting in part.
In ruling on a motion to set aside a verdict, the trial court is endowed with a broad legal discretion that shall not be disturbed absent clear abuse. Rawls v. Progressive Northern Ins. Co. , 310 Conn. 768, 776, 83 A.3d 576 (2014) ; see also Ulbrich v. Groth , 310 Conn. 375, 414, 78 A.3d 76 (2013) (every reasonable presumption must be given in favor of correctness of court's exercise of discretion to deny motion to set aside). In the present case, the plaintiff, Gregg Fisk, claims that the court abused that discretion due to the presence of allegedly inconsistent responses to certain interrogatories by the jury. Such a claim requires this court to attempt to harmonize the jury's answers while giving the evidence the most favorable construction that reasonably supports its verdict. Norrie v. Heil Co. , 203 Conn. 594, 606, 525 A.2d 1332 (1987). Guided by that standard, I would conclude that the trial court did not abuse its discretion in this case because the jury's responses to the interrogatories in question can be harmonized in accordance with established nuisance jurisprudence. I therefore respectfully dissent from the majority's conclusion to the contrary.
The standard of review governing the plaintiff's claim is well settled. In Norrie v. Heil Co. , supra, 203 Conn. at 605–606, 525 A.2d 1332, our Supreme Court articulated the standard of review applicable to a claim that the jury's responses to interrogatories are internally inconsistent with each other. It stated: "Our [review] is extremely limited. The trial court's refusal to set aside the verdict is entitled to great weight in our assessment of the claim that its decision is erroneous .... The evidence and record must be given the most favorable construction in support of the verdict which is reasonable .... It is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury's answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers." (Citations omitted.) Id., at 606, 525 A.2d 1332 ; accord Earlington v. Anastasi , 293 Conn. 194, 203, 976 A.2d 689 (2009).
In this public nuisance action, the jury was presented with seven interrogatories. See footnote 4 of the majority opinion. Relevant to this appeal are its responses to the first and third interrogatories. The first interrogatory asked whether the plaintiff had proven "that the condition complained of, the subject retaining wall, was inherently dangerous in that it had a natural tendency to inflict injury on person or property"; the jury answered "Yes." The third interrogatory inquired whether the plaintiff had proven "that the Defendant's use of the land was unreasonable or unlawful"; the jury answered "No." In accordance with the court's instructions, the jury, after answering that interrogatory in the negative, proceeded to return a verdict in favor of the defendant town of Redding. On appeal, the plaintiff maintains that those responses are internally inconsistent with each other and "plainly contradictory." I do not agree.
In this appeal, the plaintiff has raised no claim with respect to the propriety of the court's instructions to the jury.
The complaint named other defendants that are not involved in this appeal. References in this opinion to the defendant are to the town of Redding.
The first interrogatory required the jury to determine whether the retaining wall itself was inherently dangerous. It is well established that an interrogatory presented to a jury must be read "in conjunction" with the instruction provided by the court. Norrie v. Heil Co. , supra, 203 Conn. at 605, 525 A.2d 1332. In its charge to the jury, the court instructed that "[i]t is the condition itself which must have a natural tendency to create danger and inflict injury." (Emphasis added.) Because under our law the jury is presumed to follow the court's instructions absent an indication to the contrary; Wiseman v. Armstrong , 295 Conn. 94, 113, 989 A.2d 1027 (2010) ; we must presume that the jury in this case considered whether the retaining wall itself was inherently dangerous. The jury answered the query in the affirmative.
After making that initial finding, the jury also was required to determine whether the use of the land in question was unreasonable, insofar as it interfered with a right common to the general public. See State v. Tippetts-Abbett-McCarthy-Stratton , 204 Conn. 177, 183, 527 A.2d 688 (1987) ; 4 Restatement (Second), Torts § 821B (1) (1979). Unlike the first interrogatory, which required the jury to determine whether the retaining wall itself was inherently dangerous, the inquiry under the third interrogatory required the jury to consider whether the use of the land on which the retaining wall was erected was unreasonable in light of the surrounding circumstances. As this court has observed, in the public nuisance context, all of the surrounding factors must be considered to ascertain whether the use of land in a given instance constitutes an unreasonable interference with a public use. See Kumah v. Brown , 160 Conn. App. 798, 805–806 n.5 and n.6, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d 953 (2015).
Although both the third interrogatory and the court's charge to the jury also referenced unlawfulness, there was no evidence presented at trial, nor any claim by the plaintiff, that the use of the land was unlawful. I therefore confine my review to the issue of reasonableness. See Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999) ("the determinative portion of this element [of a nuisance action] was whether the use ... was reasonable").
For that reason, I reject the plaintiff's suggestion that a finding that the land in question was inherently dangerous precludes a finding by the jury that the defendant's use of the land in question was reasonable. The relevant inquiries under the first and third interrogatories are distinct and have been well established under our law for the better part of a century. See, e.g., Beckwith v. Stratford , 129 Conn. 506, 508, 29 A.2d 775 (1942) ("[t]o constitute a nuisance in the use of land, it must appear not only that a certain condition by its very nature is likely to cause injury but also that the use is unreasonable or unlawful").
That precept is well ingrained in our law. As our Supreme Court noted more than half a century ago, reasonableness must be determined in light of the particular "circumstances of the case." Wetstone v. Cantor , 144 Conn. 77, 80, 127 A.2d 70 (1956) ; see also Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 510, 218 A.2d 383 (1966) ("[a] fair test of whether a proposed use constitutes a nuisance is the reasonableness of the use of the property in the particular locality under the circumstances of the case" [internal quotation marks omitted] ). The precedent of this state's highest court thus instructs that "[u]nreasonableness cannot be determined in the abstract, but, rather, must be judged under the circumstances of the particular case." Pestey v. Cushman , 259 Conn. 345, 352–53, 788 A.2d 496 (2002) ; see also Walsh v. Stonington Water Pollution Control Authority , 250 Conn. 443, 457, 736 A.2d 811 (1999) (concluding that trial court properly instructed jury that it "must consider many factors in determining the reasonableness of use"); Nair v. Thaw , 156 Conn. 445, 452, 242 A.2d 757 (1968) (citing 4 Restatement, Torts § 826, comment [b] [1939], for proposition that "[d]etermining unreasonableness [in the nuisance context] is essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards" [internal quotation marks omitted] ); Cyr v. Brookfield , 153 Conn. 261, 266, 216 A.2d 198 (1965) (reasonableness measured "under all the circumstances"). Almost eighty years ago, our Supreme Court explained that "[w]hether ... a particular condition upon property constitutes a [public] nuisance does not depend merely upon the inherent nature of the condition , but involves also a consideration of all relevant facts, such as its location, its adaptation to the beneficial operation of the property, the right of members of the public to go upon the land adjacent to it, and the use to which they would naturally put that land." (Emphasis added.) Balaas v. Hartford , 126 Conn. 510, 514, 12 A.2d 765 (1940). For that reason, the trial court in the present case properly instructed the jury with respect to the third interrogatory that "[i]n making a determination concerning the reasonableness of the use of the land, all the surrounding factors must be considered." See Kumah v. Brown , supra, 160 Conn. App. at 806 n.6, 126 A.3d 598 ("[t]he jury ... was properly instructed to consider all of the [surrounding] circumstances").
In Peterson v. Oxford , 189 Conn. 740, 745–46, 459 A.2d 100 (1983), our Supreme Court similarly described the application of a reasonableness standard as "a weighing analysis" that entails consideration of "all the relevant circumstances" and factors. See also Williams Ford, Inc. v. Hartford Courant Co. , 232 Conn. 559, 580, 657 A.2d 212 (1995) ("[w]e have consistently held that reasonableness is a question of fact for the trier to determine based on all of the circumstances").
Accordingly, in considering the third interrogatory regarding the reasonableness of the defendant's use of the land, the jury was not confined to a review of the retaining wall in isolation. Rather, the jury was required to "take into account a multiplicity" of surrounding factors; Walsh v. Stonington Water Pollution Control Authority , supra, 250 Conn. at 457, 736 A.2d 811 ; including "both the general activity [on the land] and what is done about its consequences." (Internal quotation marks omitted.) Id., at 459, 736 A.2d 811. In the present case, the jury had before it evidence of the necessity and, hence, utility, of the retaining wall, as it was constructed to replace an existing retaining wall and meant to preserve the public's right to traverse Main Street below, particularly pedestrians, bicyclists, and joggers. The jury also heard testimony that the retaining wall, as built, fully complied with the Connecticut State Building Code, which governs the construction of retaining walls in this state. The plaintiff does not suggest otherwise in this appeal.
The jury also was presented with an abundance of documentary and testimonial evidence, including several photographs of the land in question, indicating that both a guardrail barrier and a dense landscaping buffer separated the retaining wall from the adjacent parking lot, from which it is undisputed that the plaintiff entered the land. In this regard, I reiterate that the applicable standard of review requires this court to view that evidence in the light most favorable to the verdict delivered by the jury and to make all reasonable inferences consistent therewith. Norrie v. Heil Co ., supra, 203 Conn. at 606, 525 A.2d 1332. James Fielding, who served as the project manager and oversaw construction of the retaining wall, testified at trial that installing a fence on the retaining wall "was never discussed" because the defendant "had the guardrail in place serving to protect vehicles and pedestrians." Beyond that, the plaintiff's own expert witness, forensic engineer Richard Ziegler, conceded at trial that the guardrail barrier was an effective means of keeping people out of the area between the retaining wall and the parking lot. The jury also heard uncontroverted testimony that, between May and August, 2011, the plaintiff frequently patronized the Lumberyard Pub, whose parking lot abuts the land in question, as often as twice a week. The plaintiff testified that, on every occasion prior to the events of August 27, 2011, he walked down the paved parking lot to exit the Lumberyard Pub. The plaintiff's own testimony supports the conclusion that the defendant's use of the land was objectively reasonable because the plaintiff's conduct on every other occasion he frequented the Lumberyard Pub illustrates that he had recognized the defendant's use of the guardrail barrier and the landscaping buffer as signals to the public that they should not traverse the land in question. Under Connecticut law, a nuisance claim requires consideration of not only the defendant's use of the land in erecting the retaining wall, but also "what [was] done about its consequences." (Internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority , supra, 250 Conn. at 459, 736 A.2d 811. On the evidence presented at trial, the jury reasonably could determine that the defendant's installation of both the guardrail barrier and the landscaping buffer to separate the retaining wall from pedestrian access in the parking lot were protective measures aimed at mitigating any adverse consequences of an otherwise dangerous retaining wall.
At trial, the following colloquy occurred:
"[The Defendant's Counsel]: The [existing] guardrail, it's made of heavy block wood; is that right?
"[Ziegler]: Yes.
"[The Defendant's Counsel]: And a structure like this one [that] we're looking at, certainly sends the message to people over here that they are not supposed to go over in that direction, doesn't it?
"[Ziegler]: Correct.
"[The Defendant's Counsel]: And ... correct me if I'm wrong, but the guardrail is an effective means of keeping people from the parking lot over here from going into the area where the high parts of the wall are, correct?
"[Ziegler]: Yes.
"[The Defendant's Counsel]: That was your word, an effective means of keeping people from going in; correct?
"[Ziegler]: Yes."
The uncontroverted evidence before the jury established that, at all relevant times in 2011, the plaintiff lived one-half mile away from the land in question and knew that there was a drop in elevation from the top of the retaining wall. The evidence also indicates that the plaintiff was very familiar with the land in question. He previously had worked in that area of the town for seven years, at which time a timber retaining wall was present on that land. There is no indication in the record that the plaintiff ever attempted to traverse either the timber retaining wall or the replacement retaining wall at any time during those seven years or in 2011, apart from the early morning hours of August 27, 2011, when he was in an admittedly intoxicated condition. As the plaintiff acknowledged at trial, he "never once went over [the] retaining wall prior to that night ...."
Moreover, the plaintiff offered no evidence that anyone ever traversed the retaining wall prior to the events of August 27, 2011. In this regard, I believe the present case is strikingly similar to Balaas v. Hartford , supra, 126 Conn. at 514, 12 A.2d 765, in which "[t]here [was] no finding that anyone had ever [previously used the land in question as the plaintiff did], that the place where the accident occurred had ever been used [in that manner], or that there was any reason for the defendant to anticipate such use by anyone."
I fully agree with the majority that such evidence is not relevant to the question of the plaintiff's contributory negligence in this public nuisance case. Rather, I highlight such evidence because I believe it further substantiates a finding by the jury that the defendant took reasonable measures to alert pedestrians of ordinary prudence that the land in question was not to be traversed.
In his operative complaint, the plaintiff alleged that the defendant had erected the retaining wall without any "protective fencing." In its answer, the defendant denied the truth of that allegation. As such, the factual question of whether any protective fencing existed was in dispute and one for the jury, as finder of fact, to ultimately decide. Because the jury was presented with ample documentary and testimonial evidence that both a guardrail barrier and a landscaping buffer separated the parking lot from the retaining wall, as well as testimony from the defendant's project manager that the guardrail barrier was installed "to protect vehicles and pedestrians," I believe the jury reasonably could conclude that protective fencing was, in fact, present on the land, insofar as fencing is defined as "a barrier intended to prevent ... intrusion or to mark a boundary" and "something resembling a fence in appearance or function." See Webster's Third New International Dictionary (2002) p. 837. Such a finding is consistent with the verdict rendered by the jury in favor of the defendant.
At oral argument before this court, Judge Sheldon noted two distinct ways that a property owner may deal with an inherently dangerous condition, stating: "One way is to get rid of the problem. That is, to actually fix it. The other way is to give adequate warning of it or to fence it off so that people don't go there." Both at trial and in this appeal, the defendant has maintained that the installation of the guardrail barrier accomplished the latter.
Such surrounding circumstances are highly relevant to the jury's consideration of the reasonableness of the defendant's use of the land in question. For example, in Kumah v. Brown , supra, 160 Conn. App. at 800, 802, 126 A.3d 598, at issue was the reasonableness of a fire truck positioned diagonally across the middle and right travel lanes of a highway, which, the plaintiff alleged, created a public nuisance. In affirming the trial court's refusal to set aside the jury's verdict, this court addressed the reasonableness element of a public nuisance claim. In so doing, this court focused not only on the inherently dangerous condition, but also on the surrounding circumstances. The court emphasized that firefighters had activated "flashing lights" and had "placed cones as warnings to approaching traffic." Id., at 800–801, 126 A.3d 598 ; see also id., at 806, 126 A.3d 598 n.6 ("[t]he jury may well have decided ... that the social utility of guarding the scene with, inter alia, flashing lights was great"). In light of those surrounding circumstances, this court concluded that the jury could have found that the use of the property "was not unreasonable overall ...." Id., at 806, 126 A.3d 598.
In the present case, I likewise would conclude that the jury had an adequate evidentiary basis to conclude that the defendant's use of the land did not constitute an unreasonable interference with a right common to the general public when viewed in light of the surrounding circumstances. The retaining wall, while inherently dangerous, was constructed in full compliance with the Connecticut State Building Code. The defendant installed both a guardrail barrier and a landscaping buffer to shield the retaining wall from the adjacent parking lot. The jury reasonably could infer, from the plaintiff's own testimony that he did not attempt to traverse the land in question during any of his numerous visits to the Lumberyard Pub prior to the night in question, that the guardrail and landscaping buffer provided an effective barrier from pedestrian traffic. Moreover, the plaintiff's own expert testified at trial that the guardrail, in particular, provided adequate notice and was an effective means of keeping people out of the area between the retaining wall and the parking lot. See footnote 6 of this opinion. The admitted efficacy of that barrier provides a basis on which the jury could conclude that, notwithstanding the inherent dangerousness of the retaining wall itself, the defendant's use of the land was not unreasonable in light of the surrounding circumstances.
The plaintiff has not specified, in either his appellate briefs or at oral argument before this court, precisely what "right common to the general public" is implicated here. Presumably, his claim is predicated on a right to freely traverse an area of land that historically—and at all times relevant to this case—has contained a retaining wall.
I also would conclude that the plaintiff's reliance on Bilodeau v. Bristol , 38 Conn. App. 447, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995), is misplaced. Unlike the present case, Bilodeau did not involve internally inconsistent interrogatory answers by the jury but, rather, concerned "an apparent inconsistency between the jury's answer to one of the interrogatories submitted to it and the plaintiff's verdict." Id., at 450, 661 A.2d 1049. In that case, the jury could only return a plaintiff's verdict if it had "answered all six interrogatories in the affirmative ...." Id., at 455, 661 A.2d 1049. After answering one of the six interrogatories in the negative, the jury nonetheless delivered a verdict in favor of the plaintiff, and the court thereafter directed a verdict in favor of the defendant. Id., at 452–54, 661 A.2d 1049.
On appeal, this court expressly stated that its ruling was predicated on the particular "circumstances of this case ...." Id., at 456, 661 A.2d 1049. This court emphasized that the trial court "did not expressly charge the jury that it must answer all of the interrogatories in the affirmative in order to find for the plaintiff. This failure further evidences the jury's unawareness or confusion regarding the relationship between the interrogatories and the verdict." Id., at 453, 661 A.2d 1049 n.5. The trial court's failure to so instruct the jury, coupled with the remedial mandate of General Statutes § 52-223, led this court to observe that "considering the fact that the trial court had not specifically instructed the jury that it needed to answer all of the interrogatories in the affirmative in order to return a plaintiff's verdict, caution dictated that the jury be so instructed and given an opportunity to make its verdict clear" before the court directed a verdict in favor of the defendant. Id., at 455, 661 A.2d 1049.
In the present case, by contrast, there is no claim that the jury's responses to the interrogatories are inconsistent with the verdict that it returned in favor of the defendant. Furthermore, the plaintiff has never claimed any impropriety in the instructions furnished by the trial court and has not briefed such a claim in this appeal. Bilodeau , therefore, has little relevance to the present case.
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In reviewing a claim of internally inconsistent interrogatory answers, we are obligated to harmonize those answers to the extent practicable while giving the evidence the most favorable construction that supports the jury's ultimate verdict. See Norrie v. Heil Co ., supra, 203 Conn. at 606, 525 A.2d 1332. We are not permitted to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. Id. In its memorandum of decision denying the plaintiff's motion to set aside the verdict, the court specifically found that "there was sufficient evidence to permit the jury to make a factual determination regarding the reasonableness element and thereby render a verdict in favor of the defendant—the court finds that the jury's responses to [the] interrogatories are neither inconsistent nor contrary to the law." I believe that, having applied the appropriate legal standard given the evidence before the jury, the trial court did not abuse its discretion in denying the plaintiff's motion to set aside the verdict of the jury. I therefore respectfully dissent from part I of the majority opinion.