Opinion
No. CV 08 5003453
February 3, 2011
RULING RE MOTION TO SET ASIDE THE VERDICT (#274)
The plaintiffs, James Malaguit and Nona Malaguit, have moved this court to set aside the verdict rendered for the defendant, Ski Sundown. The plaintiffs argue that the verdict is contrary to the law and evidence presented. The defendant objects to the motion, arguing that there is no basis in law or in fact to set aside the verdict and "impede upon Ski Sundown's constitutional right to a trial by jury." The motion is denied.
FACTS
On February 17, 2006, plaintiff James Malaguit attempted to ski over a snow jump in a location known as a "terrain park" within Ski Sundown, a ski area in New Hartford, Connecticut. He fell as he went over the jump, landing in a manner that resulted in severe spinal injuries and left him a quadriplegic. James Malaguit was fifteen years of age at the time of the accident. The co-plaintiff, Nona Malaguit, is his mother. The plaintiffs filed their complaint in 2008.
The single count before the jury alleged that the defendant was negligent in the manner in which it constructed, maintained, and operated the ski jump where the injury occurred. The defendant, in addition to denying the allegations of negligence, raised two special defenses. First, the defendant invoked General Statutes § 29-212, an "assumption of the risk" statute that is applicable to ski areas. The second special defense alleged that James Malaguit was contributorily negligent.
This matter went to trial on September 28, 2010, and continued through October 15, 2010. The court charged the jury on October 19, 2010, and the jury returned its verdict for the defendant on that same day. The plaintiffs filed their motion to set aside the verdict on October 29, 2010. The defendant opposed the motion, and each party thereafter filed supplemental memoranda. The parties came before the court and argued their respective positions on December 23, 2010.
DISCUSSION
The plaintiffs raise four arguments in support of their motion. First, the plaintiffs allege that the jury charge regarding General Statutes § 29-212 ("the ski statute") was erroneous in that the statute should not have been charged at all. Alternatively, they argue that, assuming it was appropriate to give a charge on the ski statute, the definition of "hazards inherent in the sport of skiing" was erroneous. The plaintiffs' second basis for setting aside the verdict was that the court did not charge the jury on the issue of spoliation of evidence. Third, the plaintiffs claim that the court should have given a limiting instruction with regard to a ski rental agreement that was admitted into evidence. Finally, the plaintiffs contend that the jury did not deliberate for a sufficient period of time before returning its verdict.
STANDARD OF REVIEW
In the course of assessing a motion to set aside a verdict, the court must determine, in a light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences drawn therefrom, supports the verdict. The verdict should be set aside only if "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." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702-04, 900 A.2d 498 (2006). When the challenge is to a jury instruction, a motion to set aside a verdict should not be granted unless the court "is entirely satisfied, upon the authorities or the statutes, that [the court's] error was unmistakable and . . . unquestionably harmful." Jackiewicz v. United Illuminating Co., 106 Conn. 310, 311, 138 A. 151 (1927). The question to be addressed is whether the charge "fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) Lingenheld v. Desjardins Woodworking, Inc., 105 Conn.App. 163, 176, 936 A.2d 723 (2008).
1. General Statutes § 29-212
The plaintiffs argue that the court should not have charged the jury, at all, on General Statutes § 29-212. At trial, the parties stipulated that James Malaguit was skiing at a ski area at the time he was injured, and that he was injured while attempting to ski over a man-made ski jump. The evidence established that the jump was made of snow. The ski statute plainly provides, in relevant part, that "[e]ach skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) . . . variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming . . ." General Statutes § 29-212. The term "skiing" is defined within the statute as "sliding downhill or jumping on snow or ice using skis." General Statutes § 29-212(a).
The issue of whether the ski statute applied in the present case turned upon two questions of fact for the jury. The first question of fact was whether James Malaguit was injured because of "variations [in surface or subsurface snow or ice conditions] which [were] caused by the ski area operator . . ." The second question of fact for the jury was whether any such variation was "caused by snow making [or] snow grooming . . ." Both parties introduced evidence regarding the manner in which James Malaguit was injured, and both parties introduced evidence on the issue of how the ski jump was constructed and whether it was the product of "grooming." Thus, the court concludes that it was appropriate to submit to the jury the issue of the application of the ski statute.
The plaintiffs argue, alternatively, that the jury should have been given the legislative history relative to General Statutes § 29-212 so that the jurors could have ascertained the legislative intent behind the statute. The meaning of the statute at issue is plain, unambiguous, and does not yield absurd or unworkable results. Consequently, recourse to an analysis of legislative intent by the court, let alone the jury, is not only unnecessary but also inappropriate. General Statutes § 1-2z; Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 798, 970 A.2d 640 (2009).
The charge given to the jury was heavily influenced by input and requests by the plaintiffs. The parties were given the proposed charge prior to the charging conference. Thereafter, on October 18, 2010, the plaintiffs submitted a "Motion in Opposition to Defendant's Objection to the Court's Proposed Jury Charge on Assumption of the Risk." In that pleading, the plaintiffs took the position that the proposed charge, which was almost identical to the charge that was ultimately given, set forth the applicability of the ski statute.
In the aforementioned pleading, the plaintiffs argued that the jury charge should include an explanation of what is meant by the phrase "hazard inherent in the sport of skiing" as interpreted in the case of Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004). The plaintiffs' pleading, however, did not criticize the definition of the latter phrase as it appeared in the proposed charge. The court's charge on this issue was drawn directly from Jagger. In Jagger, the court assessed the statutory enumeration of examples of risks inherent in the sport of skiing and found that "[t]he common thread throughout these examples is that they are either a risk over which an operator has no realistic control — for instance, terrain variations not caused by the operator . . . or risks over which the operator has done all that he is reasonably required to do to protect skiers . . ." (Citation omitted; emphasis added.) Id. 694. In the present case, the court charged the jury that a hazard inherent in the sport of skiing is " either a risk over which a ski area operator has no realistic control or a risk over which the operator has done all that is reasonably required to do to protect skiers." (Emphasis added.) Trial Tr., 131-32, Oct. 19, 2010. The plaintiffs did not object to, or even refer to, the latter language in their October 18, 2010, motion, nor did they propose any alternative definitional language in their motion. Further, after the charge was given the plaintiffs had an opportunity to object to any aspect of the charge. The plaintiffs did raise some objections to the charge but they did not object to that aspect of the charge that defined "risks inherent in the sport of skiing."
The court also notes that it explained, prior to giving the charge, that it was including a definition of the phrase "hazards inherent in the sport of skiing," drawn from the Supreme Court's decision in Jagger, and that it was doing so over the defendant's objection. Trial Tr. 28, Oct. 19, 2010. Even though this point was highlighted for the parties, the plaintiffs offered no objection to this aspect of the charge.
2. Spoliation of Evidence
The plaintiffs move to set aside the verdict on the basis that the court did not charge the jury that the defendant had intentionally destroyed evidence. The court was aware of the standards that the plaintiffs had to meet before such a charge would be appropriate. In Beers v. Bayliner Marine Corp., 236 Conn. 769, 777-79, 675 A.2d 829 (1996), our Supreme Court outlined the four requirements for a spoliation charge: (1) that the spoliation of evidence was intentional, (2) that the destroyed evidence was relevant, (3) that the party seeking the charge acted with due diligence with respect to the spoliated evidence, and (4) that the jury instruction explain that the jury is not required to draw the inference that the destroyed evidence would be unfavorable but that it may do so if it is satisfied that the foregoing three conditions have been met.
The plaintiffs also argue that negligent loss of evidence warrants a spoliation charge. The plaintiffs rely on Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 247, 905 A.2d 1165 (2006) for the proposition that a spoliation charge is appropriate when "a plaintiff is unable to prove an essential element of her case due to the negligent loss or destruction of evidence by an opposing party, and the proof would otherwise be sufficient to survive a directed verdict, it is proper for the trial court to create a rebuttable presumption that establishes that the missing elements of the plaintiff's case that could only have been proved by the availability of the missing evidence." (Internal quotation marks omitted.) In the present case, the court did not find a sufficient basis for a charge on spoliation and, accordingly, did not give such a charge. Trial Tr. 30, Oct. 19, 2010.
The plaintiffs complain, first, that no photographs or videos were taken of the accident site on the night that the accident occurred, nor were there measurements taken of the ski jump. Further, they complain that witnesses to the accident were not interviewed, and an incident report was not completed. Finally, the plaintiffs complain that the defendant did not preserve photographs or a "complete" video taken the day after the accident, nor did the defendant maintain inspection and maintenance logs or images on its website.
Although the plaintiffs claim that the photographs and videos at issue were "vital evidence" in this case, they failed to demonstrate sufficiently how those images were "vital." A video of a ski competition at the accident site, taken the day after the accident, was available to the plaintiffs and was introduced into evidence as a defendant's exhibit. The plaintiffs took their own photographs of the site approximately two weeks after the accident. The evidence before the court was that the plaintiffs themselves could have taken measurements, photographs, and videos at any time after the accident and no one prohibited them from doing so. Thus, the plaintiffs did not sufficiently demonstrate how any photographs, measurements or any of the other information that they claim was allegedly lost would have provided critical information not available from the videotapes and photographs that were available to them. The plaintiffs made no showing that they were unable to prove an "essential element" of their case due to any allegedly lost evidence. Moreover, the plaintiffs did not sufficiently establish that the defendant controlled the photographs and videos that were allegedly lost or not retained by freelance and independent photographers and videographers. This case involved extensive discovery between the parties, and the defendant detailed to the court many opportunities that the plaintiffs had to acquire much of the information that they claim was not provided to them.
For all of the foregoing reasons, the court concluded that it would not charge the jury on the issue of spoliation of evidence.
3. The Plaintiffs' Request for a Limiting Instruction
The plaintiffs contend that the court should have given a limiting instruction with regard to a ski rental agreement, defendant's exhibit J. The ski rental agreement was redacted to eliminate waiver of liability language, but the plaintiffs objected to the fact that the document still carried the title, "Equipment Rental and Liability Release Agreement," and that it also stated that the skier assumed all risk of injury or death that may result from skiing.
At trial the question of a limiting instruction arose, not only with regard to defendant's exhibit J, but also with a lift ticket, defendant's exhibit TTT. The plaintiffs do not discuss exhibit TTT in their opening memorandum, and only mention it in passing in their reply memorandum. See Pl's. Reply Mem., 13, Nov. 24, 2010.
The court agreed to the plaintiffs' request that it give a limiting instruction. The court prepared a limiting instruction that explained to the jury that the only purpose for which defendant's exhibits J and TTT had been offered, and could be considered, was for the purpose of showing that James Malaguit had been given warnings and was put on notice of the risks associated with skiing. The defendant offered such evidence in opposition to the claims that the defendant had not adequately warned James Malaguit of the risks he might be taking by skiing at the defendant's facility.
Despite the fact that the plaintiffs requested a limiting instruction, they changed course when the court subsequently offered to give such an instruction. Plaintiffs' counsel, instead, asked the court not to give the limiting instruction because it would be "tantamount to commenting on evidence." Trial Tr. 50-51, Oct. 14, 2010. The court acquiesced to the plaintiff's position and offered to ensure that there would be nothing in the charge to suggest that either of the exhibits at issue precluded the plaintiffs from proceeding with their case or that because of the two exhibits, the defendant was immunized from liability. The charge that was given was consistent with the court's promise. Further, the court advised both parties that they would be free to proceed with the case and make closing arguments with the full understanding that they could argue to the jury that the jurors would hear nothing in the charge that would suggest that either of the exhibits at issue precluded the plaintiffs from proceeding with their case. The court asked the plaintiffs' counsel if he "would like to handle it that way," and the plaintiffs' counsel replied "Yes, sir." Id. The defendant did not, at any time, argue to the jury or otherwise suggest that any exhibit served to exculpate it from liability.
Despite having agreed on October 14, 2010, to address the issue as described above, five days later, immediately prior to the charge to the jury, the plaintiffs renewed their request for a limiting instruction relative to defendant's exhibits J and TTT. Defendant's exhibit J had been admitted on September 29, 2010, nearly three weeks before the jury charge was given. Defendant's exhibit TTT had been admitted on October 13, 2010, six days before the jury charge. The court declined to give a limiting instruction at that point for multiple reasons: (1) the plaintiffs had abandoned their initial request for a limiting instruction; (2) the parties and the court had agreed, on October 14, 2010, as to how the issue would be addressed; (3) the plaintiffs had rejected the court's proposed limiting instruction that explained the limited purpose for which the exhibits had been offered; and (4) to have singled out, in the jury charge, two of the defendant's exhibits that had long since been in evidence could have been interpreted by the jury as the court commenting, negatively, on the defendant's presentation of its case. Instead, the charge that was given carefully explained the only way that the jury could find that James Malaguit had assumed the risks inherent in the sport of skiing, i.e., through the application of the ski statute.
4. The Length of the Deliberations
The plaintiffs' final claim is that the jury, which returned a verdict approximately one hour and fifteen minutes after receiving the case, did not give sufficient deliberation to the issues presented to them. The plaintiffs acknowledge that they did not raise this objection when the parties were advised that the jury had returned a verdict.
This is not to indicate that the court would have necessarily declined to accept the verdict when it was reached, or that the court would have necessarily charged the jury that its deliberations were not yet of sufficient length. However, the failure by the plaintiffs to object at the time that the jury reported it had reached a verdict resulted in this issue not being addressed at a point when steps, other than setting aside the verdict and ordering a new trial, could have been taken.
Much of the plaintiffs' evidence related to their damage claims, and the jury was instructed not to consider damages unless it first found that the defendant was liable. The issue of negligence was among the first issues that the jury was directed to consider. If the jury did not agree that the defendant was negligent, then they could have reached their verdict at that point. There was no evidence that the jury engaged in misconduct or was affected by outside influences. Accordingly, there is no basis for setting aside the verdict based on the length of the deliberations in this case. See State v. Hernandez, 28 Conn.App. 126, 135-36, 612 A.2d 828, cert. denied, 223 Conn. 920, 614 A.2d 1236 (1992) ("[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict . . . Absent a claim of external influence or juror misconduct . . . [the court] will not interfere with the jury's verdict"); see also Forresst v. Koch, 122 Conn.App. 99, 111, 996 A.2d 1236 (2010); Judson v. Brown, 98 Conn.App. 381, 383, 908 A.2d 1142 (2006) (the court "must presume that the jury followed the court's instructions [if] there is no clear indication to the contrary").
5. Jury Interrogatories
The defendant argues that this case is subject to the general verdict rule because the plaintiffs did not request interrogatories prior to the charge to the jury. The defendant is correct that the plaintiffs apparently did not file their request for interrogatories prior to the charge. However, the court does recall that the plaintiffs provided the court with proposed jury interrogatories in the course of, or in relation to, the charge conference. The charge conference was not carried out on the record, so the timing of the plaintiffs' submission cannot be more precisely determined, but the record should reflect that the plaintiffs' submission was timely.
The defendant also submitted proposed jury interrogatories. The plaintiffs' proposed interrogatories focused on the ski statute, and the court was concerned that, if the proposed interrogatories were to be used, the jury would perceive the court to be taking a critical view of the defendant's case. Similarly, the defendant's proposed interrogatories did not appear, to the court, to be balanced. Trial Tr. 148, Oct. 19, 2010; Hr'g Tr. 41-42, Dec. 23, 2010. Further, the court was unable to prepare interrogatories that would be useful but would not simultaneously appear to oversimplify the issues that were carefully delineated in the charge to the jury. See Curry v. Burns, 225 Conn. 782, 793-94, 794 n. 4, 626 A.2d 719 (1993). The plaintiffs did not object to the court's decision not to submit interrogatories to the jury.
For all of the foregoing reasons, the court exercised its discretion not to submit jury interrogatories in this case. See Holbrook v. Casazza, 204 Conn. 336, 361 n. 3, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 699 (1988) ("[i]t is within the reasonable discretion of the trial court whether to submit pertinent interrogatories to the jury"); Gaulton v. Reno Paint Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979); Hartford v. Anderson Fairoaks, Inc., 7 Conn.App. 591, 594-95, 510 A.2d 200 (1986).
CONCLUSION
The court finds that none of the issues identified by the plaintiffs justify setting aside the verdict in this case. The motion is denied. So ordered.