Opinion
KNLCV156023266S
07-31-2017
De Ann Maurice v. Chester Housing Associates, Limited Partnership et al
UNPUBLISHED OPINION
RULING RE PLAINTIFF'S MOTION TO SET ASIDE THE VERDICT
Robert F. Vacchelli, Judge
This case was an action for money damages for injuries sustained by the plaintiff, De Ann Maurice, who alleged that she slipped and fell on the grounds of her apartment complex on December 12, 2013, due to ice and snow. The defendants were the property owner, Chester Housing Associates, Limited Partnership; the property manager, MJKH Property Services, LLC; and the snow removal contractor, Something Natural, LLC. The operative Second Amended Complaint was in six counts, however, at trial, the plaintiff pursued only the First, Third and Fifth Counts against the defendants for common-law negligence. The defendants denied the allegations and raised the special defense of comparative negligence. On May 15, 2017, the jury rendered its verdict for the defendants on all counts pursued by the plaintiff. Pending before the court is the plaintiff's motion, as supplemented, to set aside the verdict. Doc. Nos. 189.00 and 191.00. For the following reasons, the motion is denied. Therefore, judgment shall enter in favor of the defendants, Chester Housing Associates, Limited Partnership; MJKH Property Services, LLC and Something Natural, LLC and against the plaintiff, De Ann Maurice, accordingly.
I
General Statutes § 52-228b and Practice Book § 16-35 provide for motions to set aside the verdict and for new trials to remedy erroneous jury verdicts. The standard of review governing such motions 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 their 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, Nile 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." (Citations omitted; internal quotation marks omitted.) Edmands v. CUNO, Inc., 277 Conn. 425, 452, 892 A.2d 938 (2006).
II
The testimony, argument and deliberations in this case occurred on May 4, 5, 9, 10, 11, 12 and 15, 2017. The jury heard the testimony of witnesses Douglas Williams, general partner of the defendant property owner; Mark Hammond, owner of the defendant property manager; Deborah King, a tenant at the apartment and friend of the plaintiff; Tim Wetmore, snow plow operator; Mark Tebbets, expert witness for the plaintiff on issues of liability; De Ann Maurice, plaintiff; David Galligan, plaintiff's father; Frank Maletz, M.D., plaintiff's medical expert; Jeffrey Cissell, defendant's expert witness on liability issues and Peter Barnett, M.D., defendant's medical expert. It also reviewed numerous photographs, medical records, contracts and other types of documents and evidence admitted as exhibits in the case.
The jury could have reasonably found as follows: The plaintiff, De Ann Maurice, had been a resident of the Cherry Hill Apartment Complex in Chester, CT, owned by the defendant, Chester Housing Associates, Limited Partnership, for three or four years prior to her accident. The complex is composed of four buildings, built around a circular driveway containing parking spaces for tenants. There is a concentric sidewalk between the circular driveway and buildings. The sidewalk is separated from the driveway by a grassy median. There are a few walkways cutting through the median at intervals connecting the sidewalk with the driveway. The complex serves elderly and disabled people. The plaintiff, who was 54 years old at the time of trial, had been disabled due to a back condition since 1996. Two days prior to the accident, it had snowed. The snow on the sidewalks, walkways, driveway and parking spaces had been cleared and treated by the defendant, Something Natural, LLC, under contract arranged by the defendant, MJKH Property Services, LLC, for the property owner.
On December 12, 2013, it was a sunny day. The plaintiff left her apartment to get her friend, Deborah King, who lived in the building next door, to get their nails done. The plaintiff's car was parked in a parking space in the circle directly in front of plaintiff's building. However, to get to her car, she needed to walk down the sidewalk and away from her car, enter the driveway via a walkway, and then walk back up the driveway to get to her car. To save effort, her husband had cleared a short-cut across the grassy median so that she could walk straight out of her apartment to her car. The short-cut was poorly cleared of ice and snow. The parties are in disagreement as to what happened next, as the plaintiff's credibility was cast in doubt by her inconsistent testimony and evidence, but the plaintiff testified that she slipped and fell while taking the short-cut, and the jury could reasonably have found that to have been the case. She presented evidence arguing that, inter alia, she sustained an injury to her right ankle as a result of the fall.
Plaintiff's counsel's theory of liability centered on two main claims: First, that the plaintiff's injuries were caused by the failure of all three defendants to take reasonable steps to clear the ice and snow; second, that her injuries were caused by the defendant property owner and defendant property manager's faulty design of the complex, in violation of certain building codes and standards concerning handicapped accessibility and the Americans with Disability Act. 42 U.S.C.A. § 12132, which compelled her to take the short-cut across the grass.
The jury was given interrogatories and verdict forms. The interrogatories asked, with respect to each defendant, whether the plaintiff had proven, by a preponderance of the evidence, that any defendant was negligent in any of the ways claimed by the plaintiff, and whether she had proven, by a preponderance of the evidence, that such negligence was a proximate cause of her alleged injuries. In case of a verdict for the plaintiff, the plaintiff's verdict form asked the jury to identify the defendant liable, grounds for liability, to make allocations as to liability and comparative negligence as it found appropriate, and to award damages. The jury was also given defendant's verdict forms in the event it found the issues for any defendant. On May 15, 2017, the jury rendered verdicts for all three defendants. Thence, the plaintiff filed the pending motion.
III
The plaintiff presents four main issues in her their post-trial motion. She argues that the verdict should be set aside because (A) the jury's answers to interrogatories were inconsistent with the evidence; (B) because the jury interrogatory forms misdirected the jury to use a defendant's verdict form if it found that the defendants were not a proximate cause of the plaintiff's injury rather than directing it to a comparative negligence evaluation on the plaintiff's verdict form; (C) because the court erred in not accepting plaintiff's witness, Mark Tebbets, as an expert in snow removal; and (D) because the court should have defaulted the defendant, Chester Housing, Limited Partnership, due to litigation misconduct. The issues are discussed and resolved seriatim:
A
The plaintiff's first argument is that, based on the evidence, it was inconsistent for the jury to find that Chester Housing Associates, Limited Partnership, and MJKH Property Services, LLC were negligent, but that their negligence was not a proximate cause of any injury to the plaintiff. She argues that all of the evidence and testimony presented in the case, at least with regard to the injury to her right ankle, showed that the injury resulted from her fall on December 12, 2013. The court is not persuaded. There is no inconsistency.
As noted above, the plaintiff presented two theories of liability as to the property owner and manager: (1) negligence in clearing snow and ice, and (2) negligent design of the walkways. Only one theory of liability was presented against the snow removal contractor: negligence in clearing snow and ice. The basis for liability against the owner and manager in clearing snow and ice was a vicarious one, i.e. they were liable because their agent contractor was negligent. It is clear that the jury found no negligence in clearing ice and snow as to the contractor. The jury answered " no" on this point as to the contractor on the jury interrogatory form. Thus, the owner and manager would not be liable on the vicarious liability claim, either. Accordingly, when the jury found the owner and manager negligent " in any of the ways she alleged in her complaint" it was on the basis of the negligent design of the walkways. When they found that the negligence of those defendants was not a proximate cause of her injuries, it is clear that the jury found that the owner and manager were negligent in exposing their tenants to a poorly designed walkway system inconvenient to their population of handicapped tenants, but that this defect did not play a legally significant role in her injury as the walkways were reasonably cleared of ice and snow. Plaintiff fell not on the walkway, but on a short-cut across the grass of her own making. Thus, it was not inconsistent for the defendants to be found negligent but that their negligence was not a proximate cause of her injuries. Furthermore, the law allows for such an outcome.
The law provides that, to prevail in a negligence claim, the plaintiff must not only prove a breach of a duty, but causation, too. Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999). The test for proximate cause is whether the defendant's conduct was a substantial factor in bringing about the plaintiff's injuries. Phelps v. Lankes, 74 Conn.App. 597, 602, 813 A.2d 100 (2003). Where there is no significant nexus between the defendants' conduct and the plaintiff's accident, the plaintiff has failed to prove her case. See Kumah v. Brown, 130 Conn.App. 343, 352, 23 A.3d 758 (2011). The jury was clearly instructed on this point:
On each claim, a plaintiff must prove that any (injury/harm) for which she seeks compensation from the defendants was proximately caused by those defendants.
Negligence is a proximate cause of an injury if it was a substantial factor in bringing the (injury/harm) about. In other words, if the defendants' negligence contributed materially and not just in a trivial or inconsequential manner to the production of the injury/harm, then their negligence was a substantial factor. If you find that the defendants' negligence was not a substantial factor in bringing about the injury/harm suffered by the plaintiff, you will render a verdict in favor of the defendants. However, if you find that the defendants' negligence was a substantial factor in causing injury/harm to the plaintiff, you will consider the assessment of damages.
Jury Instructions, para. 15.
Alternatively, the defendants argue that there was so much inconsistency in the testimony by the plaintiff and in the evidence, that the jury could simply have disbelieved that her injury occurred on the defendants' property. That, also, was a possibility which would explain their finding.
Accordingly, the court finds that, based on the evidence, it was not inconsistent for the jury to find that Chester Housing Associates, Limited Partnership and MJKH Property Services, LLC were negligent, but that their negligence was not a proximate cause of any injury to the plaintiff.
B
Next, the plaintiff argues that the verdict should be set aside because the jury interrogatory form misdirected the jury to use the defendants' verdict form if it found that the defendants, Chester Housing Associates, Limited Partnership, and MJKH Property Services, LLC were not a proximate cause of the plaintiff's injury rather than directing it to a comparative negligence evaluation on the plaintiff's verdict form. The court does not agree.
The instructions on the jury interrogatories directed that if the jury found the negligence of the defendants, Chester Housing Associates, Limited Partnership, and MJKH Property Services, LLC, to not be a proximate cause of the plaintiff's injuries, then the jury should complete the defendants' verdict form for those defendants. See Interrogatories, Part B, para 2, Instructions. That was the correct instruction. Causation is an essential element of the plaintiff's cause of action. Kumah v. Brown, supra, 130 Conn.App. 353. Comparative negligence is a special defense. Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 650, 935 A.2d 1004 (2007). Having determined that the plaintiff did not prove causation, the plaintiff did not prove her case, and it was unnecessary for the jury to consider any special defenses. Attruia v. Attruia, 18 Conn.Supp. 156, 161 (1952), aff'd, 140 Conn. 73, 98 A.2d 532 (1953)
C
Plaintiff argues that the court erred in not accepting plaintiff's witness, Mark Tebbets, as an expert in snow removal. At trial, the plaintiff offered Tebbets as an expert on codes and ordinances (including the requirements of the Americans with Disabilities Act) and snow removal. The court accepted him as an expert on codes and ordinances, but not on snow removal. The plaintiff argues that the error requires a new trial. The court does not agree that there was any error.
With regard to snow removal, there was nothing on Mr. Tebbets' resume mentioning knowledge or experience on the point. He testified, in pertinent part, that he shoveled snow for his mom and dad when he was young, that he learned how to snow plow and did some snow removal at his own rental property and his family's mobile home park over 30 or 40 years ago. He has worked at places where other people remove snow. He does not do it himself anymore.
Ordinarily, only expert witnesses are permitted to give opinions at trial. Code of Evidence, § 7-1. In order for an expert to render an opinion, he must be qualified to do so. Code of Evidence § 7-2; State v. Wilson, 188 Conn. 715, 722, 453 A.2d 765 (1982). The sufficiency of an expert witness' qualifications is a preliminary question for the court. Blanchard v. City of Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983). Whether a witness is sufficiently qualified to testify as an expert depends on whether, by virtue of the witness's knowledge, skill, experience, training, education or otherwise, his or her testimony would assist the trier of fact in understanding the evidence or in determining an issue of fact. Code of Evidence § 7-2; Weinstein v. Weinstein, 18 Conn.App. 622, 631, 561 A.2d 443 (1989). " The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter, but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinion founded on such knowledge or experience any aid to the Court or jury in determining the questions at issue." (Citations omitted; internal quotation marks omitted.) Green v. Ensign-Bickford Co., 25 Conn.App. 479, 489, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).
Based on his testimony and performance on the witness stand, the court concluded that, with respect to snow removal, the witness had no more knowledge or experience on the point than any juror in Connecticut who encounters snow every winter, and who undoubtedly removes snow or observes the removal of snow every winter and can commonly ascertain whether it was removed with reasonable care or not. Mr. Tebbets did not exhibit any peculiar or uncommon knowledge or experience on point, and, therefore, he was not accepted as an expert on snow removal.
Even if the court erred in not allowing him to testify as to snow removal procedures, the error was harmless. He was accepted as an expert on codes and ordinances (including the requirements of the Americans with Disabilities Act). He was free to testify as to the existence of any codes and ordinances that might be applicable to snow removal implicated in any code violations alleged in the Second Amended Complaint, and the defendants' lack of compliance therewith, if any.
D
Finally, the plaintiff argues that the verdict should be set aside because the sanction ordered for the litigation misconduct of Douglas Williams, general partner of the defendant, Chester Housing Associates, Limited Partnership, was inadequate. The court found that Mr. Williams had sexually harassed plaintiff's counsel, Kelly Reardon, to distract her so as to gain a tactical advantage in the litigation and trial. The sanction ordered by the court was to have Mr. Williams sit in the back of the courtroom during trial, have no contact with Kelly Reardon, except when testifying, and to pay attorneys fees to be determined. See Transcript of Order, Doc. No. 192.00. Plaintiff argues that the sanction should have been a default against the defendant in the case, which would have rendered Chester Housing Associates, Limited Partnership, liable for damages for the slip and fall. The court does not agree.
The court's findings and explanation for the sanctions it chose were fully explained on the record. See Transcript, Id. In sum, the court found that Mr. Williams sent an inappropriate, disturbing and sarcastic e-mail to Attorney Reardon after a deposition in the case, asking her for a date. After he was warned by police to have no contact with her, during a recess in the case in court on April 27, 2017, he stated, loudly enough for her and others to hear, that " he wanted [her] sit on his fucking head." The court found that his conduct was designed to cause her distress and to distract her from focusing on her performance in the case to gain an advantage in the litigation. His conduct had its desired effect. Attorney Reardon became very upset.
At hearing, plaintiff's counsel asked for various sanctions for the litigation misconduct, one of which was for a default. The court declined to enter a default. It found that it would not be fair to cause the business to be liable in a slip and fall case due to the personal misconduct of Mr. Williams. It found it appropriate to focus its sanctions against Mr. Williams for his abuse of Attorney Reardon, the actual victim, and it found the sanctions levied to be in the appropriate measure.
The trial court has inherent authority to impose sanctions for a course of dilatory, bad faith and harassing litigation conduct. Millbrook Owners Ass'n, Inc. v. Hamilton Standard, 257 Conn 1, 9, 776 A.2d 1115 (2001). The ultimate sanction, of course would be a default, but that is reserved for the most egregious cases. See Ridgaway v. Mount Vernon Fire Insurance Company, 165 Conn.App. 737, 761, 140 A.3d 321 (2016), cert. granted, 322 Conn. 908, 140 A.3d 978 (2016); Stanley Shenker & Assocs. v. World Wrestling Fed'n. Entm't, Inc., 48 Conn.Supp. 357, 373, 844 A.2d 964 (2003). It would not be a proportional penalty to cause De Ann Maurice to win her slip and fall case against Chester Housing Associates, Limited Partnership without proof due to the fact that Mr. Williams personally harassed her attorney. The court's personal sanctions against Mr. Williams directly fit the personal nature of his abuse.
IV
For all of the foregoing reasons, the plaintiff's motion is denied. Therefore, judgment shall enter in favor of the defendants, Chester Housing Associates, Limited Partnership; MJKH Property Services, LLC and Something Natural, LLC, and against the plaintiff, De Ann Maurice, accordingly.