Opinion
No. CV-02-0174593S
August 18, 2004
MEMORANDUM OF DECISION
This is a decision on the plaintiff's motion to set aside and for new trial, dated August 6, 2004.
The plaintiff, Mary Zwick, instituted the present action seeking to recover monetary damages far personal injuries as a result of a fall on an escalator in the Filene's Men's Store in the West Farms Mall on December 8, 2000. She claimed that the fall was the result of the negligent maintenance of the escalator by the defendant owner, The May Department Stores Company (hereinafter "May") and the defendant maintenance company, KONE, Inc. (hereinafter Kone). The plaintiff claimed that as a result of the fall and the defendants' negligence, she sustained ankle and other injuries.
Trial commenced on July 22, 2004. The jury heard testimony over four days from the following: the plaintiff, Mary Zwick; the plaintiff's son, Andrew Zwick; the plaintiff's expert, an elevator/escalator consultant John Mundt; May's maintenance supervisor, Joseph Taverney; an inspector from the state department of public safety, Ed Sedgwick; a mechanic superintendent from Kane, Bruce Silva; and the defendant's expert, a self-employed escalator consultant, David Steel. The parties submitted proposed jury instructions and proposed jury interrogatories. On July 28, 2004, the court charged the jury, and the plaintiff did not take any exceptions to the charge, or the jury interrogatories. The jury returned a defendant's verdict after less than one hour of deliberations. The plaintiff now claims the court's instructions were insufficient in several respects, that the jury's verdict was against the evidence and that the argument by defense counsel was improper which deprived her of a fair trial.
For the reasons set forth below, the court denies the motion to set aside the verdict and for a new trial.
I CT Page 12033
It is with some hesitancy that the court approaches a motion to set aside a jury verdict because of the gravity of the issues involved. "Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court . . . Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury." (Citations omitted; internal quotation marks omitted.) Wallace v. Haddock, 77 Conn.App. 634, 636-37 (2003).
II.
The plaintiff first claims that the court erred in its charge on the standard of care by not charging as requested that the plaintiff was owed the highest degree of care from the defendants May and Kone. The plaintiff claims the standard that should have been charged is that as is applied to common carriers, and cites Firszt v. Capitol Park Realty Co., 98 Conn. 627, 635-37 (1923). Plaintiff claims that the defendants, as a carrier of passengers, owed the plaintiff the highest degree of care and diligence. In Firszt, however, the standard of care at issue was to be applied to the operators of an amusement park ride.
With reference to the duty of care, the court charged the jury as follows: "Negligence is the violation of a legal duty which one person owes to another to care for the safety of that person or that person's property. Said another way, negligence is the failure to use or to exercise reasonable care, or it may be the omission to do that which a reasonably prudent person would have done under similar circumstances or conditions. In describing the duties involved in this case, I use the term "reasonable care." Reasonable care is defined as the care which an ordinarily prudent or careful person would use in view of the surrounding circumstances. You must determine the question by placing an ordinarily prudent person in the situation of the defendants' employees and ask yourselves, what would such a person have done? Note that it is the care that such a person would have used under the surrounding circumstances; that is, in view of the facts known or the facts of which the party should have been aware at the time. The standard of care required, that of an ordinarily prudent person under the circumstances, never varies; but the degree or amount of care may vary with those circumstance. For example, in circumstances of slight risk or danger, a slight amount of care might be sufficient to constitute reasonable care, while in circumstances of greater risk or danger, a correspondingly great amount of care would be required to constitute reasonable care. The law requires that a person use reasonable care under all of the circumstances."
In Stratton v. Newberry Co., 117 Conn. 522, 525 (1933), court addressed the standard for escalators and held as follows:
(a)s applied to the duty of department stores toward those entering as customers, reasonable care must be exercised to have the premises safely constructed, and in their operation reasonable care must be employed for the protection of the invitee. Reasonable care is care proportionate to the nature of the instrumentalities involved and the circumstances ordinarily attending. It is always to be proportionate to the hazards reasonably to be apprehended . . . In operating its escalator for the convenience of its customers, the defendant was not a common carrier of passengers for the reason, pointed out by Holmes, C.J., in Seaver v. Bradley, 179 Mass. 329, 330, . . . that it could have refused to carry the plaintiff without incurring any liability to her. (Citations omitted.)
More recently, the court, citing Stratton, "restricted the application of the common carrier standard of care to common carriers in fact and have consistently refused to extend it to other modes of passenger conveyance," Hunt v. Clifford, 152 Conn. 540, 544 (1965).
The plaintiff cites no Connecticut cases which support the proposition that the duty required for maintenance or ownership of escalators is the highest degree of care. Therefore, the court believes that the jury was charged correctly regarding the defendants' duties and will not set aside the verdict on those grounds.
III.
The plaintiff next claims that the court erred in failing to adequately reference evidence in charging the jury and furnish a practical guide for the jury to apply the law to the evidence. "The matter of commenting on evidence rests in a trial court's sound discretion . . . Although a trial court has not only the right, but often the duty to comment on the evidence; . . . [a] court's review of the evidence in its charge to the jury is subject to the overriding consideration that its comments be fair and that they not mislead the jury, so that injustice is not done to either party . . . The nature and extent of a court's comments depends largely on the facts of a case and the manner in which it was tried . . . It is the duty of the trial judge, in submitting the law and the facts to the consideration of a jury, to refer to the testimony so far as may be necessary to assist the jury to a clear apprehension of the relation of the testimony, whose credibility they must determine, to the material facts they must decide . . . It is evident that whenever this duty is well done, the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case." (Citations omitted; internal quotation marks omitted.) Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 669 (1991). The charge to the jury was fair, and the court justifiably did not charge as the plaintiff requested and refer to such evidence that was in dispute. As the plaintiff points out in the brief in support of the motion to set aside, the parties only agreed to the fact that the plaintiff fell, and virtually every other fact and issue in the case was contested and the parties introduced conflicting evidence on every allegation. There was disputed testimony regarding how the plaintiff fell, the extent of her ankle injuries and the extent of the escalator's maintenance. To give the jury a one-sided rendition of the facts in the charge as requested by the plaintiff would be unfair and misleading. The plaintiff has not submitted any compelling argument and the court has no reason to believe that the jury had any difficulty in applying the law as submitted to them to the material facts that they found in rendering a verdict.
Specifically, the plaintiff requested a charge that the court comment that "the evidence confirmed the last time any escalator was serviced was on October 17, 2000, over 7 weeks before the plaintiff was caused to fall", and "I remind you of defendant Filene's employees' daily cleaning with industrial stainless steel on the escalator, and the admission of Mr. Bruce Silva that when the stainless steel was cleaned some industrial cleaner would drop on the dilicon (sic) causing it to deteriorate."
As such, the court will not set aside the verdict on those grounds.
IV.
The plaintiff also claims that the jury could not reasonably and legally have reached a defendant's verdict based upon the evidence, in that there was uncontroverted evidence of negligence. "In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 449 (2003). "The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict, but 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, or as to justify the suspicion that [the jurors] or some of them were influenced by prejudice, corruption or partiality." (Citations omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774 (1992).
"[T]he court should not act as the seventh juror with absolute veto power. Whether the court would have reached a different [result] is not in itself decisive . . . The court's proper function is to determine whether the evidence, reviewed in a light most favorable to the prevailing party, reasonably supports the jury's verdict." (Citations omitted; internal quotation marks omitted.) Johnson v. Chaves, 78 Conn.App. 342, 347 (2003).
In the present case, the jury heard testimony and viewed other evidence regarding the plaintiff's fall on the escalator. The court noted at least five different versions or theories as to how the plaintiff was caused to fall. The plaintiff's son, Andrew Zwick testified that his mother's foot got tangled and caught in the side of the escalator which caused her to fall. The plaintiff herself, depending on which of her versions is referred to, testified that either she did not know how she fell, or gave a version which contradicts her son's version, in that she was in the center of the escalator when she fell. The plaintiff's expert, John Mundt, testified that the plaintiff's sneaker caught the escalator skirt, which if it was not maintained with anti-friction material, such as silicon, would cause her to fall. Plaintiff's physician, Dr. Gerard Abidor opined that plaintiff sustained injuries when her foot got caught in the escalator. The defense expert, David Steel, noted the lack of damage to the plaintiff's sneaker and disputed that plaintiff's foot became entangled in a gap entrapment. Mr. Steel's opinion was that the plaintiff's fall resulted when she lost her balance when the back of her foot was pressured by the escalator riser.
While the plaintiff takes great pains to attempt to show the insufficiencies of the warning signs on the escalator, the testimony and evidence supported the conclusion that the warning signs were in compliance with applicable building or escalator safety codes, which is evidence of due care. Further, the existence of warning signs are irrelevant to some of the theories put forth as to how the plaintiff was caused to fall.
Therefore, there being some evidence upon which the jury could reasonably have based its defendants verdict, the court will not set the verdict aside. In addition in viewing the evidence presented, the court does not believe that the jury's verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.
V.
The plaintiff lastly argues that in closing argument, counsel for Kone commented on matters not in evidence which deprived the plaintiff of a fair trial. "While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider . . . However, [i]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument . . . [W]e must review the comments complained of in the context of the entire trial." (Citations omitted; internal quotation marks omitted.) Durso v. Aquilino, 64 Conn.App. 469, 476 (2001).
Specifically, plaintiff takes issue with the following from defendant's closing argument: "(s)ome people can't send somebody away from court without anything. Those people aren't here, because we questioned a lot of people to pick this jury. And the people who said they couldn't if she didn't prove her case through her lawyer, she didn't prove her case we asked everybody can you send them away. And the ones who said, it might be hard, they're not here. You are here because you told us you could do that if that's what was required. And that's what's required. She did not prove her case."
"[I]n closing argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom. Skrzypiec v. Noonan, 228 Conn. 1, 16, 633 A.2d 716 (1993). Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence." (Citations omitted; Internal quotation marks omitted.) Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 369 (2002). The comments of defense counsel in closing dealt with the questions asked to other prospective jurors during voir dire. Arguably, those comments cite facts that were not in evidence. Plaintiff's counsel did not object during argument or after to the comments made by Kone's counsel.
However, the "Supreme Court has ruled that failure to object at the proper time or to request a curative instruction or charge constitutes a waiver of a claim of error. Skrzypiec v. Noonan, 228 Conn. 1, 13, (1993)," (Citation omitted.) Murray v. Taylor, 65 Conn.App. 300, 312 (2001). "Only in the most exceptional circumstances[, however,] will this court consider a claim that was not raised [below] . . . Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial." (Citations omitted.) Skrzypiec v. Noonan, 228 Conn. at 14-15.
There have been several recent criminal cases examining improprieties during closing argument, and the effect on the constitutional rights of parties. "In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state's case . . . Just as the prosecutor's remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified we must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial . . . Thus, the question in the present case is whether the sum total of [the state's attorneys alleged] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties." (Citations omitted; internal quotation marks omitted.) State v. Peeler, 267 Conn. 611, 642 (2004).
Even in applying the constitutional standards as set out in the criminal context to the challenged remarks in this matter, the court does not find that the remarks harmed the plaintiff. The challenged remarks did not involve a central issue in the case, and were a mere few sentences in a forty-five minute closing argument. Plaintiff's counsel did not object at the time or after the argument. The court does not feel that the verdict would have been different absent the comments, nor did the closing argument deprive the plaintiff of a fair trial.
VI.
In conclusion, the plaintiff's motion to set aside the verdict and for new trial is denied.
Matasavage, J.