Opinion
No. FST CV03-0197324S.
November 17, 2006.
Memorandum of Decision on Plaintiff's Motion to Set Aside Verdict
Procedural and Factual Background
This is a personal injury action commenced by the plaintiff Godfrey Burton against the City of Stamford arising out of a head-on collision between an automobile operated by the plaintiff and a City of Stamford police cruiser operated by Officer James Grabinski. At the time of the collision the police officer was responding to an emergency call with emergency strobe lights and siren activated. The City of Stamford is the sole defendant in the case. Officer Grabinski was not sued.
The plaintiff's complaint alleged that the collision and the plaintiff's resulting injuries were caused by the negligence of Officer Grabinski who was acting with the express knowledge, permission and authority of the City of Stamford. The plaintiff further alleged that the officer failed to operated the police cruiser while responding to an emergency call in such a way as not to endanger life or property in violation of Connecticut General Statutes § 14-283. The complaint alleges that the defendant City of Stamford is liable to indemnify the plaintiff for his injuries and damages pursuant to the provisions of Conn. Gen. Stat. § 7-465 which provides, in part:
§ 14-283(b) permits the operator of any emergency vehicle to ". . . (1) park or stand such vehicle, irrespective of the provisions of this chapter, (2) proceed past any red light or stop signal or stop sign, but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing, and (4) disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special, or local, shall pay on behalf of any employee of such municipality, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty.
The defendant City of Stamford denied liability and filed three special defenses of contributory negligence, governmental immunity and plaintiff's failure to state a cause of action.
Jury trial commenced on November 16, 2005. After the plaintiff had rested his case at the end of the day on Friday, November 18, 2005 the defendant made an oral motion for directed verdict on two grounds: (1) that there was insufficient evidence as to the alleged negligence of the police officer and the cause of the collision and (2) governmental immunity, in that the plaintiff had failed to prove an indemnity case under Conn. Gen. Stat. § 7-465 because no individual City employee was a defendant in the case and there was no evidence that any city employee had been held liable for Mr. Burton's injuries, and no other statute abrogating governmental immunity had been pleaded. Following argument of both counsel the court reserved decision as to the first ground pursuant to Practice Book § 16-37 and deferred decision as to the second ground until the next scheduled trial date which was Tuesday, November 22. On Monday, November 21, 2005 the plaintiff filed by fax a memorandum of law expanding on his primary argument in opposition to the motion for directed verdict, namely that the plaintiff was basing his case not on § 7-465 but on Conn. Gen. Stat. § 52-557n which provides that: "(a) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) the negligent acts or omissions of such political subdivision or any employee, officer, or agent thereof acting within the scope of his employment or official duties . . ." In his memorandum of law the plaintiff conceded that he had not pleaded or proved a case under § 7-465:
In Spears v. Garcia, 263 Conn. 22, 29 (2003) the Supreme Court had held that § 52-557n authorizes a direct cause of action in negligence against a municipality and " . . . clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents.
. . . because an action brought pursuant to § 7-465 requires the employee to be named as a defendant in order for the municipality to be liable for indemnification based upon the employee's negligence in operation of a motor vehicle. Kay v. Manchester, 20 Conn.App. 439, 443-44 (1990); Ivimey v. Watertown, 30 Conn.App. 742, 752 (1993) (the town's liability is contingent on the judgment against its employee); and a review of the Complaint shows that Officer Grabinski was not named as a defendant and no cause of action under § 7-465 plead." Plaintiff's Memorandum of Law Concerning Defendant's Claim of Legal Insufficiency of the Operative Complaint and Alleged Lack of Notice Regarding Conn. Gen. Stat. § 52-557n as the Basis for Liability, November 21, 2005, p. 2, note 2.
The plaintiff contended, nonetheless, that it had proved a case against the City under § 52-557n which does not require that the individual employee be joined as a defendant or found to be individually liable. Although § 52-557n is not pleaded or mentioned in the complaint, the plaintiff argued that he was nonetheless entitled to proceed under that statute because he claimed that the City had been put on notice of plaintiff's reliance on § 52-557n at an earlier stage of the proceedings in connection with a short calendar ruling denying the City's motion to strike a contributory negligence special defense to a counterclaim for property damage to the City's police car. The special defense to counterclaim had alleged the contributory negligence of Officer Grabinski. The City had moved to strike the special defense on the ground that Officer Grabinski was not a party to the case and that his negligence could not be imputed to the City. The court (Radcliffe, J.) denied the motion to strike, holding that the officer's negligence could be imputed to the City, citing § 52-557n, which does not require that the individual employee be made a party to the action. Burton v. City of Stamford, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV03-0197324S (March 9, 2005, Radcliffe, J.); 2005 Ct.Sup. 4141.
§ 52-557n was also mentioned briefly at the outset of the trial by plaintiff's co-counsel Paul Pacifico when the court inquired on the record as to the basis of the City's governmental immunity special defense. (Transcript Excerpt, November 16, 2006, p. 3.)
Plaintiff's argument that he was entitled to proceed under a statute other than the statute specifically pleaded in his complaint was ultimately grounded in a well established judicial unwillingness to enforce literally the requirement of Practice Book § 10-3(a) that " . . . when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number." The specific pleading requirement of Practice Book § 10-3(a) and its predecessors has repeatedly been construed to be directory rather than mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 545 (2000); Goodrich v. Diadato, 48 Conn.App. 436, 443 (1998); Rowe v. Godou, 12 Conn.App. 538, 542 (1987), rev'd on other grounds 209 Conn. 273 (1988). Colon v. New Haven, 60 Conn.App. 178 n. 4, cert. denied, 255 Conn. 908 (2000). ("As long as the defendant is sufficiently apprised of the nature of the action the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery"). The plaintiff cited Spears v. Garcia, 66 Conn.App. 6 (2001) affirmed 263 Conn. 22 (2003) as a situation where that principle was applied to a plaintiff seeking to base her tort claims on § 52-557n where that statute had not been plead in the complaint. In Spears the plaintiff had sued the City of Bridgeport and the Bridgeport Fire Department for negligently causing her injuries. She cited no statutory authority in her complaint. The defendants moved for summary judgment because there was no citation of any statute abrogating governmental immunity. The Appellate Court reversed the granting of summary judgment, holding that the plaintiff's reference to § 52-557n for the first time in her memorandum in opposition to motion for summary judgment was sufficient notice to the defendants that she was relying on § 52-557n. " . . . although a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Emphasis in original.) 66 Conn.App. at 676. In opposition to the plaintiff's memorandum of law, the defendant submitted a copy of the Appellate Court's opinion in Gaudino v. East Hartford, 87 Conn.App. 353 (2005) where plaintiff's injured in a high speed police pursuit sued the town for alleged negligence of its police officers in conducting the chase. The plaintiffs, as in this case, had cited § 7-465 in the complaint but had no case under § 7-465 because they had not sued the individual officers. In objecting to the town's motion for summary judgment the Gaudino plaintiff's for the first time cited § 52-557n in their opposing papers. The Superior Court granted summary judgment on the ground of governmental immunity. The Appellate Court affirmed, saying:
The plaintiff's could have pursued an action against the municipality under either § 7-465 or § 52-557n. They cannot, however, alter the statute under which their claim was based without amending their complaint. This they failed to do. We conclude, therefore, that the court properly granted the defendant's motion for summary judgment on the ground of municipal immunity because the plaintiff's brought suit under § 7-465 without also suing a municipal employee or agent . . . fn6. That issue is dispositive. We decline, therefore, to review the plaintiffs' other claims.
87 Conn.App. at 359 and note 6.
The Gaudino court distinguished Spears v. Garcia, supra, on the ground that the plaintiff in Spears had cited no statute at all in her complaint, while the plaintiffs in Gaudino had erroneously cited § 7-465 in their complaint. " Spears is distinguishable from this case. In that case, the plaintiffs' complaint was ambiguous in that it did not mention any statutory authority that abrogated governmental immunity. In contrast, the plaintiffs in the present case included in their complaint a clear citation to § 7-465, the statute on which they were relying." 87 Conn.App. at 359.
On November 22, 2005 the court heard additional argument from both parties and then ruled on the governmental immunity portion of the motion for directed verdict by granting the motion. The reasons for granting the directed verdict were set forth at length on the record. (Transcript, November 22, 2005 p. 25-32.) The authority for granting the directed verdict was the Appellate Court's holding in Gaudino v. East Hartford, supra, on virtually identical facts. After the court had ruled on the motion for directed verdict but before the jury was called in and directed to return a verdict for the defendant, the plaintiff moved orally to amend the complaint "to strike the surplusage of the statutory language." (Transcript, November 22, 2005 p. 32.) (Obviously, the motion was to strike the reference to § 7-465 from the complaint and leave the complaint without any statutory reference.) The court denied the motion to amend on the ground of timeliness in that the motion for directed verdict had been granted and it was too late to move to amend the complaint. (Transcript, November 22, 2005, pp. 32-35.) Thereafter, at the court's direction, the jury entered a verdict for the defendant and the jury was dismissed.
On December 1, 2005 the plaintiff filed a Motion to set Aside Verdict asking that the directed verdict be set aside on five grounds and that the court order a retrial. For reasons set forth in detail on the record at oral argument the court denied the motion to set aside as to all grounds except Point 5: "The court erred in denying the plaintiff's oral motion to amend the complaint and delete the reference to § 7-465." The court ordered briefs on the issue of the timeliness of the oral motion to amend complaint, and also on an issue raised during oral argument by counsel for the defendant, namely, that the court should preserve the record by ruling now on the evidenciary insufficiency portion of the defendant's motion for directed verdict made at the conclusion of the plaintiff's case (as to which the court had reserved decision under Practice Book § 16-37). Briefs have been filed. The issues now before the court are the propriety of the court's denial of the plaintiff's oral motion to amend the complaint made after the motion for directed verdict had been granted (and, if that motion should have been granted, whether the directed verdict should be set aside) and whether or not the court should now rule on the evidentiary insufficiency claim of the defendant's motion for directed verdict.
Discussion A. Motion to Amend Complaint.
The defendant opposes the motion to amend on three grounds: (1) that the oral motion to amend was not properly made because the plaintiff should have filed a written motion or request to amend; (2) that the motion was untimely; and (3) that the court did not abuse its discretion in denying the motion to amend. The plaintiff does not address the argument that the oral motion to amend was improper, but argues that the motion was not untimely, having been made before judgment entered, and that it was an abuse of discretion to deny the amendment, especially since the plaintiff's reliance on § 52-557n had become the "law of the case" by virtue of Judge Radcliffe's ruling denying the motion to strike the special defense to the former counterclaim for property damage to the police car.
It was agreed that the property damage counterclaim had been withdrawn by the defendant city prior to trial.
The court had discretion to entertain the oral motion to amend. The Practice Book provisions for filing written requests to amend (Practice Book § § 10-59 et seq.) do not exclude the court's discretion to entertain an oral motion to amend. § 10-60 allows amendments to pleadings by written consent of the adverse party, by filing a written request for leave to amend which is not objected to or, if there is an objection, if the objection is overruled, or "by order of judicial authority." An oral motion to amend addressed to the trial court is " . . . made in accordance with Practice Book § 176 [the predecessor to the present § 10-60] which allows a party to amend a complaint with leave of the court." Carchrae v. Carchrae, 10 Conn.App. 566, 569 (1987). The Supreme Court has held that it was an abuse of discretion for the trial court to have denied an oral motion to amend complaint made during jury selection. Falby v. Zarembski, 221 Conn. 14, 25 (1992). In this case, a writing was not necessary to understand the nature of the requested amendment which was simply to delete the reference in the complaint to § 7-465 of the statutes. At the time, the defendant objected to the motion to amend on the merits and on timeliness, but did not object because the motion was not written. The court's decision to accept the motion without the formality of a written request was within the case management authority of the court. Krevis v. Bridgeport, 262 Conn. 813, 818 (2003). In Pekera v. Purpora, 80 Conn.App. 685 (2003), affirmed 273 Conn. 348 (2005), cited by the defendant, the trial court in a medical malpractice case had granted a defense motion for summary judgment as to liability. In their opposition to that motion, the plaintiffs had requested that, if their arguments in opposition to summary judgment were not persuasive, then they would request the court's permission to amend their complaint. The trial court granted the motion for summary judgment and without taking any action on the suggestion of a possible amendment to the complaint. The Appellate Court affirmed. The Supreme Court also affirmed, but without reaching the issue of the trial court's discretion. The Supreme Court, although noting the absence of a written request to amend the complaint, 273 Conn. at 355, based its decision on the contingent, hypothetical nature of the plaintiffs' suggestion of an unspecified amendment if the trial court was otherwise inclined to grant summary judgment against them:
Accordingly, this is not a case in which the plaintiffs expressed a clear intention to amend their complaint but neglected to follow the proper procedure, Rather, the record reveals that the plaintiffs did not (emphasis in original) wish to amend their complaint when the defendant's summary judgment motion was filed because an amendment might have weakened their position that the existing complaint encompassed a claim of failure to inform. The plaintiff's reference to a possible future amendment in their reply memorandum thus cannot be considered a request to amend under the applicable rules of practice. In the absence of a properly filed request to amend, the trial court was not called upon to exercise its discretion, and it correctly declined, as a matter of law, to consider the purported amendment. 273 Conn. at 356-57.
In a footnote within above-quoted language, the court said "We also note that the plaintiffs' complaint was not amended by order of the judicial authority, or by written consent of the adverse party, the only other ways in which it could have been amended under Practice Book § 10-60. " (Emphasis added.) Id. n. 10. The teaching of Pekera v. Purpora, which is highly fact-specific, is that a non-contingent present request to amend a complaint in a specific way directed to the judicial authority, even though made orally, may be considered and addressed within the discretion of the trial court.
The court also concludes that the plaintiff's oral motion to amend was not untimely, and this court was in error in denying the motion as made "too late." A trial court has wide discretion in granting or denying amendments to pleadings before, during, or even after trial Saphir v. Neustadt, 177 Conn. 191, 206 (1970); Wright v. Coe Anderson, CT Page 21349 156 Conn. 145, 155-56 (1968). Falby v. Zarembski, supra, 221 Conn. at 24 (" . . . we conclude that the trial court abused its discretion when it denied plaintiff's motion to amend their complaint [oral motion made during jury selection] because there was no sound reason for denying such permission."). In a civil action tried to a jury judgment on a verdict is entered upon the expiration of the ten-day period for filing post-trial motions such as a motion to set aside the verdict or a motion for a new trial. Practice Book § 17-2. But when, as here, a motion to set aside the verdict has been filed within that period, " . . . judgment shall be entered at the time of and in accordance with the decision on such motions." Id. The trial therefore did not end with the granting of the motion for directed verdict, and the motion to amend should have been considered on its merits in accordance with the court's discretionary powers. Citing Pekera v. Purpora, supra, the defendant suggests that the Supreme Court affirmed, in effect, the notion that once a dispositive ruling has been issued, it is too late to seek to amend the complaint so as to "undo" the just issued ruling. As said by the Pekera trial court in granting summary judgment: " . . . there is no complaint left to amend." Pekera v. Purpora, Superior Court, Judicial District of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X02CV98-0161845S (September 24, 2002, Schuman, J.). Although the Supreme Court agreed with that statement and relied upon it (and also on the lack on an actual non-contingent request to amend) in affirming, it is significant that the dispostive motion at issue in Pekera was a motion for summary judgment. The granting of a motion for summary judgment is the entry of final judgment "forthwith." Practice Book § 17-49. The case is over. As this court has now been convinced, the granting of a motion for directed verdict does not have the same effect: trial does not terminate at that point, and there is still a complaint capable of being amended. Defendant also relies on Pekera for the proposition that the motion to amend in this case was untimely in the sense that it could have and should have been made before the court had ruled on the motion for directed verdict because the plaintiff secured an advantage by not requesting an amendment earlier. The Supreme Court in Pekera, noted that the plaintiffs in that case, although suggesting a hypothetical amendment, did not actually wish to file an amendment when the summary judgment motion was filed against them because an amendment at that point " . . . might have weakened their position [in opposition to the motion for summary judgment]." 273 Conn. at 356. That is not the case here. If the motion to amend the complaint had been made prior to the court's ruling on the motion for directed verdict, the plaintiff's argument to avoid a directed verdict under Gaudino v. East Hartford, supra, would have been strengthened, not weakened, because the amendment, if allowed, would have opened the door to arguments that plaintiffs had given sufficient notice of their reliance on § 52-557n by means other than amending the complaint and they might have thereby come under the more liberal rule of Spears v. Garcia, supra. In other words, the plaintiffs got no advantage out of the timing of their motion to amend, and there is no concept of waiver or estoppel of the right to amend if that concept may be implied from Pekera. In any event, the court does not read Pekera as abrogating the court's discretion to consider a request to amend the pleadings during, or even after, a trial. In fact the Pekera court in dictum suggests otherwise:
The plaintiffs could have filed a motion to open the judgment for the purpose of restoring the case to the docket and amending the complaint after the court had granted the defendant's motion [for summary judgment] and rendered judgment thereon. 273 Conn. at 358.
The issue then becomes, was the denial of the motion to amend an abuse of discretion, or, more specifically since the court ruled solely on the basis of timeliness, should the court now, in the exercise of its discretion, allow the amendment? The discretionary criteria to be considered by the court in allowing or denying a motion to amend are: The length of the delay; fairness to the opposing parties; negligence, if any, of the party offering the amendment. Matthieson v. Vanech, 266 Conn. 822, 849 (2003). Additional factors which may be considered are prejudice or lack thereof to the adverse party and whether or not a requested continuance would eliminate any prejudice, and whether or not the requested amendment injects any new factual issues into the case as opposed to raising a purely legal issue. Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 584 (2003).
This is not actually an abuse of discretion determination. The court denied the request to amend only on the legal issue of timeliness. Discretionary factors were argued, but not reached. Since the court has now been persuaded that the motion was not untimely, this in an initial exercise of discretion on the plaintiff's request to amend.
The court does not agree with defendant's suggestion that the failure to move for an amendment until after the motion for directed verdict had been granted was a knowing, calculated strategy of the plaintiff which should not now be condoned or rewarded. There was, as plaintiffs now concedes, no case under § 7-465. The failure to name the individual city employee as a defendant was fatal to that claim. There was nothing to be gained from not seeking an amendment earlier, and there was substantial risk in waiting as long as the plaintiffs did before seeking the amendment. The court finds instead that plaintiff's counsel were negligent in not requesting the amendment prior to the granting of a directed verdict. Given the clear mandate of Gaudino, decided some nine months before trial commenced, the need for an amendment should have become apparent during trial preparation or at the outset of the trial when the court inquired as to the nature of the governmental immunity special defense and a lawyer for the plaintiff, in response, made specific reference to § 52-557n. At the very least the need for the amendment should have been realized after the motion for directed verdict was made and argued on November 18, 2005, and on November 21, 2005 when this issue came up during the charge conference in conjunction with how the court would charge under § 7-465, whether or not the court would charge under § 52-557n, and how the court would charge on the special defenses of governmental immunity and failure to state a cause of action. The resolution of the amendment issue therefore depends on whether or not the other relevant factors outweigh that negligence. After considerable deliberation and reflection, the court concludes that they do, and that the amendment should have been granted. First, the amendment would not have caused any substantial delay in the trial. Counsel for the defendant City during oral argument on the motion to amend suggested that defending this case as claim under 52-557n instead of § 7-465 might or might not cause a need for a short delay: "We haven't had an opportunity to consider whether we would file different defenses or any defenses. It might well be that given a few days to think about it, and so forth, we'd conclude nah, there's really not much else we would do." (Tr. 11/22/06, p. 15.) Counsel later suggested a possible need for a one week continuance (Tr., p. 16) but failed to give any specific reason why that would be necessary. As it turned out there was no occasion to request such a continuance because the court granted the directed verdict and denied the motion to amend, but the statement of counsel is confirmation that no significant delay would have been necessary if the amendment had been allowed.
Second, as to fairness to the parties, the court finds that the denial of the amendment caused more unfairness and prejudice to the plaintiff than the granting of the amendment would have caused to the defendant. Obviously the denial turned a plaintiff claiming serious injuries out of court without a decision on the merits of his claim. Permitting the amendment would have caused the defendant only to have to reframe its request to charge and final arguments to the jury in terms of one statute rather than another. The key liability issues would be the same under either statute: the alleged negligence or statutory negligence of Officer Grabinski (admittedly acting within the scope of his duties on behalf of the City of Stamford); the alleged contributory negligence of the plaintiff Mr. Burton, and the cause of the plaintiff's injuries. In one respect, it seems, the defendant would be at an advantage under § 52-557n as opposed to § 7-465 because, as counsel conceded, there is authority that certain caselaw exceptions to the doctrine of governmental immunity of municipal employees do not apply to the municipality itself as a defendant. (Transcript, 11/22/06, pp. 13-14.) The amendment, then, would have caused no prejudice to the defendant since the requested amendment injects no new factual issues into the case as opposed to raising a purely legal issue. Dow Condon Inc. v. Brookfield Development Corp., supra. The court holds that these factors are entitled to more weight than any negligence of plaintiff's counsel in the timing of their motion to amend, and plaintiff Burton's oral motion to amend the complaint therefore should have been allowed.
Counsel cited Pane v. Danbury, 267 Conn. 669, 677-78, n. 9 which holds that the exception to immunity "where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm" applies only to a the defense of qualified immunity of a municipal employee as distinct from the governmental immunity of the municipality itself. See, also, Spears v. Garcia, supra, 263 Conn. at 37 ("This defense [qualified immunity] is intended to protect the employee, not the municipality . . .").
B. Motion to Set Aside Directed Verdict
The issue then presented is whether or not the directed verdict should now be set aside. If the amendment to the complaint had been allowed, as it should have been, Gaudino v. East Hartford would no longer govern because no specific statute would be cited. Under the rule of Spears v. Garcia, supra, the plaintiff, no longer bound by its citation of § 7-465 (or any other statute) in its complaint, would be free to proceed under § 52-557n so long as it had sufficiently apprised the defendant that it was proceeding under that statute. Plaintiff had given that sufficient notice in four ways: (1) by arguing in opposition to the motion for directed verdict that Judge Radcliffe's earlier ruling, based on § 52-557n, had made that statute "the law of the case"; (2) counsel's reference to § 52-557n at the outset of the trial when the court inquired as to the nature of the governmental immunity special defense; (3) the plaintiff's express reliance on § 52-557n in its November 21 memorandum of law; and (4) plaintiff's written request to charge on § 52-557n submitted at the charge conference of November 21. Since reference to § 52-557n in a plaintiff's memorandum of law in opposition to summary judgment was alone found to be sufficient notice in Spears v. Garcia, supra, the plaintiff herein had clearly met the requirement of sufficiently apprising the defendant of its intent to rely on § 52-557n. On the authority of Spears v. Garcia, supra, the directed verdict must be set aside, which is also in keeping of the strong policy that cases should be adjudicated on the merits whenever possible. Snow v. Calise, 174 Conn. 567, 574 (1978); Peabody N.E., Inc., v. Department of Transportation, 250 Conn. 105, 127 (1999).
The Court does not agree with plaintiff's argument that Judge Radcliffe's ruling denying a motion to strike a defense to a (now withdrawn) counterclaim on the ground of § 52-557n serves the function of an amendment to plaintiff's complaint as if it alleged that statute, but the fact that counsel made that argument in opposition to the motion for directed verdict did put the City on notice that plaintiff was then and there relying on § 52-557n.
See footnote 3, supra.
C. Request for a New Trial
In his Motion to Set aside Verdict the plaintiff requests the relief that the directed verdict be set aside and the case be reassigned for trial. The defendant argues that the court should first decide part one of its motion for directed verdict made at the end of plaintiff's case (insufficiency of evidence), as to which the court had reserved decision pursuant to Practice Book § 16-37. The defendant's request is based on the reason that the policy behind reserving decision on a motion for directed verdict (so that there will be a jury verdict to be reinstated if the directed verdict is set aside on appeal) is inapplicable here, and for reasons of preserving the record on appeal and judicial economy. Although those arguments may be facially appealing, there is nothing pending before this court at this stage of the proceedings which raises the issue of the sufficiency of the plaintiff's evidence or permits the entry of a judgment for the defendant on the ground of insufficiency of the plaintiff's evidence.
§ 16-37 provides:
Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside, and have judgment rendered in accordance with his or her motion for a directed verdict; or, if a verdict was not returned such party may move for judgment in accordance with his or her motion for a directed verdict within the aforesaid time after the jury have been discharged from consideration of the case. If a verdict was returned the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judicial authority may direct the entry of judgmnent as if the directed verdict had been directed or may order a new trial. (Emphasis added.)
The time limit of § 16-35 for filing a motion to set a verdict aside is ten days after the verdict is accepted. In this case, since the jury returned no verdict on the evidence, but only returned a verdict as directed by the court on the legal ground of governmental immunity based on how the case was pleaded (now set aside), it was incumbent on the defendant, if it also wanted a ruling on its claim of insufficiency of the evidence, to file a timely § 16-37 post-trial motion for judgment in accordance with that part of its motion for directed verdict. No such motion was filed. The court therefore has no procedural vehicle to rule on the reserved part of the motion for directed verdict at this point. The defendant's opposition to the motion to reopen the directed verdict entered on other grounds does not raise the issue of insufficiency of the evidence. "A motion for directed verdict appears to be a virtually absolute prerequisite to a § 16-37 motion." (Emphasis added.) Horton Knox, Connecticut Practice Series, Superior Court Civil Rules (2006 ed.), § 16-37 Authors' Comments at 710 (citations omitted.) It therefore follows that opposition to a motion to reopen a directed verdict by itself is only a prequisite to and not a replacement for a § 16-37 motion for judgment in favor of the party opposing the reopening. This is implicit in the wording of § 16-37 itself which equates the reservation of decision on a motion for directed verdict with a denial of that motion. "Whenever a motion for a directed verdict made at any time after the close of the plaintiff's case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." (Emphasis added.) At this time, then, part one of defendant's motion for directed verdict (insufficiency of evidence) is in exactly the same posture as if it had been denied. The "later determination" is accomplished by a motion for judgment under § 16-37. Absent such a motion, and considering only the plaintiff's motion to set aside verdict, which is the only motion pending before the court, a new trial is the only possible result:
The trial court has the same power to set aside a verdict that it has directed as it has to set aside a verdict actually arrived at by the jury. Therefore the party against whom a verdict is directed should, after the verdict has been directed, move to set the verdict aside. If this motion is granted, a new trial will result . . .
If the losing party himself had filed a motion for directed verdict (obviously denied) he could treat his case as one where a motion for a directed verdict had been improperly denied. This would permit resort to a post-verdict motion for judgment." (Emphasis added.) Stephenson's Connecticut Civil Procedure, Third Edition, Vol. 2, p. 277, § 163i.CT Page 21355
Order
For the foregoing reasons the plaintiffs' Motion to Set Aside Verdict is granted and a new trial is ordered.CT Page 21356