Opinion
CV176010332S
06-05-2019
Taylor EQUI v. SILVER CITY PROPERTIES et al.
UNPUBLISHED OPINION
Nada K. Sizemore, Judge
GENERAL PROCEDURAL BACKGROUND
This decision arises from the above post-trial motions filed by the Plaintiff Taylor Equi and Defendants Silver City Properties LLC and Rosario Gulino, after the jury entered a verdict in Plaintiff’s favor on May 2, 2019, after a four-day jury trial in Meriden Superior Court against the Defendants Silver City Properties LLC and Rosario Gulino.
After four (4) days of testimony on April 24, 25 and 26 and May 1, 2019 and three (3) days of jury selection on April 9, 10 and 11, 2019, the jury entered a verdict in her favor and awarded her the sum of $60,015.17, awarding both economic damages of $20,015.17 and total non-economic damages of $40,000. The jury also found her to be 25% comparatively negligent and thus reduced the total final award to the sum of $45,011.38.
Pursuant to Connecticut General Statutes Section 52-228b and Connecticut Practice Book Section 16-35, Plaintiff now moves to set aside that verdict arguing that the trial court made several prejudicial evidentiary errors and errors in law, thus necessitating a new trial be ordered.
She also moves for a Motion for New Trial (#178) under Conn. General Statutes Section 52-570 on the same grounds as raised in the Motion to Set Aside the Verdict (#175).
Specifically, she argues that the court made the following prejudicial evidentiary errors: (1) preclusion of expert witness, Fire Marshal John Yacovino; (2) preclusion of any evidence of subsequent remedial repairs or subsequent conduct of the Defendants after the date of the slip and fall on February 10, 2019; (3) misapplication of the ongoing storm jury charge to negligence per se; (4) failure to defer to administrative agency construction of the relevant statute and fire code provisions cited during trial; and (5) failure to allow testimony from fact witness David Dionzio to testify to post-accident conduct after the date of the alleged slip and fall incident on February 10, 2017.
She also claims that the court committed two errors in law: (1) by failing to instruct the jury adequately on the content of the State Fire Code Section 14.4.1; and (2) by granting the directed verdict for the Defendants on the Third and Fourth Counts based on the theory of recklessness.
The Defendants have objected to both motions by Objections dated May 28, 2019 (#182) on the basis that Plaintiff has failed to offer any basis for the relief requested. They also argue even if the court committed any errors, those errors did not cause Plaintiff any harm as the jury rendered a verdict in her favor on both liability and damages.
LEGAL DISCUSSION
When considering a Motion to Set Aside a Verdict, the trial courts are vested with the utmost discretion. Allison v. Manetta, 284 Conn. 389, 405, 933 A.2d 1197 (2007); Elliott v. Sears Roebuck & Co., 30 Conn.App. 664, 675 n.11, 621 A.2d 1371 (1993), aff’d on other grounds, 229 Conn. 500, 642 A.2d 709 (1994). The trial court must view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999). The court’s determination is whether the evidence reasonably supports the verdict. Id. The trial court should not sit as a seventh juror, but should decide whether viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. This same standard of review applies when the trial court is asked to review claimed prejudicial evidentiary errors or errors in law.
(a) Preclusion of Fire Marshal John Yacovino Testimony
The trial court had precluded the testimony of John Yacovino in its pre-trial rulings via Motions in Limine argued to the court before the start of evidence. Specifically, the court granted the Defendant’s Motion in Limine dated April 17, 2019 (#155) after oral arguments and briefing by the parties.
The court granted the Motion in Limine on the basis of Rule 7-3 of the Connecticut Code of Evidence, finding that the anticipated Fire Marshal testimony was not necessary to this case, as it would have been to an ultimate issue of this case; and finding that whether ice and snow were removed from the subject stairs in question were not issues requiring any expert assistance for the trier of fact.
The Plaintiff Equi filed a Motion to Reargue/Reconsider by Motion dated April 23, 2019 (Docket Entry #162), raising the same issue about Yacovino’s preclusion. The court heard oral argument again on the same issue and reviewed enhanced briefing by the parties on the same issues.
After considering the arguments again and the supporting briefs and relevant case law, the court issued a written decision on April 25, 2019 reaffirming the preclusion of this expert testimony. In its decision dated April 25, 2019, the trial court issued a written ruling further explaining the basis for excluding the Fire Marshall testimony. See Docket Entry #162.10.
Now, as a third bite at the same issue, the Plaintiff Equi raises the same issue again claiming the court was mistaken in this preclusion. Plaintiff claims that Mr. Yacovino would have helped clarify the statutory negligence claims in this case arising from Conn. Gen. Statutes Section 47a-7 and Connecticut Fire State Fire Prevention Code Section 14.4.1.
As the court indicated before in its pretrial rulings, the claimed statutory section from Conn. General Statutes Section 47a-7 says, in relevant part, that a landlord shall "... keep common areas of the premises in a clean and safe condition." The court charged on that exact language in its jury charge. Similarly, Section 14.4.1 of the State Fire Prevention Code states that: "Means of egress and primary means of escape shall be continuously free of all obstruction or impediments to full instant use in the care of fire or emergency." Again the court charged on that exact code language as well. During its deliberations, the jury did not present with any questions relative to the statute or code in question. And, the Plaintiff at no time asked for any further instruction on these two negligence per se allegations, and she did not object after the court issued its instructions to the jury.
After reconsideration of this issue again, this court finds that Mr. Yacovino’s views and interpretation of both of these statutory or code sections were not necessary to help the jury understand the issues in this case. This case was about whether the landlord had acted reasonably by not removing the ice and snow from the subject stairs after the storm in question. Mr. Yacovino’s claimed "special knowledge" concerning how individuals react to an emergency and his legal interpretation of these clear, unambiguous statutory and code provisions were not admissible or necessary evidence to this case. The jury entered a verdict for the Plaintiff, and since no interrogatories were requested or submitted to the jury; the court can reasonably infer that the jury, in its general verdict in favor of the Plaintiff, considered the applicability of both the statute and fire code to the stairs and situation in question.
This trial court therefore concludes that it does not find any prejudicial evidentiary error in this ruling. The court readopts its written decision dated April 25, 2019 on this issue and finds no mistake or error to reconsider that ruling.
(b) Subsequent Remedial Measure
The Plaintiff also urges that the court was mistaken in precluding any evidence of subsequent remedial measures after the date of the accident on February 10, 2019. Specifically, the Plaintiff repeatedly attempted to introduce evidence that the stairs were not cleaned of ice and snow until three days after the date of her alleged incident. She argues that this evidence was a "failure to remedy"- not evidence of a remedial measure but evidence of reckless intent. She also argues it was evidence material to the credibility of the Defendant Gulino and/or feasibility of such measures.
This issue was also raised repeatedly by the Plaintiff at trial both in pretrial Motions in Limine and during the testimony of varying witnesses including the Plaintiff Equi, witness Mr. Dionzio and Defendant Gulino. Having reviewed the briefs and case law again, this court is unpersuaded that any mistake occurred.
In deciding this issue, the court was and is guided by Rule 4-7(a) of the Connecticut Code of Evidence. That section in relevant part states: "... evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event." The rule recognizes certain limited exceptions to the rule where such evidence becomes admissible to prove controverted issues of ownership, control or feasibility of precautionary measures.
The Connecticut courts have long recognized the settled rules described above. See Duncan v. Mill Management, 308 Conn. 1, 17-18, 60 A.3d 222 (2013); Rokus v. City of Bridgeport, 191 Conn. 62, 65, 463 A.2d 252 (1983); Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936); Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Gustafson v. City of Meriden, 103 Conn. 598, 602, 131 A. 437 (1925); Donovan v. Connecticut Co., 84 Conn. 531, 538, 80 A. 779 (1911). And just recently, the Connecticut Appellate Court reaffirmed Connecticut’s strong policy as to why such evidence is inadmissible and of minor probative value in premises liability cases. See Fisk v. Redding, A.3d. AC Docket No. 40216 (May 17, 2019).
In the case at bar, there was no issue as to ownership or control of the property in question as the Defendants admitted such. And there was no evidence by the defendant denying the feasibility of such measures. The Plaintiff could not and did not make a showing that any of the exceptions described in Rule 4-7 applied. The relevant evidence, and the evidence that the jury considered was what the defendant knew or should have known leading up to the incident.
(c) Misapplication of Ongoing Storm Doctrine to Negligence Per Se
The Plaintiff argues that the court applied the ongoing storm doctrine notwithstanding the text of the Connecticut State Fire Prevention Code Section 14.4.1. Although the brief remains confusing as to what issue the Plaintiff is raising- at oral argument on May 31, 2019, Plaintiff’s counsel argued that this was an error in conjunction with the court’s other evidentiary rulings related to Mr. Yacovino’s testimony and the subsequent remedial measure rulings and recklessness rulings.
This court finds this argument confusing and without merit. The Defendants had raised the ongoing storm doctrine as a defense in their pleadings and at trial, a weather expert and fact witnesses offered testimony on weather conditions on and before the date of the incident. A major winter storm "Nikko" had occurred in the State of Connecticut just prior to the date of the incident, and the State of Connecticut was officially closed by the Governor on February 9, 2010. The Plaintiff’s incident occurred in the early evening hours on February 10, 2010- just after the storm had ended. With such evidence presented at trial, this court finds the ongoing storm jury charge appropriate.
Also, the court charged the jury on the issues of negligence per se and cited both the statute and fire code section cited by the Plaintiff in her complaint- verbatim as requested by the parties. With no objections or exceptions filed by the Plaintiff to the charge, this court cannot find this was error to warrant a new trial. The court therefore finds no potential error or mistake in law as argued by the Plaintiff regarding these issues.
(d) Deference to Administrative Agency Construction of Statute
The Plaintiff argues that the court erred in again not allowing the testimony of Fire Marshall John Yacovino as to his interpretation of Conn. General Statutes Section 47a-7 and Connecticut State Fire Prevention Code 14.4.1.
First, for all the reasons already provided as to the total preclusion of the Fire Marshall testimony, the court readopts its reasoning and rationale to this claim as stated under subsection (c) of this decision.
Second, it should be noted that Mr. Yacovino could hardly be construed as an expert of how to interpret a section of the general statutes arising from the landlord/tenant law in Connecticut under C.G.S. Section 47a-7. Therefore, he would lack any requisite expertise in this area, even if he were allowed to testify.
Last, since this court found the language of Section 14.4.1 pretty clear and straightforward, there was no need for assistance from Mr. Yacovino as to the language used in that section.
(e) David Dionzio
The Plaintiff Equi further argues that the preclusion of "part" of the testimony of fact witness David Dionzio was error as well. The court disagrees. Mr. Dionzio was subpoenaed to the trial by the Plaintiff but he failed to honor such subpoena. He was employed by the Defendant Silver City Properties LLC at the time of the incident, but at time of trial he was a former employee. Because of Mr. Dionzio’s absence, the parties agreed to read in relevant portions of his deposition transcript into the record, rather than ask the court to issue a capias for his presence at trial.
His deposition testimony was read into the record, except for those very limited portions, whereby he was testifying to what transpired after the date of Plaintiff Equi’s accident on February 10, 2017. Again this was testimony aimed at getting subsequent remedial measures or subsequent conduct after the date of loss into the trial- after the court ruled such inadmissible.
Therefore, for all the reasons already described under Section (c) above, the court finds no error in disallowing that portion of Mr. Dionzio’s testimony.
(f) Instructional- Challenge to Jury Charge on Fire Code Section 14.4.1
The Plaintiff Equi also argues that the court committed error in law as to its instruction to the jury on the Fire Code Section 14.4.1. It is notable that this is the first time that the Plaintiff has objected to any part of the jury charge, and as such, this argument is procedurally defective. Connecticut Practice Book Section 16-20 requires that if a party wishes to challenge any part of the court’s charge to the jury that party must submit a written request to charge or take exception to the charge immediately after it is given. In the case at bar, no exceptions were made after the jury charge was delivered on May 1, 2019.
And before delivering the jury charge, the court provided counsel with many opportunities to contest any portions of the proposed charge beginning at the first day of jury selection on April 19, 2019 through to the actual charge delivery on May 1, 2019. The court provided Preliminary Request to Charge to both counsel on April 19, 2019. And, the court held a charge conference on April 22, 2019 before evidence began with a Second Preliminary Request to Charge dated April 22, 2019. And just prior to delivery of the charge on May 1, 2019, the court once again invited the parties for any and all additions, deletions, or exceptions to the charge. None were noted by the Plaintiff.
In fact, Plaintiff asked that the court specifically add the Fire Code section under the Negligence Per Se section of the jury charge, and the court did such.
Therefore, this argument is without any merit on procedural or substantive grounds for this court to conclude error and declare a new trial or set aside the verdict.
(g) Recklessness- Motion for Directed Verdict
The Plaintiff Equi, last, claims that the court committed error in granting a directed verdict for the Defendants on the Third and Fourth Counts in which the Plaintiff asserted recklessness claims against the Defendants. She claims such a mistake of law should form the basis to set aside the verdict.
The court heard extensive argument on the legal and factual sufficiency of the recklessness claims both at the close of the Plaintiff’s case when the Defendants launched the Motion for Directed Verdict orally on the recklessness counts. The court reserved decision on the Motion for Directed Verdict without prejudice, and allowed the defense to present its evidence and the Plaintiff rebuttal evidence, before it ruled on this motion. Once the defense rested, and the Plaintiff provided no further evidence, the court again took oral argument and briefing from the parties on the recklessness counts.
After review of the respective briefs and considering the evidence presented at trial, the court by written five (5) page Memorandum of Decision dated May 1, 2019 granted the Defendants Motion for Directed Verdict on all recklessness claims. See Docket Entry #174.
The Plaintiff now disagrees with the court’s conclusions and argues that this case presented with sufficient facts to support recklessness claims, so that this court should have submitted such to the jury for determination.
The court disagrees and notes that the Plaintiff ignores the large body of reported trial court decisions in Connecticut whereby recklessness claims against landowners for premises liability theories have not been sustained. And the evidence in this case does not support the claim that the Defendants intentionally disregarded or consciously chose to keeping the subject stairs on his premises free from ice and snow. The court therefore concluded that there was no factual or legal support for any recklessness theory to be submitted for jury consideration.
At best, the testimony at trial showed some potential confusion between Defendant Gulino and Mr. Dionzio as to whether Mr. Dionzio needed to wait for specific instruction before beginning snow removal on the subject stairs.
The testimony of the Defendant Gulino was that he was leaving for Aruba on February 8, 2017 and that he was aware snow was coming to Connecticut. He did not return from Aruba until February 13, 2017 and the stairs were not cleaned until he returned.
Defendant Gulino also testified that he had two employees who did the snow removal duties on sidewalks, stairs and common areas; and he assumed they would perform those duties in his absence. He also testified that he assumed that they would clean the subject staircase where the Plaintiff fell while he was gone without specific instructions from him. Even though Plaintiff wishes to construe such as "conscious choice of a course"- this court does not agree.
The evidence also showed that the Defendant Gulino was aware that the front entrance to the Plaintiff Equi’s apartment abutted a public sidewalk with interior stairs, and that the city of Meriden cleaned all the public sidewalks including the front entry to her apartment. Mr. Christian Bourdon of the City of Meriden gave specific detailed testimony on how the City handled that storm in question including cleaning the sidewalk areas in front of the Plaintiff’s apartment. Mr. Bourdon testified that the sidewalk was clean on February 10, 2017 based on his personal observations. Plaintiff Equi chose not to use the front clean sidewalk to get to interior stairs to her fourth floor apartment.
Therefore, in this court’s view, the evidence presented by the Plaintiff did not meet the requisite burden to submit the issues to a jury for determination on recklessness.
Under these circumstances, the court stands by its earlier decision in the granting of the directed verdicts on the recklessness claims. The court adopts its earlier written decision in total as part of this decision denying the post-trial motions.
CONCLUSION
For all the foregoing reasons discussed above, this court DENIES the Motion to Set Aside the Verdict and Order and New Trial and DENIES the Motion for New Trial. The court also SUSTAINS the Defendants’ Objections to the Motion for New Trial.