Opinion
No. FST CV07-5004458S
October 6, 2011
I. Procedural/Factual Background
This case arises out of a fire that occurred on October 6, 2006 at the premises located at 1076 East Putnam Avenue in the Riverside section of Greenwich, Connecticut. The plaintiffs alleged that the defendant negligently caused the fire while performing certain work at the premises including the disconnection/disarming of a fire suppression system and the removal of a ventilation hood, and as a result plaintiffs suffered damages to their real property and personal property and miscellaneous damages arising out of the loss of use of the building. The defendant Interstate Fire Safety Equipment Co. admitted in its answer to the amended complaint that it, through its employee, was negligent in one of the ways alleged by the plaintiff in using a method to remove certain duct work associated with the hood from the premises which exposed areas to damages from a plasma cutter since the duct blocked the user's view of where the sparks went. The defendant denied, however, that its negligence was a proximate cause of the damages claimed by the plaintiffs, and denied the plaintiffs' allegations of damages. After hearing the evidence presented by both parties the jury rendered a plaintiffs' verdict on the negligence count on March 16, 2011 awarding the plaintiffs total damages of $1,010,228.11, consisting of $115,420.79 awarded to the plaintiffs Julie Chen and Warren Hutchison; $109,155.00 awarded to the plaintiffs Hsiao-Wen Chen and S.L. Chen; and $785,652.32 (net of fire insurance proceeds) awarded to the owner of the premises plaintiff JC Corporation, broken down as (1) construction costs and expenses of $257,676.12, (2) pre-construction costs and expenses (such as planning, inspection, and permitting costs of 130,014.00, (3) lost rent of $397,662.20, and (4) personal property damage of $300.00.
There was also a Second Count alleging a a per-se violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Con. Gen. Stat. § 42-110b, et seq., which resulted in a defendant's verdict.
The plaintiff JC Corporations' evidence of construction costs (Spreadsheet, P1. Ex 13) shows total costs of $762,676.12. It appears that the jury accepted that number and then, as instructed, deducted the fire insurance proceeds of $505,000 which plaintiff Julie Chen testified that JC Corporation had received, (3/9/11 Tr. 32) resulting in the $257,676.12 award for construction costs.
Now before the court is the defendant's motion pursuant to Practice Book § 16-35 and Conn. Gen. Stat. § 52-228b to set aside only the awards made to plaintiff JC Corporation for construction costs and expenses in the amount of $257,676.12 and pre-construction costs and expenses in the amount of $130,014.00 on the ground that there was no evidence to support the award of same. Specifically defendant argues that there was no evidence causally relating plaintiff's claimed expenses for construction and for pre-construction costs to the defendant's admitted negligence in causing the fire, since there was no evidence as to why plaintiffs needed to demolish the fire-damaged building and construct an entire new building on a new foundation. Plaintiff opposes the motion, claiming that there is sufficient evidence from which the jury could reasonably have concluded that for several reasons it was reasonable for the plaintiff JC Corporation to rebuild the structure on a new foundation-because of the fire damage.
II. Discussion
Practice Book § 16-35 permits, among other motions, "a motion to set aside the verdict" to be filed within ten days after the verdict is accepted, stating the specific grounds upon which counsel relies. Conn. Gen. Stat. § 52-228b provides:
The docket sheet confirms that the verdict was accepted on March 16, 2011 and that this motion was filed on March 28, 2011, twelve days later. The plaintiff has not raised the issue of late filing and neither party has argued or briefed the timeliness of the motion. The court intends to deny the motion on the merits, but it does appear as an alternate ground of denial that the motion is not timely.
No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.
"A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, when it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Citation and internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn.App. 574, 582 (2001). Moreover, "the evidence is viewed in a light most favorable to the prevailing party and to sustaining the verdict.," Ipacs v. Cranford, 65 Conn.App. 441, 443 (2001); and "the verdict should be disturbed only by considerations of the most pervasive character, as where the verdict shocks the sense of justice . . . Only under the most compelling circumstances may the court set aside the verdict because to do so interferes with the litigant's constitutional right in appropriate cases to have the issues of fact decided by a jury." (Citation and internal quotation marks omitted.) Hunte v. Amica Mutual Insurance Co., 68 Conn.App. 534, 541 (2002). "[I]f there is a reasonable basis in the evidence for the jury's verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will." Jacobs v. Goodspeed, 180 Conn. 415, 419 (1980), "The 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, supports the jury's verdict." (Citations and internal quotation marks omitted.) Johnson v. Chaves, 78 Conn.App. 342, 346-47, cert.denied, 266 Conn. 911 (2003).
With these principles firmly in mind, and construing the evidence most favorably to support the jury's verdict, the court concludes that there was some evidence from which this jury could reasonably conclude that the demolition and reconstruction of plaintiff JC Corporation's fire-damaged building was proximately caused by the admitted negligence of the defendant Interstate Fire Safety Company in causing the fire. Although the plaintiff presented no admissible expert evidence on this point, Julie Chen, vice-president, director, and 25% owner of plaintiff JC Corporation, testified that she had consulted on this issue with the company's insurance company, its attorney, a couple of contractors, an architect, and others as to whether or not the building could be rebuilt within 120 days [JC Corporation's timeline in a tenant lease to return the premises to habitable condition] and said: "Well, after consulting with these various people it was clear our option was to knock it down and build a new building." (3/8/11 Tr. 160.) And after consultation with a structural engineer and her architect, Tim Peck, she determined that the foundation of the damaged building "had to be replaced" (3/8/11 Tr. 168). Ms. Chen further testified that in the summer of 2003 JC Corporation put out a solicitation for bids to rebuild, rather than repair, the building. When asked why the solicitation was for bids to rebuild rather than repair the building, she testified:
Because it was our — well, first of all, because we didn't think it was repairable based on everything that had happened up to that point, and we knew we had to shift the foundation, so you really can't repair the existing building if you have to move the foundation. (3/8/11 Tr. 176.)
In addition to Ms. Chen's testimony the jury had before it multiple photographs of the fire damage to the plaintiff's building (Pl. Ex 9 — packet of photos) showing the extent of the fire damage to the exterior and the interior of the building, which can also be part of the evidence constituting a rational basis for its decision to award the full amount of reconstruction costs. See, Wendt v. Naber, Superior Court, Judicial District of Fairfield at Bridgeport,. Docket No. CV08-6001852 (March 25, 2011, Levin, J.), 2011 Ct.Sup. 7975 (jury's review of more than twenty photographs of plaintiff's dog bite injuries considered in upholding verdict claimed to be inadequate).
Based on this evidence the court cannot say that the jury's verdict to award net construction costs of $257,676.12 lacked a reasonable basis in the evidence. Granted, the case for causation would have been stronger if there were admissible expert opinion testimony on that point, but this was an issue that was capable of decision by the jury without expert testimony. Expert testimony "is required only when the question involved goes beyond the field of ordinary knowledge and experience of the trier of fact." State v. Padua, 273 Conn. 138, 149-51 (2005) (Upholding jury determination without expert testimony that oral injection of marijuana would be likely to injure the health of a child). See, also, Cima v. Sciaretta, Superior Court, Judicial District of Danbury, Docket No. UWY CV0-096001772 (September 14, 2011, Ozalis, J,.), 2011 Ct.Sup. 19498 (Jury may determine permanency of aggravated injury without a permanency rating of a physician or other expert opinion if some evidence of permanency has been introduced at trial). See, also, C. Tait, Handbook of Connecticut Evidence, (3d Ed., 2001) § 7.5.4, pp. 517-520 and cases cited, including Latham Associates v. William Raveis Real Estate, Inc., 218 Conn. 297, 301-303 (1991), upholding a recovery for breach of warranty for a dysfunctional computer system without expert testimony as to the cause of the dysfunction.
Similarly, the jury's award of $130,014.00 to plaintiff JC Corporation for pre-construction costs is validly based on the evidence. The itemization and breakdown is evidenced by the spreadsheet (Pl. Ex, 11). Some of the items represent the cost of emergency measures taken immediately or shortly after the fire to preserve the property and the contents inside. In view of the court's conclusion that the costs of reconstruction of the building were properly awarded, the other preconstruction costs, such as fire investigations, engineers, surveyors, architects and architectural plans, fencing, permits, asbestos remediation, etc. were validly incurred as part of the reconstruction process caused by the fire, and are reasonably supported by the evidence as resulting from the fire.
III. Conclusion
For the foregoing reasons the Defendant's Motion to Set Aside Verdict as to Construction Costs and Expenses and Pre-Construction Costs and Expenses is denied.