Opinion
No. CV 05-4015138-S
October 11, 2007
Introduction
The complaint in this matter is in four counts. The First Count claims negligence as Hodess Building Co. ("Hodess") resulting in injuries to the Plaintiff, John Sequenzia: the Second Count claims negligence as to Guerrieri Masonry, Inc. ("Guerrieri") regarding the injuries to the Plaintiff, John Sequenzia; the Third Count alleges a loss of consortium claim by Diane Sequenzia against Hodess and the Fourth Count alleges a loss of consortium claim by Diane Sequenzia against Guerrieri. The claims against Hodess were withdrawn prior to trial. A nonsuit was entered against Diane Sequenzia for her failure to present a case at trial. The case proceeded to verdict only as to the claims by John Sequenzia against Guerrieri. Therefore, reference to the Plaintiff herein is to John Sequenzia, and reference to the Defendant is to Guerrieri.
Trial of this matter was held before a jury on April 26, 27, and May 1, 2007. A verdict in favor of the Plaintiff was rendered on May 2, 2007. The jury awarded the Plaintiff $126,389.43 in economic damages and $500,000 in non-economic damages. It also found that Guerrieri was 30% negligent, Hodess was 25% negligent, and the Plaintiff was 45% negligent. The jury was charged as to the claims against Hodess since it was a settled or released party. See General Statutes § 52-572h.
By motions dated May 9, 2007, the Defendant moved for judgment notwithstanding the verdict and for a new trial. The Plaintiff filed objections to these motions, dated May 18, 2007. The Defendant also filed a Motion for Reduced Verdict, dated May 9, 2007, to which the Plaintiff file an objection, dated May 25, 2007. The court heard oral argument on the motions on June 25, 2007.
The Evidence Presented at Trial
The evidence presented at trial, viewed in the light most favorable to sustaining the verdict can be summarized as follows. Guerrieri was the masonry subcontractor on a project in which Hodess was the general contractor. Pursuant to its contract with Hodess, the Defendant was responsible for the prevention of accidents on or in the vicinity of its work. Guerrieri arranged with the Plaintiff's employer, Wethersfield Building Supply, for the delivery of a load of bricks to the site on November 14, 2003. The Plaintiff remembers November 14th as a windy day. The bricks were to be delivered in the afternoon but were delivered in the morning. The Plaintiff was employed as a delivery truck driver for Wethersfield Building Supply. He had many years of experience operating a truck similar to the truck he drove on November 14, 2003 for Wethersfield Building Supply, and he had a great deal of knowledge of that particular truck. When Corado Guerrieri, the owner of Guerrieri Masonry, Inc., arrived at the site on November 14th, the Plaintiff was already there and his truck was parked. Guerrieri suggested to the Plaintiff that he move his truck farther away from the power lines in order to be safe, but the Plaintiff did not do so. Guerrieri did participate in deciding where the bricks should be placed on the construction site, but he had not directed the Plaintiff where to park his truck. The Plaintiff was solely responsible for operating and parking the truck as well as unloading the bricks. The bricks were off-loaded from the truck by means of a boom attached to the truck which was operated by the Plaintiff through a box of controls connected to the boom. The Plaintiff was solely responsible for operating the boom. A sticker on the Plaintiff's truck clearly stated: "Look up keep boom 15 feet from power lines." Corado Guerrieri knew that the truck probably could not be placed a distance of fifteen feet from the power lines, as suggested on the warning sticker on the truck, while unloading the bricks to the location selected. The Plaintiff had a view of the power lines which ran parallel to the position of his truck while he was unloading the truck. At some point, while the Plaintiff was in the process of unloading the bricks, the boom touched an overhead live electrical wire causing the Plaintiff to suffer a severe electrical shock resulting in significant injuries. Prior to that time, the Plaintiff had used the boom anywhere from five to twelve times to unload the bricks without incident.
Discussion CT Page 16976
The Defendant has moved that the verdict be set aside and for an order granting the Defendant's motion for directed verdict and that judgment be entered in favor of the Defendant. Alternatively, it has also moved for a new trial and for a reduction in the amount of the verdict.The Plaintiff proceeded to present his case to the jury as a claim based on premises liability. The court charged only on the allegations of the complaint which alleged that Guerrieri was negligent in that: "It had control and knowledge of the area of the site where the Plaintiff was injured yet failed to warn the Plaintiff of the danger of using a boom under the conditions then and there existing at the site" and that "It directed the Plaintiff through its agent, Mr. Guerrieri, to operate his truck and boom in an area that it knew or should have known did not provide adequate clearance and/or protection for the Plaintiff and could cause injury to him." The Defendant claims that both allegations find their basis in the premise that the Defendant had control over the area in question but the Plaintiff failed in his proof in this regard. The Defendant also claims that the Plaintiff failed to establish that the general contractor, Hodess, had control over the entire site, in particular, the air space occupied by the power lines adjacent to the site, and had any duty or ability to control the claimed hazard of the power lines. In addition, the Defendant claims that the allegation of control is also a basis of the duty to warn. The Defendant argues that the evidence established that the Plaintiff was aware of the power lines and therefore the Defendant had no duty to warn.
As regards the Defendant's motion "it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it . . . Two further fundamental points bear emphasis. First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient . . . Second, the well established standard; compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury." (Footnote omitted, internal citations and quotation marks omitted.) Gaudio v. Griffin Health Services Corporation, 949 Conn. 523, 534-35 (1999). "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, [t]he 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 and internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 702 (2006).
"Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court's legal discretion." Suarez v. Sordo, 43 Conn.App. 756, 759-60 (1996), cert. denied, 25 Conn. 906 (1997).
Liability
Our Supreme Court in Mazurek v. Great American Ins. Co., 284 Conn. 16, 29 (2007), recently stated: "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . ." (Citations omitted internal quotation marks omitted.)
The Plaintiff argued at trial that the decision in Gazo v. Stamford, 295 Conn. 245 (2001) controlled this case as to the source of the duty owed by the Defendant to the Plaintiff, and the court charged the jury accordingly. The Plaintiff did not claim at trial, as he does now in his Objection to Motion for Judgment Notwithstanding the Verdict, that Guerrieri's duty to him arose from its control of the area where the Plaintiff was injured. As the Court noted in Gazo, not at issue in that case was whether the independent contractor "may be liable to the plaintiff on a theory of premises liability, which requires that the party to be held liable be in control of the property." Id., 249. Instead, the issue in Gazo was whether a plaintiff claiming injuries resulting from a slip and fall on ice and snow is owed a duty of care by an independent contractor hired by the possessor of the property to maintain the property in a safe condition. The Court found that such a duty existed in that case. The Court cited the Restatement (Second) of Torts which provides in relevant part that "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if . . . (b) he has undertaken to perform a duty owed by the other to the third person . . ." The Court adopted this statement "at least in the circumstances of the present case, in which it is clear that the service was performed for consideration and in a commercial context." (Footnote omitted.) Id., 252-53. In Gazo the Court found that the defendant, an independent contractor, had contracted to perform ice and snow removal services for the possessor of the property which had a nondelegable duty to keep the premises safe. Thus, the Court held that the independent contractor was subject to liability to the plaintiff for his physical injuries if the plaintiff could show that the independent contractor failed to exercise reasonable care when performing the duty owed by the possessor of the land to the plaintiff. As the Court noted in Gazo, to hold a party liable on a theory of premises liability requires that the party to be held liable be in control of the property. Although in Gazo the possessor of the land was liable under such a theory, the independent contractor could be held liable only where it contractually assumed a duty that the possessor of the land owed to the injured party, not because it was in control of the property.
Consistent with Gazo, the court charged the jury here that: "Only if you find all of this following is Guerrieri Masonry, Inc. liable to the plaintiff: 1) that Hodess Building Co. controlled the premises; 2) that Guerrieri Masonry, Inc. had a contract with Hodess Building Co. to perform certain services that Hodess Building Co. would have had a duty to perform under the circumstances as the entity in control of the premises; 3) that Guerrieri Masonry, Inc. failed to use reasonable care to perform those services; and 4) that the failure of Guerrieri Masonry, Inc. to use reasonable care was a proximate cause of injuries to the plaintiff. If any one of these elements has not been proved you must find in favor of Guerrieri Masonry, Inc. and against the plaintiff."
The Plaintiff claims that Hodess had control of the site. Thus it stands in the same position as the possessor of the land did in CT Page 16979 Gazo. He also claims that the choice where the brick was to be placed was made by the Defendant and it had an obligation to choose a location and not direct this placement of the products in a location where there is a reasonable likelihood somebody could be injured. The Defendant argues that the Plaintiff failed to establish that Hodess had control over the entire site and that there was no evidence from which the jury could have concluded that the Defendant had any control over the area or the air space occupied by the power lines adjacent to the construction site where the incident occurred. "Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property." (Citations omitted.) Silano v Cumberland, 85 Conn.App. 450, 453 (2004). "[L]iability for a claimed injury due to . . . defective premises depends on possession and control and not on title . . . The word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power of authority to manage, superintend, direct or oversee . . . [T]he question of whether a defendant maintains control over property sufficient to subject him to . . . liability normally is a jury question. (Internal quotation marks and citations omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 43 (2000). "Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest an reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury . . . In addition, the contractor's control need not be exclusive; it is sufficient if it be shared with another." (Internal quotation marks and citations omitted.) Van Nesse v. Tomasewski, 265 Conn. 627, 631 (2003). "Generally, one does not owe a duty to entrants unless such person asserts control or possession over the property . . . [P]ossession cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." (Internal quotation marks and citations omitted.) Silano v. Cumberland, 85 Conn.App. 450, 454 (2004).
The court instructed the jury that if the Plaintiff did not prove that Hodess had control of the premises. then it must return a verdict for the Defendant. Here, viewing the evidence in the light most favorable to upholding the verdict, there was evidence on which the jury could reasonably conclude that Hodess had control of the premises such that it owed the duty of care as a possession of the premises to the Plaintiff. Hodess was the general contractor on the site. Its superintendent had the keys to the site, which remained locked until the superintendent opened the gates and allowed persons into the site.
The jury could also have reasonably found that Hodess contracted with the Defendant to perform a duty it had as the possessor of the land. As to an invitee, a possessor of land is under duty to use reasonable care to maintain the premises in a reasonably safe condition and to warn an invitee of dangers which an invitee could not reasonably be expected to anticipate. Warren v. Stancliff, 157 Conn. 216, 218 (1968). The court instructed the jury: "As an invitee, the entity in control of the premises owed [the Plaintiff] the following duties: 1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe; 2) the duty to warn or guard the visitor from being injured by reason of any defects that the invitee could not reasonably be expected to discover; 3) the duty to conduct activities on the premises in such a way so as not to injure the visitor." The court charged the jury that if it found that there was no contract between Hodess and the Defendant for services that Hodess had a duty to perform as the entity in control of the premises, then it should find for the Defendant. The contract between Hodess and Guerrieri provided that "[t]he prevention of accidents on or in the vicinity of its work is [Guerrieri's responsibility . . ." Thus it did provide that Guerrieri assumed duties similar to that which Hodess as the possessor of the land, owed to invitees on the premises, that is, the duty to keep the premises safe and the duty to conduct activities on the premises in such a way so as not to injure a visitor. Thus, the evidence could be viewed as establishing that Guerrieri had a duty to the Plaintiff, in that Guerrieri had undertaken to perform a duty owed by Hodess to the Plaintiff, as the independent contractor did in Gazo.
Even though the evidence was sufficient for the jury to make a finding that the Guerrieri had assumed some aspect of the duty of care owed by Hodess to business visitors on the property, there was no evidence that Hodess or Guerrieri had any control over the power lines as part of their control over the premises. Although the evidence indicated that power lines ran near the property there was no evidence that they were maintained by the Defendant or even provided electrical service to it or the site. In fact, the Plaintiff admits that "there was no evidence ever presented at trial indicating what the power lines were for, who they belonged to or where they ran to." Objection to Motion for Judgment Notwithstanding the Verdict, p. 4. Since Hodess' control of the premises, and consequently Guerrieri's duty to keep it safe, did not extend to the power lines, Guerrieri did not breach a duty to the Plaintiff in failing to somehow protect him from them. cf. Reboni v. Cass Brothers, Inc., 137 Conn. 501 (1951) (defendant held liable for electrocution of plaintiffs caused by contact with wires running over factory yard of defendant where contractor was required to do work without interrupting work of the defendant by shutting off the power.)
Regarding its duty to prevent accidents on or in the vicinity of its work, Guerrieri knew that the truck probably could not be placed a distance of fifteen feet from the power lines, as directed on the warning sticker on the truck, while unloading the bricks to the location selected. Guerrieri has in fact suggested to the Plaintiff that he move his truck in order to be safe, but because of the closeness of the construction site, the truck could not be moved that far. Therefore the jury could have reasonably found that the Defendant breached its duty to prevent accidents in the vicinity of its work by exposing the Plaintiff to a dangerous situation while unloading bricks for the Defendant's work.
As to the duty to warn, the evidence was insufficient to establish that Guerrieri took on this duty pursuant to its contract with Hodess. In any event, one in control of land may have a "duty to warn invitees . . . of conditions that pose reasonably foreseeable dangers to the public . . . The duty to warn, however, does not arise if an invitee already has actual knowledge of the dangerous condition." (Citations omitted.) Fleming v. Garnett, 231 Conn. 77, 83-84 (1994). "The possessor of land has no duty to warn an invitee of a dangerous condition when the invitee has actual knowledge of the condition . . . The failure to warn an invitee of something he already knows is without legal significance." (Internal citations omitted.) Warren v. Stancliff, 157 Conn. 216, 220 (1968). Here the evidence was undisputed that the utility lines were open and visible to the Plaintiff while he was unloading the truck. Therefore, the Defendant had no duty to warn the Plaintiff of the dangers posed by the wires.
Motion for Judgment Notwithstanding the Verdict
"In determining whether to set aside the verdict, the trial court walks a thin line. 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 . . . Within these parameters, furthermore, the trial court may set a verdict aside even if the evidence was conflicting and there was direct evidence in favor of the party who prevailed with the jury . . . Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . ." (Citations and internal quotation marks omitted.) CT Page 16982 Labbe v. Hartford Pension Commission, 239 Conn. 168, 192 (1996).
Considering the legal principles set forth above, and the evidence presented at trial, this court determines that in rendering its verdict the jury did not err. There was some evidence to support finding that the Defendant, under the theory of liability espoused by the Plaintiff, breached its duty to the Plaintiff.
Motion for New Trial
In its Motion for New Trial the Defendant claims that the court erred in that: "(1) the Court failed to admit a portion of the complaint relating to causation concerning the general contractor Hodess; (2) the Court erred as a matter of law in not finding that the defendant had no duty to warn; (3) the Court improperly entered a portion of a contract between the defendant Guerrieri and the general contractor Hodess; (4) the Court permitted the plaintiff to go beyond rebuttal in his closing argument."
The first and third claims involve evidentiary rulings. In this regard the Appellate Court has stated: "Our review of claims of evidentiary impropriety are governed by well established principles. This court will set aside an evidentiary ruling only when there has been a clear abuse of discretion . . . [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result . . . In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless . . . In other words, our two part review requires the party seeking a new trial on the basis of a claimed evidentiary impropriety first to establish that the court abused its discretion in its ruling. Only if the plaintiff succeeds in surmounting that first hurdle will this court then consider whether the impropriety was harmful in that it likely affected the result." (Citations and internal quotation marks omitted.) Terio v. Rama, 104 Conn.App. 35, 39 (2007).
As to the claim regarding the allegations of the complaint against Hodess, the court does not believe that its failure to allow that portion of the complaint into evidence was error, since the court stated to the jury in its charge all the allegations made against Hodess in the complaint. Therefor the court does not see how, in any event, the exclusion of such evidence affected the result. Likewise, the court properly allowed the portion of the contract with Hodess and Guerrieri into evidence. Contrary to the Defendant's claim, it was not offered to support a third-party beneficiary claim, but to establish the source of the Defendant's duty to the Plaintiff as the basis of his negligence claim.
Regarding the failure of the court to exclude from its charge to the jury the issue of the duty to warn, as noted above, the court did err in charging the jury regarding this issue because there was no evidence to support such a claim. However, since this was not the sole basis of the Plaintiff's claim, and the court charged on alternative grounds on which the Defendant could be held liable, this does not warrant a new trial.
In the Defendant's last claim, it challenges the court's ruling allowing the Plaintiff's counts to argue in his second presentation to the jury issues that were not rebuttal but new claims that were not addressed in his initial remarks. When the Defendant objected at that time, the court noted that the Practice Book did not require that the Plaintiff's closing argument be limited to a rebuttal of the Defendant's claims. Practice Book § 15-5(a)(4) provides that "[t]he plaintiff shall be entitled to make the opening and final closing arguments." The Rule does not address the content of those arguments. In State v. Rosa, 170 Conn. 417, 428, cert. denied, 429 U.S. 845 (1976). the Court addressed similar language used in a statute governing argument in criminal cases. There the court stated: "There is no rigid requirement that a prosecutor's final summation must be limited solely to rebuttal of matter raised in the defendant's argument. The trial court is invested with a large discretion with regard to arguments of counsel . . ." (Internal quotation marks and citations omitted.) The Defendant does not claim that the Plaintiff's counsel's remarks were substantively improper but only that he had an opportunity to rebut them. Those arguments focused on the Plaintiff's injuries and damages. Based upon the amount of the verdict, which the Defendant does not claim to be excessive, nor does this court believe it to be, this court does not find that the Defendant was prejudiced by the inability to respond to certain of the Plaintiff's arguments. "A trial court is invested with a large discretion with regard to arguments of counsel, and appellate courts should only interfere with a jury verdict if the discretion has been abused to the manifest injury of a party . . ." (Internal quotation marks and citations omitted.) Medes v. Geico Corporation, 97 Conn.App. 630, 636 (2006).
Motion for Reduced Verdict
In its Motion for Reduced Verdict the Defendant claims that the amount of economic damages should be reduced because that amount reflects the amount billed for past medical care, but not the amount actually paid in satisfaction of the medical bills by the Plaintiff's workers' compensation carrier. The parties agree that the total amount paid was $91,680.85 rather than the $126,389.43 awarded by the jury. The Defendant argues that the Plaintiff should not be allowed the windfall this difference creates. This court agrees with the analysis of this same issue by Judge Beach in Smallridge v. Tramantozzi, Superior Court Judicial District of Middlesex, Complete Litigation Docket at Middletown. Docket No. X04 CV 03 4001300 S (Oct. 25, 2006). There the court noted that Connecticut has a policy against double recovery, which results in a windfall. Thus, the court there reduced the amount of economic damages to reflect the amount of medical bills paid by the actual payer and accepted by the provider as full payment for the bills. The court will do so here. The Defendant is entitled to a remittitur in the amount of $34,708.58.
Conclusion
Therefore, the Motion for Judgment Notwithstanding the Verdict (#141) is denied and the Objection (#146) thereto is sustained. The Motion for a New Trial (#144) is denied and the Objection (#145) thereto is sustained. The Motion for Reduced Verdict (#143) is granted and the Objection (#147) thereto is overruled. The verdict is set aside and a new trial ordered unless the Plaintiff accepts judgment in the amount of $91,680.85 in economic damages and $500,000 in non-economic damages.