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Gartrell v. City of Hartford

Court of Appeals of Connecticut

June 12, 2018

JOSEPH GARTRELL ET AL.
v.
CITY OF HARTFORD ET AL.

          Argued January 25, 2018

         Procedural History

         Action to recover damages for, inter alia, violations of the state building code with respect to certain real property, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the action was withdrawn as to the defendant Environmental Services, Inc.; thereafter, the matter was tried to the jury before Berger, J.; subsequently, the court granted the named defendant's motion for a directed verdict and rendered judgment for the named defendant, from which the plaintiffs appealed to this court. Affirmed.

          John R. Williams, for the appellants (plaintiffs).

          Demar G. Osbourne, assistant corporation counsel, for the appellee (named defendant).

          Alvord, Keller and Bright, Js.

          OPINION

          ALVORD, J.

         The plaintiffs, Joseph Gartrell, 481 Albany Avenue, and Wonder Package, LLC, appeal from the judgment of the trial court granting the motion for a directed verdict in favor of the defendant city of Hartford (city).[1] The plaintiffs claim that the trial court erred in directing a verdict for the city on the basis of the jury's answer to a single interrogatory. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. The plaintiffs owned a mixed-use commercial and residential building located at 481 Albany Avenue in Hartford (building). The first floor of the building was occupied by a liquor store, which was owned by Gartrell, and a delicatessen, and the second and third floors consisted of two units each of residential apartments.

         On Saturday, February 12, 2011, at 6:15 a.m., a nonresident who was present in the building started a fire on the third floor, using gasoline as an accelerant. The Hartford Fire Department (department) responded, and Gregory Simon, an officer with the department, authorized firefighters to enter the building. Firefighters had been alerted that a person was unaccounted for and that he was suspected to be in the third floor ‘‘left-hand apartment.''[2] Firefighters attempted to reach the third floor but were forced back by ‘‘heavy fire'' they encountered in the stairwell leading to the third floor. The fire engulfed structural members supporting the roof, which caused Simon concern that the roof was compromised. Simon also was aware that the building had heavy snow on the roof, which, combined with ‘‘the deteriorating roof members, '' caused ‘‘concern for imminent collapse.'' The third floor of the building became ‘‘fully involved, '' and the fire also started to envelop the second floor. One side of the building began to bow outward. As a result of the heavy fire, the department's safety officer, after consulting with the chief, ordered Simon's team to withdraw from the building, and a second team extinguished the fire from another location. Michael Fuschi, the Hartford building official, inspected the building on the day of the fire and determined that the roof rafters could ‘‘no longer support the original load by design.'' Temporary shoring was installed in order to permit officials to conduct their investigation.

         Gartrell's commercial tenant called him on the morning of the fire and told him that the building was burning. Gartrell lived in Bloomfield and was ill at the time. He was not able to drive and did not go to the building until two days after he learned of the fire.

         Also on the day of the fire, the city issued to Gartrell a notice of violation stating that the building had been deemed unsafe due to fire. The notice stated that the city's inspector would hire a contractor to board up the building, and a bill would follow. It directed Gartrell to ‘‘make building safe or demolish building.'' Gartrell received and counter-signed the notice on February 14, 2011, the same day that Gartrell first went to the building after the fire. Gartrell had gone to the building to meet with a representative from his insurance company. The police initially did not permit Gartrell to enter the building but he later entered the building and looked up the stairs. While Gartrell was at the building, a representative of the city told him that they would board up the building. At some point after the fire and before the demolition, Gartrell spoke with a carpenter named Benjamin Brown about fixing the building, but Gartrell needed time for his insurance company to estimate the job, and neither Brown nor Gartrell had made any preparations or requested any permits to repair the building.

         On the basis of his investigation, Fuschi had concluded by February 18, 2011, that under § 116.4 of the State Building Code, [3] imminent danger requiring immediate action existed, and he ordered the building to be demolished. On February 18, 2011, the city issued a second notice, signed by Fuschi, which stated: ‘‘[B]uild-ing to be demolished. Building poses imminent danger to public.'' Gartrell did not receive or counter-sign the second notice. The city retained Environmental Services, Inc., to demolish the building. Demolition began on February 19, 2011, and was completed on March 3, 2011.

         The plaintiffs commenced the present action in February, 2013. In their operative complaint, the plaintiffs alleged in two counts against the city that, inter alia, the city violated §§ 115.3 and 116 of the State Building Code and General Statutes §§ 49-73b and 49-34, in that it failed to provide the plaintiffs with notice describing the conditions deemed unsafe, failed to specify the required repairs, and failed to provide adequate notice that the building would be demolished within a stipulated time. The plaintiffs further alleged that the city deprived them of due process of law by preventing them from accessing the building and retrieving its contents.[4]

         At trial, the plaintiffs presented the testimony of Gartrell and Debra Nails, a tenant of the building. After the plaintiffs rested, the city moved for a directed verdict, arguing that the plaintiffs had not ‘‘carried the burden of proof with respect to showing that the city did not act underan emergency, '' and that the plaintiffs ‘‘offered no evidence whatsoever as to whether the plaintiff[s] [were] going to expeditiously render the premises safe.'' The plaintiffs' counsel objected, arguing that there were ‘‘substantial issues of negligence'' and that the city officials needed to testify as to the issue of whether the city was justified in making the decision to demolish the building so quickly.[5] The court reserved decision on the motion. The city then presented the testimony of Simon and Fuschi, and the plaintiffs recalled Gartrell in rebuttal. After the close of evidence, the city renewed its motion for a directed verdict, arguing that the plaintiffs had presented no evidence to challenge the city's evidence of an emergency. The plaintiffs' counsel objected, arguing that there was sufficient evidence, in the form of Gartrell's testimony that the building was not badly damaged, to present the issue to the jury. The court again reserved decision, and then stated: ‘‘All right. I'm going to follow the procedure that I discussed with you folks. Which means we will ask-provide the jury with this one interrogatory. And so we will have closing arguments and then charges on this issue.'' The city's counsel inquired of the court whether the jury would see the interrogatory before or after closing arguments, and the following exchange occurred:

‘‘The Court: They will go in with an instruction from me.
‘‘[The City 's Counsel]: Before or-
‘‘The Court: You're allowed to say to them-you're allowed to argue that to them. . . . And I will help you out-both out by telling the jury that I am going to ask this question of them first. And then you'll be able to start your very short, abbreviated closing argument on this issue. And then back to [the city's counsel], and then back to [the plaintiffs' counsel], just as if we were doing a regular closing argument. I will give them a short charge on this. And give them that instruction. Okay?
‘‘[The City's Counsel]: And the defendant first? And plaintiff last? I believe that's the order, unless I'm mistaken.
‘‘The Court: It's plaintiff, defendant, plaintiff. Okay?
‘‘[The City's Counsel]: Yes, sir.
‘‘The Court: And one issue.
‘‘[The City's Counsel]: ...

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