Robles v. West Avenue Dental, P.C.

          Argued May 30, 2018

         Procedural History

         Action to recover damages for, inter alia, the defendants' alleged negligent supervision, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the jury before Povodator, J.; verdict and judgment for the plaintiffs, from which the named defendant et al. appealed to this court. Affirmed.

          Kristan Peters-Hamlin, for the appellants (named defendant et al.).

          Daniel D. Dauplaise, with whom, on the brief, was Victoria deToledo, for the appellee (named plaintiff).

          Sheldon, Prescott and Bear, Js.

          OPINION

          PER CURIAM.

         The defendants West Avenue Dental, P.C., and Hrishikesh Gogate^[1] appeal from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff Andrea Robles, ^[2] their former employee, for injuries she suffered due to the defendants' negligent supervision of one of her male coworkers, who sexually harassed her at work over an extended period of time. The defendants challenge the judgment on the ground that the verdict on which it was rendered was returned after the court erroneously determined that it could not accept the jury's original plaintiff's verdict awarding Robles $0 in damages because that verdict was inherently inconsistent, and, thus, improperly required the jury to conduct further deliberations to resolve the alleged inconsistency instead of accepting the original verdict and rendering judgment on it. The defendants claim on appeal that the court erred in concluding that the jury's original verdict was inherently inconsistent, and, thus, in refusing to accept and render judgment on that verdict. They argue that an award of $0 in damages was reasonable in this case because the damages claimed by Robles were largely speculative and unproved, and any damages she did prove could have been reduced by the jury under the court's instructions on their special defense of failure to mitigate damages. Finally, the defendants, claiming that the court erred in instructing the jury that it must award Robles at least some damages if it found the defendants liable for negligent supervision, ask this court to restore the original plaintiff's verdict awarding Robles $0 in damages. Robles, in opposition to the defendants' claim, argues principally that the defendants are not entitled to prevail on that claim because they failed to assert it at trial, and, thus, they failed to preserve it for appellate review. In light of the following facts and procedural history, we agree with Robles that the defendants' present claim was not preserved at trial and, thus, that it cannot be reviewed on appeal.

         Robles and one of her former female coworkers filed a twenty-two count complaint against the defendants arising, inter alia, from the defendants' alleged failure to supervise one of their male coworkers who repeatedly sexually harassed them while they were in the defendants' employ. Eleven counts of the complaint were brought on behalf of Robles.

         After a lengthy trial, the jury found in favor of the defendants on ten of Robles' eleven counts against them. This appeal concerns only her seventh count, in which she pleaded the claim of negligent supervision on which she prevailed at trial. In that count, Robles alleged, inter alia, that the defendants failed to properly supervise one of her male coworkers whom they had a duty to supervise, and thereby allowed him to engage in sexually inappropriate conduct toward her, that the defendants were aware or should have been aware of her coworker's sexually inappropriate conduct toward her but failed take action to stop it, and, that as a result of the defendants' failure to take action to stop her coworker's sexually harassing conduct toward her, she suffered financial losses and emotional distress. The jury was instructed on that count, in relevant part, as follows: ‘‘A claim for negligent supervision . . . establishes direct liability for an employer who fails to exercise reasonable care in supervising . . . an employee. In order to prevail on a negligent supervision claim, [the] [plaintiff] must . . . prove that [she] suffered an injury due to the defendant[s'] failure to supervise an employee whom the defendant[s] had [a] duty to supervise. . . .

         ‘‘[W]ith respect to the [claim] of negligent supervision . . . proof of an actual injury is a necessary part of the claim. The [plaintiff] [is] not entitled to recover under negligence-based claims if [she does] not also prove an actual injury-something more than a technical or nominal injury. . . .'' (Internal quotation marks omitted.) The jury was provided a copy of the jury charge and a set of interrogatories, a worksheet and verdict forms to complete during its deliberations.

         The jury initially filled out the interrogatories regarding Robles' negligent supervision claim as follows: ‘‘Did [Robles] prove, by a preponderance of the evidence that the defendants were negligent in their supervision of [her male coworker]? Yes. . . .

         ‘‘Did the defendants prove that [Robles] . . . was negligent, as alleged by the defendants? Yes. . . .

         ‘‘The parties proved that the respective negligence of the parties is as follows (must add up to 100 [percent]): Negligence of defendants: 50 ...