Argued
November 14, 2018
Procedural
History
Action
to recover damages for public nuisance, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Kamp, J., granted the named
defendant's motion to preclude certain evidence;
thereafter, the matter was tried to the jury; verdict for the
named defendant; subsequently, the court denied the
plaintiff's motions to set aside the verdict and for a
new trial, and rendered judgment in accordance with the
verdict, from which the plaintiff appealed to this court.
Reversed; new trial.
A.
Reynolds Gordon, with whom was Frank A. DeNicola, Jr., for
the appellant (plaintiff).
Thomas
R. Gerarde, with whom, on the brief, was Beatrice S. Jordan,
for the appellee (named defendant).
Sheldon, Elgo and Flynn, Js. [*]
OPINION
FLYNN,
J.
The
plaintiff, Gregg Fisk, appeals from the judgment of the trial
court rendered on a jury verdict in favor of the defendant
town of Redding.[1] On appeal, the plaintiff claims that
the court erred in (1) denying his motion to set aside the
verdict and (2) excluding evidence of subsequent remedial
measures. We agree with the plaintiff's first claim but
disagree with the second.
The
record reveals the following facts. A retaining wall was
constructed as part of the defendant's
‘‘Street-scape Project.'' The project was
funded by federal and state grants, and the state Department
of Transportation (department) supervised the construction.
The department's design engineer supervisor approved the
construction of a five foot retaining wall without a
fence.[2] During the construction phase of the
project, field conditions existed that necessitated the
height of the retaining wall to become taller than five feet,
as the driveway below it sloped downward. A wooden barrier in
the style of a Merritt Parkway guardrail was installed
several feet in distance from the retaining wall with dense
landscaping behind it.
The
retaining wall was adjacent to the parking lot of the
Lumberyard Pub. On the evening of August 26, 2011, at
approximately 8:30 p.m., the plaintiff went to the Lumberyard
Pub for dinner and drinks. The plaintiff left at
approximately 2 a.m., after consuming approximately five
beers. In order to reach Main Street by a shortcut, the
plaintiff climbed over the guardrail and stepped off the
retaining wall. While traversing the unfenced retaining wall,
the plaintiff fell and injured his left leg and ankle in many
places.
The
plaintiff brought an action against the defendant sounding in
absolute public nuisance and alleging that he was injured
when he fell off an unfenced retaining wall that had a nearly
six foot drop to Main Street below.[3] The defendant filed an
answer and special defenses, alleging, inter alia, assumption
of the risk and recklessness. Following trial, the jury
returned a verdict for the defendant, which the court,
Kamp, J., accepted and recorded.
Thereafter, the plaintiff filed a motion to set aside the
verdict, and the court issued a memorandum of decision
denying the motion. This appeal followed. Additional facts
will be set forth as necessary.
I
The
plaintiff claims that the court erred when it denied his
motion to set aside the verdict because the jury's
answers to the special interrogatories in the verdict form
were inconsistent. We agree.
The
following additional facts are relevant to this claim. The
court charged the jury, prior to deliberations, in part, as
follows: ‘‘First, the plaintiff must prove that
the retaining wall was inherently dangerous . . . that it had
a natural tendency to create danger and to inflict injury
upon person or property. It is the condition itself which
must have a natural tendency to create danger and inflict
injury. You, as the trier of fact, must consider all of the
circumstances involved in determining whether . . . the
condition in that particular location had a natural tendency
to create danger and inflict injury. Second, the plaintiff
must prove that the danger was a continuing one. . . . Third,
the plaintiff must prove that the use of the land, in this
case the retaining wall, was unreasonable or unlawful. In
making a determination concerning the reasonableness of the
use of the land, all the surrounding factors must be
considered. Fourth, the plaintiff must prove that the
condition interferes with a right common to the general
public. . . . If you find that the plaintiff has proven the
above elements of a public nuisance, next the plaintiff must
prove that the nuisance was a proximate cause of the injuries
suffered by [the plaintiff].''In explaining how to
proceed with the verdict forms and jury interrogatories, the
court stated: ‘‘[F]or example, you respond to
question one. If you answer no, as the instructions indicate,
you must return a verdict for the defendant, and you would
fill out the defendant's verdict form and that would end
your deliberations. If you answer number one yes, as the
instructions indicate, then you go on to question two, and
you answer that question. After question two, if you were to
answer that question no, then you would return a verdict for
the defendant using the defendant's verdict form. If you
answer yes, you continue to number three. And you continue
through the process until you've reached your verdict
either using one or the other of the verdict forms. You
necessarily also have to complete the jury interrogatories at
least completely or to where you stop if you answer a
question no.'' The court did not further explicate
interrogatories six and seven, which asked the jury to render
special verdicts as to whether the defendant had proved its
special defenses of recklessness and assumption of the risk.
Following
the final charge of the court to the jury, the court
submitted seven interrogatories to the jury, with the first
and third as follows: ‘‘1. Has Plaintiff proven
to you, by a preponderance of the evidence, that the
condition complained of, the subject retaining wall was
inherently dangerous in that it had a natural tendency to
inflict injury on person or property? . . . 3. Has Plaintiff
proven to you, by a preponderance of the evidence, that the
Defendant's use of the land was unreasonable or
unlawful?''[4] During deliberations, the jury
presented the following question to the court:
‘‘If we are not all in agreement on questions one
and two but are on question three, are we able to rule in
favor of the defendant?'' (Emphasis omitted.)
Thereafter, counsel discussed the issue with the court
outside the presence of the jury, and the plaintiff's
attorney stated: ‘‘If some of them are saying
that the wall was . . . inherently dangerous and the danger
was continuing, then that means that it has to be
unreasonable.'' The court did not agree and stated
that the ‘‘law requires that you, on behalf of
your client, prove all four elements, and if you can't
prove each element then there's a defendant's
verdict.'' The plaintiff's counsel explained,
‘‘we don't abandon our position, ''
to which the court responded, ‘‘of course you
don't because you're going to write about this on
appeal.'' The plaintiff's counsel specifically
took an exception to ‘‘the omission of the words
‘without a fence' after ‘retaining wall'
'' in the court's charge to the jury. He also had
preserved the issue in the plaintiff's request to charge,
dated July 25, 2016, which suggested that the court charged
the jury that ‘‘[t]he plaintiff must prove that
the retaining wall without a fence had a natural tendency to
create danger and to inflict injury upon person or
property.'' (Internal quotation marks omitted.)
Following
the colloquy with counsel, the court responded to the
jury's question as follows: ‘‘Ladies and
gentlemen, I instructed you on the law and you have my charge
as a court exhibit. And the plaintiff has the burden of
proof, as I indicated in my charge, to prove essentially four
elements of an absolute public nuisance . . . . If the jury
can unanimously . . . agree that the plaintiff has not proven
one of those four elements and you can agree upon that, and
in this case if it's number three and you so indicate on
your jury verdict interrogatories and you check that
unanimously in the negative, then you . . . can return a
verdict in . . . favor of the defendant. But you must all
unanimously agree that [the plaintiff] has not proven one
element of the cause of action.''
Following
deliberations, the jury responded in the affirmative to jury
interrogatories one and two and in the negative to the third
jury interrogatory. The plaintiff moved to set aside the
defendant's verdict, arguing that the jury's
responses to the first and third interrogatories, in which it
found that the wall was an inherently dangerous condition but
was not an unreasonable or unlawful use of the land, were
inconsistent. The court denied the motion, reasoning that the
‘‘jury's responses to the interrogatories
were not inconsistent because there was evidence that allowed
the jury to determine that, although the wall was
unreasonably dangerous, it was not an unreasonable use of the
land.''
‘‘The
standard of review governing our review of a trial
court's denial of a motion to set aside the verdict is
well settled. 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 [its] 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.''
(Internal quotation marks omitted.) Kumah v.
Brown, 160 Conn.App. 798, 803, 126 A.3d 598, cert.
denied, 320 Conn. 908, 128 A.3d 953 (2015).
‘‘When
a claim is made that the jury's answers to
interrogatories in returning a verdict are inconsistent, the
court has the duty to attempt to harmonize the
answers.'' (Internal quotation marks omitted.)
Suarez v. Dickmont Plastics Corp., 242
Conn. 255, 270, 280, 698 A.2d 838 (1997). The plaintiff
pleaded that the nuisance was absolute. ‘‘[I]n
order to prevail on a claim of nuisance, a plaintiff must
prove that: (1) the condition complained of had a natural
tendency to create danger and inflict injury upon person or
property; (2) the danger created was a continuing one; (3)
the use of the land was unreasonable or unlawful; [and] (4)
the existence of the nuisance was [a] proximate cause of the
[plaintiff's] injuries and damages. . . . [W]here
absolute public nuisance is alleged, the plaintiff's
burden includes two other elements of proof: (1) that the
condition or conduct complained of interfered with a right
common to the general public . . . and (2) that the alleged
nuisance was absolute, that is, that the defendants'
intentional conduct, rather than their negligence, caused the
condition deemed to be a nuisance.'' (Citations
omitted; internal quotation marks omitted.) State v.
Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177,
183, 527 A.2d 688 (1987).
‘‘Whether
an interference is unreasonable in the public nuisance
context depends . . . on (a) [w]hether the conduct involves a
significant interference with the public health, the public
safety, the public peace, the public comfort or the public
convenience, or (b) whether the conduct is proscribed by
[law] . . . . The rights common to the general public can
include, but certainly are not limited to, such things as the
right to use a public park, highway, river or lake.''
(Internal quotation marks omitted.) Kumah v.
Brown, supra, 160 Conn.App. 805.
‘‘The test of unreasonableness is essentially a
weighing process, involving a comparative evaluation of
conflicting interests in various situations according to
objective legal standards.''[5] (Internal quotation
marks omitted.) Walsh v. Stonington Water
Pollution Control Authority, 250 Conn. 443, 456, 736
A.2d 811 (1999), citing 4 Restatement, Torts § 826,
comment (b) (1939). One of those factors is utility.
‘‘Reasonableness in the nuisance context weighs
the utility of the interference with the public right against
the degree or severity of the interference. See 4 Restatement
(Second), Torts § 826, p. 119 (1979) (‘[a]n
intentional invasion of another's interest in the use and
enjoyment of land is unreasonable if . . . the gravity of the
harm outweighs the utility of the actor's conduct');
see also 58 Am. Jur. 2d 632-33, Nuisances § 79 (2012)
(‘the court must balance the gravity of the harm to the
plaintiff against the utility of the defendant's conduct
both to the defendant and to the community'). Such
considerations are germane to deciding whether an
interference with public safety is significant.''
Kumah v. Brown, supra, 806 n.6.
In
Kumah v. Brown, supra, 160
Conn.App. 798, the plaintiff driver collided with a fire
truck that had been positioned diagonally across Interstate
95 in response to a tractor trailer that had rolled over and
was leaking diesel fuel. Id., 800-801. The plaintiff
driver brought an action sounding in negligence and public
nuisance. Id., 801. The plaintiffs argued on appeal
that ‘‘the court erred in failing to set aside
the jury's verdict because the jury's finding that
the defendant was negligent was inconsistent with its express
finding that the defendant's use of the land was not
unreasonable.'' Id., 802. This court
concluded that ‘‘[i]t does not follow that simply
because the jury found, as to one or more of the alleged acts
or omissions, that the defendant had breached its duty to act
as an ordinarily prudent person, it then necessarily had to
find that the defendant's use of the land was
unreasonable in the circumstances.'' Id.,
804. This court further concluded: ‘‘The jury
could have found, for example, that a reasonably prudent town
would have added more traffic cones or placed them
differently, but that it was not unreasonable overall, given
the emergency, for the town to interfere with the
public's access to the highway generally by placing the
fire truck in front of the disabled tractor trailer and
generally guarding the scene. The interrogatories were not
necessarily inconsistent; therefore, the court did not abuse
its discretion in denying the plaintiffs' motion to set
aside the verdict.'' (Footnote omitted.)
Id., 806-807.
We are
presented with the question of whether the jury's
response to the first interrogatory, that the condition was
inherently dangerous, is fatally inconsistent with its
response to the third interrogatory, that the defendant's
use of the land was not unreasonable.[6] In his complaint,
the plaintiff alleged that the defendant constructed a
retaining wall that had a precipitous drop of approximately
six feet and was not fenced. The plaintiff claims that the
wall was inherently dangerous, constituted a public nuisance,
and that he injured himself when he fell off the retaining
wall. The issue in this case, as it was tried and argued
below, was not whether the defendant could build a wall, but
whether it could erect an unfenced wall, without thereby
creating a public nuisance. In analogous settings, such as
highway defect or premises liability cases, where a
particular defect must be proved, what must be established is
not a condition that might give rise to the defect, but the
existence of the very defect that caused the injury, such as
a pothole in a highway or a broken stair on someone's
premises. See, e.g., DiPietro v. Farmington
Sports Arena, LLC, 306 Conn. 107, 49 A.3d 951 (2012). In
the present case, the condition which the plaintiff claims to
have constituted a nuisance was the retaining wall
without a fence.
The
court instructed the jury on the ‘‘reasonable
use'' element of public nuisance that it was to
consider ‘‘all the surrounding factors.''
Although there was evidence of landscaping and a Merritt
Parkway style barrier several feet from the approximately
five foot tall wall, the jury nonetheless found the wall to
be inherently dangerous. Evidence that the plaintiff was
intoxicated, wore flip-flops, walked over the Merritt Parkway
barrier and jumped off the wall, does not pertain to the
question in the third interrogatory as to whether the
defendant's use of the land was reasonable.
‘‘[T]he only practical distinction between an
absolute nuisance and one grounded in negligence is that
contributory negligence is not a defense to the former but
may be as to the latter.'' (Internal quotation marks
omitted.) Quinnett v. Newman, 213 Conn.
343, 349, 568 A.2d 786 (1990), overruled on other grounds by
Craig v. Driscoll, 262 Conn. 312, 813 A.2d
1003 (2003). That evidence might well pertain to the
defendant's special defenses of recklessness and
assumption of the risk, but the jury did not reach those
issues. The issue of utility comes into play logically, not
about whether the wall itself had some use to hold back the
earth, but whether there was any useful public purpose to
erecting the wall without a fence atop it, which is the very
defect that the plaintiff, in his complaint, supporting
evidence, and argument to the jury, claims to have been the
nuisance that proximately caused his injuries. In this case,
as a matter of law, the jury could not have determined that
the retaining wall without a fence was both inherently
dangerous and not an unreasonable use of the land. A wall
with or without a fence has the same capacity to hold back
earth. The condition at issue is not the wall itself or the
Streetscape Project, but the wall without a fence atop it.
The inherently dangerous condition of the wall without a
fence has no utility to stabilize soil. In Kumah, a
jury reasonably could have found that the fire truck placed
diagonally across an interstate was not an unreasonable use
of the land given the utility of the fire truck in the
emergency situation. See Kumah v. Brown,
supra, 160 Conn.App. 806-807. In the present case,
there is no scenario under which the jury reasonably could
have determined, after concluding that the retaining wall
without a fence was inherently dangerous, that the fact that
the retaining wall lacked a fence served any utility to
either the defendant or the community, or that a weighing of
all relevant circumstances could make the use of the land for
an unfenced wall that is inherently dangerous and lacks any
utility, reasonable. Under the circumstances of this case,
the jury's answers to inter-rogatories one and three are
inconsistent. In Bilodeau v. Bristol, 38
Conn.App. 447, 455, 661 A.2d 1049, cert. denied, 235 Conn.
906, 665 A.2d 899 (1995), this court noted that in attempting
to harmonize the jury's inconsistent answers to
interrogatories, a court may, as dictated by caution, return
the jury to consider its verdict in light of the obvious
inconsistency. See also Rendahl v. Peluso,
173 Conn.App. 66, 95, 162 A.3d 1 (2017) (‘‘[a]
trial court may decline to accept a verdict and return the
jury to continue its deliberations when the verdict form or
accompanying interrogatories, if any . . . are legally
inconsistent''). The trial court did not do so in
this instance. Because the jury's answers are
inconsistent and cannot be harmonized, we conclude that the
court abused its discretion in denying the plaintiff's
motion to set aside the verdict. ‘‘A verdict that
is inconsistent or ambiguous should be set aside.''
Kregos v. Stone, 88 Conn.App. 459, 470, 872
A.2d 901, cert. denied, 275 Conn. 901, 882 A.2d 672 (2005).
II
The
plaintiff next claims that the court erred in excluding
evidence that following the plaintiff's accident, the
defendant installed a fence.[7] The plaintiff argues that
evidence of the remedial repair is admissible because the
defendant did not voluntarily install the fence but, rather,
did so at the direction of the department. We disagree.
‘‘The
trial court's ruling on evidentiary matters will be
overturned only upon a showing of a clear abuse of the
court's discretion. . . . We will make every reasonable
presumption in favor of upholding the trial court's
ruling . . . .'' (Internal quotation marks omitted.)
Stokes v. Norwich Taxi, LLC, 289 Conn. 465,
489, 958 A.2d 1195 (2008).
Section
4-7 (a) of the Connecticut Code of Evidence provides:
‘‘[E]vidence 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.
Evidence of those measures is admissible when offered to
prove controverted issues such as ownership, control or
feasibility of precautionary measures.'' Section 4-7,
‘‘which is an exception to the general rule of
admissibility of relevant evidence . . . reflects the settled
rule in this [s]tate that evidence of subsequent repairs is
inadmissible to prove negligence or [as] an admission of
negligence at the time of the accident. . . . [S]uch evidence
is likely to be of relatively minor probative value. . . . A
broad exclusionary rule prohibiting the use of such evidence
to prove negligence [or culpable conduct] therefore fosters
the public good by allowing tortfeasors to repair hazards
without fear of having the repair used as proof of
negligence, even though it requires the plaintiff to make a
case without the use of evidence of the subsequent repairs. .
. . [E]vidence of subsequent remedial measures may be
introduced when the party ...