Fisk v. Town of Redding

         Argued November 14, 2018

         Appeal from the Superior Court, Judicial District of Fairfield, Kamp, J.

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[Copyrighted Material Omitted]

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          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.

         [190 Conn.App. 101] 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 "Streetscape Project." The project was funded by federal and state

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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, [190 Conn.App. 102] 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.

         [190 Conn.App. 103] 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

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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 [190 Conn.App. 104] 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 ...