Argued
November 14, 2018
Appeal
from the Superior Court, Judicial District of Fairfield,
Kamp, J.
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[Copyrighted Material Omitted]
Page 75
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 plaintiffs
first claim but disagree with the second.
The
record reveals the following facts. A retaining wall was
constructed as part of the defendants "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 departments
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 jurys 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 defendants 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 defendants [190 Conn.App. 104]
verdict form. If you answer yes, you continue to number
three. And you continue through the process until youve
reached your verdict either using one or the other of the
verdict forms. You necessarily also have to complete the ...