Fisk v. Town of Redding

337 Conn. 361

253 A.3d 918

Gregg FISK

v.TOWN OF REDDING et al.

SC 20333

Supreme Court of Connecticut.

Argued April 27, 2020

Officially released November 9, 2020^**

Thomas R. Gerarde, Hartford, with whom were Eric E. Gerarde, and, on the brief, Beatrice S. Jordan, Hartford, for the appellant (named defendant).

A. Reynolds Gordon, with whom, on the brief, was Frank A. DeNicola, Jr., for the appellee (plaintiff).

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn, and Ecker, Js.^*

KAHN, J.

This certified appeal requires us to consider whether the jury's verdict in this case contains a fatal inconsistency between two special interrogatories relating to a count alleging absolute public nuisance, one finding that a particular condition on the land was inherently dangerous and the other finding that the defendant's use of the land was reasonable. The plaintiff, Gregg Fisk, brought the present action against the named defendant, the town of Redding,¹ alleging that a specific retaining wall located outside of a local pub should have been guarded by a fence and that the absence of such a fence constituted a public nuisance and caused him to sustain personal injuries. The defendant appeals from the judgment of the Appellate Court, which reversed the judgment rendered in favor of the defendant and remanded the case for a new trial. Fisk v. Redding , 190 Conn. App. 99, 113, 210 A.3d 73 (2019). Specifically, the defendant claims that the Appellate Court incorrectly concluded that the trial court abused its discretion when it denied the plaintiff's motion to set aside the verdict, which had claimed that the jury's response to the first special interrogatory—that the unfenced retaining wall was inherently dangerous—was fatally inconsistent with its response to the third special interrogatory that the defendant's use of the land was reasonable. Id., at 103, 112, 210 A.3d 73. Because we conclude that the jury's answers to the first and third special interrogatories can be harmonized in light of our established nuisance jurisprudence, we conclude that the Appellate Court incorrectly concluded that the trial court had abused its discretion by denying the plaintiff's motion to set aside the verdict. We, therefore, reverse the judgment of the Appellate Court.

The jury reasonably could have found the following relevant facts. The retaining wall in question was constructed as a part of the defendant's Streetscape Project (project), which was funded by federal and state grants.² This retaining wall is located at one end of a parking lot used by the Lumberyard Pub (pub) in the town of Redding. The primary entrances and exits of that parking lot are connected to Route 57, which borders the parking lot on one side. The retaining wall runs between the parking lot and the intersection of Route 57 and Main Street. That intersection sits partially below the parking lot due to the downward slope of the land and the construction of the retaining wall. To the right of the exit to the parking lot, as Route 57 moves downhill toward Main Street, there is an "area of refuge" between Route 57 and the granite curb. The "area of refuge" is separated from Route 57 by a white line and is designed to be used by pedestrians, bicyclists, and joggers as they approach the intersection of Route 57 and Main Street.

The construction of the retaining wall was supervised by the Department of Transportation (department). During the design phase of the project, the department's design engineer supervisor, Tim Fields, approved the construction of a five foot retaining wall without a fence running atop it. While the retaining wall was being built, it became clear that the final structure would need to be taller than five feet at its highest point due to the downward slope of a driveway situated below the wall. Alterations to the retaining wall's design were implemented through a "change order process" that provided notice to the department of the modifications. The modified construction plan called for the building of a retaining wall that would be just under six feet tall at its highest point, as well as the installation of a "Merritt Parkway" style guardrail at the end of the parking lot, and an area of dense landscaping between the guardrail and the top of the wall. In its final form, the retaining wall complied with the Connecticut State Building Code, which governs the construction of retaining walls within the state. On June 16, 2011, department engineers conducted a semifinal walk-through of the nearly completed project. During the walk-through, no engineers raised any concerns regarding the absence of a fence atop the retaining wall.

The plaintiff was familiar with both the pub and its adjacent parking lot. In fact, prior to moving away from the area in 2007, the plaintiff worked just down the street from the pub for seven years. In May, 2011, the plaintiff moved within a mile of the pub and began frequenting it between one and two times per week. The plaintiff testified that when he left the pub after his weekly or semiweekly visits, he typically walked through the pub's parking lot, out of the designated exit, and onto the "area of refuge," which he used to turn right onto Main Street.

On the evening of August 26, 2011, at approximately 8:30 p.m., the plaintiff went to the pub for dinner and drinks. At around 2 a.m., the plaintiff left the pub after having consumed approximately five beers. In order to reach Main Street more quickly, the plaintiff crossed the pub's parking lot, climbed over the guardrail, walked through the landscaping, and approached the retaining wall. The plaintiff testified that he was aware of the drop but was not aware of the actual distance between the wall and the ground below. As the plaintiff walked along the top of the retaining wall, he fell and injured his leg and ankle in several places.

The plaintiff subsequently brought the present action against the defendant, alleging that he was injured when he fell off of the retaining wall and that, because the retaining wall "had no protective fencing," it was "inherently dangerous and constituted an absolute nuisance." The defendant filed an answer and asserted the special defenses of assumption of the risk and recklessness. The plaintiff's public nuisance action proceeded to a jury trial on July 19, 2016. During trial, several witnesses offered testimony relevant to both liability and damages. The plaintiff testified about the night in question and the injuries he sustained from his fall. The jury also heard testimony from James Fielding, the project manager who oversaw the construction of the retaining wall, as well as Richard Ziegler, a forensic engineer and the plaintiff's expert witness. Various exhibits were also introduced, including photographs of the retaining wall, the surrounding area, the Merritt Parkway style guardrail, and the landscaping between the guardrail and the retaining wall.

Before the jury began its deliberations, the trial court charged the jury in relevant part: "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]. ... If the plaintiff fails to prove any one element, then a public nuisance has not been established, and you should return a verdict for the defendant."³

The trial court, in explaining the verdict forms and the special interrogatories, also instructed the jury: "[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 trial court then submitted seven special interrogatories to the jury. The special interrogatories relevant to this appeal, special interrogatories one and three, provided: (1) "Has [the] 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?" And (3) "Has [the] plaintiff proven to you, by a preponderance of the evidence, that the defendant's use of the land was unreasonable or unlawful?"

During its deliberations, the jury submitted a note to the court with the following question: "If we are not all in agreement on questions [one and two] but are on question ... three, are we able to...