Maurice v. Chester Hous. Assocs. Ltd.

189 Conn.App. 754

208 A.3d 691

De Ann MAURICE

v.CHESTER HOUSING ASSOCIATES LIMITED PARTNERSHIP, et al.

AC 40742

Appellate Court of Connecticut.

Argued February 7, 2019

Officially released May 7, 2019

Kelly E. Reardon, New London for the appellant (plaintiff).

Sarah B. Christie, with whom, on the brief, was Sarah Tischbein Bold, for the appellee (defendant Something Natural, LLC).

Jay F. Huntington, with whom, on the brief, was Kelly R. Wall, Hartford for the appellees (named defendant et al.).

Bright, Moll and Bear, Js.

BRIGHT, J.

The plaintiff, De Ann Maurice, appeals from the judgment of the trial court, rendered in favor of the defendants, Chester Housing Associates Limited Partnership, MJKH Property Services, LLC, and Something Natural, LLC, following a jury trial. On appeal, the plaintiff claims that the court abused its discretion (1) when it did not allow the plaintiff's expert witness to testify as an expert in snow removal, and (2) when, in granting the plaintiff's motion for sanctions, it denied the plaintiff's request that the court render a default judgment as a sanction against Chester Housing Associates Limited Partnership as a penalty for the egregious misconduct of its general and managing partner, Douglas H. Williams.¹ We affirm the judgment of the trial court.

The following facts and procedural history inform our review. The plaintiff filed a second amended complaint alleging separate counts of negligence and private nuisance against each of the three defendants. In her complaint, she alleged that she lived at the Cherry Hill Apartments in the town of Chester (property), which was owned, operated, managed, controlled, and/or maintained by the defendant Chester Housing Associates Limited Partnership (property owner). The plaintiff also alleged that the defendant MJKH Property Services, LLC (property manager), owned, operated, managed, controlled, and/or maintained the property. Further, she alleged that, during times of inclement weather, the defendant Something Natural, LLC (snow removal company), was responsible for the snow and/or ice plowing, removal, clearing, and maintenance of the property, including all walkways, parking areas, common areas, and/or sidewalks.

The plaintiff further alleged that on December 12, 2013, as she walked from her apartment to her vehicle, which was in the parking lot of the property, she slipped and fell on a patch of snow and/or ice, and suffered injuries and an increased risk of future harm. The plaintiff claimed her injuries were caused by the negligence and the private nuisance caused or created by each of the defendants. Following a trial, the jury returned a verdict in favor of the defendants. The plaintiff, thereafter, filed a motion to set aside the verdict, which the court denied. The court, subsequently rendered judgment in accordance with the jury's verdict. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff first claims that the court abused its discretion when it did not allow the plaintiff's expert witness, Mark Tebbets, to testify as an expert in the field of snow removal. She argues that she established, during voir dire, that Tebbets "had engaged in commercial and residential snow removal, including removing snow from apartment complexes ... [and that] his qualifications were sufficient to render him an expert in the field of snow removal ...." She further contends that "the court's decision to preclude [Tebbets'] testimony about snow removal, but allow his testimony regarding building codes, was clearly harmful to the plaintiff ...." We are not persuaded.

The following additional facts are relevant to this claim. The plaintiff disclosed Tebbets as an expert in the fields of "building codes, fire codes, [Americans with Disabilities Act (ADA) ] accessibility, fall prevention, and safe snow removal." Tebbets' resume reveals that he has a Bachelor of Science degree in education, with a focus on "industrial arts, mechanical, electrical, carpentry and architectural drafting." He also attended a mechanical engineering program at Thames Valley State Technical College. Tebbets has additional training listed on his resume as follows: International Code Council's master code professional certification since 1998; Connecticut certified building official; Massachusetts building commissioner; property maintenance and housing inspector; certified zoning official of the Connecticut Association of Zoning Enforcement Officials; Occupational Safety and Health Administration (OSHA) and Environmental Protection Agency regulations; Connecticut Building Officials and Code Administrators building code updates; and ADA mandates regarding asbestos and lead abatement. Tebbets' resume also lists his extensive professional experience in: building code consulting and building, safety, and fire code compliance; ADA consulting and compliance; building energy code policies; the drafting of model legislation in support of stronger energy codes; teaching professional development seminars and classes regarding building code and inspection; and enforcement of OSHA regulations.

After the plaintiff called Tebbets to the witness stand, Tebbets discussed his extensive education and experience with codes and ordinances. He then testified about his experience with snow removal. Tebbets testified that he "shoveled snow for [his] mom and dad ... [and] worked at a marina where ... [he] plowed there. Eventually, [he] worked for different ... con-tractors, [where] in the middle of winter, there's not a whole lot to do except come out in a snowstorm and shovel snow or plow." He testified: "If you look around, in the old days, every carpenter had a plow on the front of his truck, so I learned to plow when I was still in high school ...." He also stated that he had a multi-family dwelling that he owned and plowed and that his relatives owned a trailer park where he plowed, thereby "bec[oming] familiar with it just because it was the off-season and it was the thing you did." The plaintiff, thereafter, offered him as an expert on "snow removal and codes and ordinances."² The defendants objected to his testifying as a snow removal expert on the ground that Tebbets had not set forth any expertise on the issue of snow removal. The court stated that, up to that point, it had not heard anything that would rise to the level of expertise in snow removal, but permitted the plaintiff to engage in additional questioning.

The plaintiff then asked Tebbets more questions about his snow removal background. Tebbets explained that he was involved with snow removal for the Mashantucket Pequot Tribal Nation where, although it had a public works department that did the actual snow removal, he, as the chief land use inspector, "had to do all the difficult things like figure out where things were supposed to go." He also testified that he "was involved with making sure that the lots, the walks—especially sidewalks with the people walking around—were cleared and properly draining." He testified that he was involved in snow removal while he worked in the construction industry, but he "got tired of using a shovel, so [he] kind of moved more [toward] the technical supervisor roles at that point," and he had begun supervising others who were removing snow and plowing. Further, he stated that when he was the zoning enforcement officer in Groton, he was responsible for reviewing site plans to assess whether plow trucks could move about without obstruction, as well as the appropriateness of the drainage systems being proposed.

The defendants again objected to Tebbets testifying as an expert in snow removal. The court then explained to the plaintiff's attorney that it had not heard anything that would rise to the level of expertise. It asked counsel whether Tebbets had gone to school or attended seminars on snow removal, or whether he had read any books or educational materials on snow removal, or whether he had taught classes or seminars. Counsel, again, was permitted to question Tebbets further.

The plaintiff's attorney then asked Tebbets if he had any training in snow removal or whether there is training or schooling for snow removal. Tebbets answered: "[T]he town of Groton had some, but not being a plow driver there, I didn't have to take their class on plowing. We were always more concerned about where they were plowing and directing them where not to plow." Tebbets then proceeded to explain that he had driven a pickup truck with a snow plow and had driven a big truck with a sander on the back. The plaintiff's attorney asked him if anyone had taught him how to do those things, and Tebbets said: "Well, they showed me how to drive and then they taught me how to plow and ... how to plow routes. They taught me ... [not to] stick [my] hand in the snow blower." The plaintiff's attorney then said: "Unless Your Honor wishes to direct some more questions, I'm not going to waste the jury's time any further, so I will offer him as an expert in snow removal. If Your Honor does not find him to be an expert, we'll just move on." The defendants' attorneys stated that they still objected. The court stated: "Okay. Yeah. I'm not seeing how he has special expertise in it other than having done a little bit of it, and it's somewhat tangential to his real expertise. So I'll sustain the objection, but I will find him to be an expert in codes and ordinances." On appeal, the plaintiff claims this was error. We disagree.

"A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue." Conn. Code Evid. § 7-2. "The determination of the qualification of an expert is largely a matter for the discretion of the trial court." (Internal quotation...