Murray v. Taylor

65 Conn. App. 300

782 A.2d 702

PAUL MURRAY v. RODERICK G. TAYLOR ET AL.

(AC 19569)

Appellate Court of Connecticut.

Argued January 9, 2001.

Officially released August 28, 2001.

Lavery C. J., and Spear and Dranginis, JS. William C. Franklin, for the appellant-appellees (named defendant).

Edward F. Hennessey, for the appellee-appellant (plaintiff).

Opinion

SPEAR, J.

In this negligence action, the named defendant, Roderick Taylor,¹ appeals from the judgment of the trial court rendered on a jury verdict in favor of the plaintiff, Paul Murray. Taylor claims that the court (1) should have set aside the verdict against him because the conduct of the plaintiffs counsel violated his right to a fair trial, (2) should have set aside the verdict as excessive and (3) improperly instructed the jury.

The plaintiff cross appeals claiming that the trial court improperly granted the motion to set aside the verdict awarding him damages from the defendant Woodbury Ski and Racquet, Inc. (Woodbury). He claims that the court improperly set aside the award of damages after entering a default against Woodbury. The plaintiff also claims on his cross appeal that the court improperly refused to submit to the jury his claim against Taylor under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and his recklessness claim against Taylor. We affirm the judgment with respect to Taylor's appeal and with respect to the plaintiffs cross appeal against Taylor, but we reverse the judgment setting aside the jury verdict for the plaintiff against Woodbury.

The following facts and procedural history are relevant to these appeals. On the evening of March 12, 1993, the plaintiff, a business invitee, was injured in a sledding accident at a commercial skiing facility known as the Woodbury Ski and Racquet Club (club). The club was operated by Taylor and located on property owned by Taylor and Woodbury. The plaintiff sustained serious injuries, including a concussion and multiple fractures to his face and teeth, when his sled crashed into an unattended vehicle parked at the base of the slope.

The plaintiff filed a four count complaint alleging negligence (count one), wilful and malicious failure to protect or warn (count two) and a CUTPA violation (count three) against Taylor and Woodbury, and negligence (count four) against Romney Ames, Ronald B. Ames and Lillian Ames.² In his answer, Taylor raised the special defense of contributory negligence. Thereafter, Woodbury was defaulted for failure to appear, and the plaintiff settled the claim against the Ames defendants for the sum of $1500.

At trial, Taylor elected to represent himself. After the close of the evidence, the court announced that there was insufficient evidence to support the second and third counts against Taylor. It therefore charged the jury on the negligence count only. The jury found Taylor negligent and returned a verdict in favor of the plaintiff for $60,000 in economic damages and $40,000 in noneconomic damages. The negligence of Taylor and the plaintiff was assessed at 50 percent each, resulting in a damages award against Taylor of $50,000. The court then charged the jury on the issue of damages against Woodbury and the jury returned a verdict in favor of the plaintiff for $120,000.

Taylor and Woodbury filed several posttrial motions. Both defendants were represented by counsel at the hearing on the motions. The court denied Taylor's motion to set aside the verdict, for a new trial or for a remittitur, but reduced the damages award against him to $40,794.36 following a collateral source reduction hearing.³ The court also granted Woodbury's motion to set aside the award of $120,000 in favor of the plaintiff. These appeals followed. Additional facts and procedural history will be provided as necessary.

I

A

Taylor first claims that the court improperly failed to set aside the verdict against him because the conduct of the plaintiffs counsel and the absence of a curative instruction violated his right to a fair trial. He claims that counsel for the plaintiff (1) made prejudicial remarks and introduced irrelevant and highly prejudicial evidence as to the character of both parties, (2) made closing arguments based on facts not in evidence, (3) made "golden rule" arguments and (4) misstated the applicable law. He argues that the court had a duty to intervene and, because it did not, the verdict should be set aside and a new trial ordered despite his failure to object. We disagree.

"Our standard of review, where the trial court's action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion.... The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.... The trial court may set aside a jury's verdict only if it finds that the jury could not reasonably and legally have reached its conclusion." (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn. App. 123, 129, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).

Where a claim is made that remarks by opposing counsel jeopardized a party's right to a fair trial, "[a] verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court's function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom.... The trial judge has discretion as to the latitude of the statements of counsel made during argument." (Citations omitted.) Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 205, 470 A.2d 705 (1984). "If a counsel's remarks so prejudice the ability of a party to obtain a fair trial, a new trial is mandated.... [I]n such exceptional cases, the verdict should be set aside and a new trial ordered, regardless of whether the opposing party took exception to the remarks." (Citations omitted.) Id., 204.

Taylor first claims that he was denied his right to a fair trial because the plaintiff's counsel made prejudicial remarks regarding the character of both parties and introduced irrelevant and highly prejudicial character evidence. He argues that counsel repeatedly attempted to prejudice the jurors by describing the plaintiff as good and truthful, the plaintiffs father as a Superior Court judge and Taylor as a liar who flouted the law by holding illegal concerts on his property. He further argues that the prejudicial impact of such conduct was magnified because he was a pro se litigant acting as his own advocate. We disagree.

In his answer to the plaintiffs complaint, Taylor alleged that the plaintiff did not pay the rental fee for his sled, did not purchase a lift ticket and "was under the influence of alcohol, drugs or both" on the night of the accident. In his subsequent deposition, Taylor made similar allegations and added that the plaintiff and his friends had been on the premises before and were troublemakers. These allegations set the stage for future remarks at trial by the plaintiffs counsel concerning the issue of character.

The plaintiffs counsel was the first to make an opening statement. He initially reminded the jurors that his remarks did not constitute proof or evidence, but then stated that Taylor had not testified truthfully at his prior deposition and would lie in testimony before the court by saying that the plaintiff was a "bad kid" who was using alcohol, marijuana and possibly speed on the night of the accident. He also suggested that Taylor did not call the police or an ambulance following the accident because he was holding an illegal concert on his property and "he didn't want the police to know. He didn't want the town to know." By contrast, he described the plaintiff, his family, his friends and his physicians as "truthful people" and portrayed the plaintiff as "a good kid from a good family. His dad is a Superior Court judge, like Judge Hodgson.... He's a good boy." Taylor's opening statement responded in kind. He suggested that the plaintiff and his friends did not obey club rules, had sneaked alcohol onto the premises during previous visits and that the plaintiff did not pay for use of the sled or a lift ticket on the night of the accident. Describing the plaintiffs trip down the slope as an irresponsible "joyride," he stated that he felt sorry both for the plaintiff and his family because of what the plaintiff had put them through.

During the trial's evidentiary phase, the plaintiff's counsel queried Taylor about his deposition, specifically, his allegations that the plaintiff did not pay for using the sled and that he was under the influence of alcohol and drugs. Taylor testified that he had had a previous run-in with the plaintiff and that the plaintiff had told him after the accident: "My father is going to kill me; I wasn't even supposed to be here tonight." Later in the trial, the plaintiffs mother testified that her husband was a Superior Court judge. When the plaintiff took the stand, he also testified that his father was a Superior Court judge, like the trial judge,⁴ and a "good dad." At counsel's request, he pointed to his father, who was sitting in the courtroom, so that the jurors could see him. When Taylor cross-examined the plaintiff, he alluded to the plaintiffs possible illegal use of alcohol on the premises, which the plaintiff denied.

Another witness for the plaintiff, Peter Hughes, a former Woodbury town planner,⁵ testified that Taylor's facility had been subject to several cease and desist orders during his tenure, that Taylor had "a history with the town going back some twenty or twenty-five years," that a review of the records showed that since 1982 Taylor had had repeated disputes with the town involving concerts at his facility, that he believed Taylor did not consider himself bound by town zoning laws and that a...