R.I. Pools, Inc. v. Paramount Concrete, Inc.

149 Conn.App. 839

89 A.3d 993

R.I. POOLS, INC.

v.PARAMOUNT CONCRETE, INC.

No. 34363.

Appellate Court of Connecticut.

Argued Oct. 24, 2013.

Decided May 6, 2014.

Michael S. Taylor, for the appellant (defendant).

Raymond J. Plouffe, Jr., Shelton, for the appellee (plaintiff).

LAVINE, SHELDON and KELLER, Js.

KELLER, J.

The plaintiff, R.I. Pools, Inc., brought this action under the Connecticut Product Liability Act (act), General Statutes § 52–572m et seq., seeking damages against the defendant, Paramount Concrete, Inc., for having sold it an allegedly defective product that it used in its construction of several luxury swimming pools for homeowners in Fairfield County.¹ The defendant appealsfrom the judgment of the trial court, rendered following a jury trial, in favor of the plaintiff. The defendant claims that the court improperly (1) denied its motion to set aside the verdict, and (2) awarded the plaintiff punitive damages. We agree with the defendant that the jury's award of compensatory damages and the court's award of punitive damages must be reversed. Accordingly, we remand the matter to the trial court for a hearing in damages on the plaintiff's claim for compensatory damages, and a separate hearing to determine the plaintiff's award of punitive damages.²

By means of its amended complaint dated February 14, 2011, the plaintiff alleged that it purchased a concrete product, Shotcrete, from the defendant. The plaintiff installed the Shotcrete in several pools and spas that it built for homeowners in the course of its pool and spa construction business. The plaintiff alleged that the Shotcrete “has thus far cracked in at least seventeen pools,” causing property damage. The plaintiff, expressly invoking the act, alleged that the defendant was liable for all damages and losses it had sustained as a result of the defective Shotcrete, in that (1) “the Shotcrete should have been made with concrete sand only, not masonry sand or a combination of masonry sand and concrete sand”; (2) “the Shotcrete was improperly mixed”; (3) “the Shotcrete was made, distributed and/or delivered by machines and equipment that were not properly maintained, repaired and/or equipped”; (4) “improper amounts and/or grade of ingredients were utilized”; and (5) “[the defendant] failed to warn or advise [the plaintiff] of the foregoing and of the potential for danger and damage it posed to the pools and spas being constructed by [the plaintiff], as well as the potential for damages and losses to the surrounding real and personal property in the vicinity of these pools.”

The plaintiff alleged that, “even though [the defendant] knew or should have known that the Shotcrete it was selling was not in compliance with industry standards and deviated from product design requirements and recommendations, [the defendant] made representations to the contrary, thereby purposefully misleading its customers, including [the plaintiff], despite knowing that such customers were relying upon their representations and the purported quality and fitness of their product in building substantial construction projects, including pools, spas and other structures....” Furthermore, the plaintiff alleged that “[the defendant] operated a concrete/Shotcrete plant without personnel that had sufficient expertise and/or training in the proper mixture and/or amounts and/or grade of ingredients for Shotcrete, and/or proper delivery for Shotcrete when it knew or should have known that the operation of a concrete/Shotcrete plant without such sufficient expertise created a high probability of causing substantial injury to product users, and consumers, including the plaintiff, and their respective property.” On the basis of these allegations, as well as the allegations previously set forth, the plaintiff claimed that the defendant's course of conduct “was in reckless disregard for the safety of product users, consumers and the plaintiff and their respective property which were injured by the product ....”

The plaintiff alleged that, as a result of the defendant's defective product as well as its “egregious conduct,” it had sustained substantial financial losses and damages, “including the costs of repair and/or replacement of seventeen pools, spas, landscaping, and hardscaping, and the potential for additional losses and damages if cracking and other related failures occur in some or all of the other pools and spas it built with Shotcrete supplied by the defendant.” The defendant denied having sold the plaintiff a defective product and, by means of special defense, alleged that any losses sustained by the plaintiff had resulted from “its misuse, alteration and/or modification of the product at issue ....” ³

At trial, the plaintiff presented evidence of varying degrees of crack damage in nineteen completed swimming pools it had built using Shotcrete manufactured by and purchased from its subcontractor, the defendant.⁴ The plaintiff presented evidence that the cracks found in all of the pools at issue had been caused by Shotcrete that had not been mixed to a proper consistency, which, in turn, had led to excessive shrinking in completed pools. The defendant, denying that it had sold defective Shotcrete, attempted to prove that the cracking at issue had resulted from the defective construction practices of the plaintiff.

During closing argument, the plaintiff's attorney stated that the plaintiff wanted to “repair” and “rebuild” the pools at issue. During argument, he referred to a chart that was displayed as a visual aid that, among other things, described the location of each of the nineteen pools at issue as well as the amount of damages, whether past, present or both, that had been incurred or would be incurred by the plaintiff with regard to each pool. Referring to damage amounts specified for each of the nineteen pools at issue, the plaintiff's attorney referred to the evidence and explained the method by which his client had calculated its damages, and argued that the total amount of past and future damages supported by the evidence was $2,760,208.⁵ This amount, which included lost profits to the plaintiff as well as miscellaneous damages listed in the amount of $7680.64, was labeled as the “total” on the chart.

The plaintiff's attorney, however, cautioned that because the plaintiff was not seeking lost profits in its complaint, this “total” amount should be adjusted appropriately. Thus, the plaintiff's attorney argued that the amount of damages proven and sought by the plaintiff, minus lost profits, was $2,365,562. One of the issues submitted to the jury was whether the plaintiff was entitled to an award of punitive damages pursuant to the act and, during argument, the plaintiff's attorney argued in support of such an award.

During its charge, the court stated, in relevant part, that the jury was to consider evidence concerning the nineteen pools about which it had heard evidence and to complete the jury verdict forms, including interrogatories, provided to it. The court stated that part of the jury's obligation would be to provide a “breakdown of [damages related to] each of the nineteen pools about which [it] heard evidence.” The court instructed the jury that, in the event that it awarded the plaintiff damages, the amount of damages reflected in its completed interrogatories should be the same figure reflected on the plaintiff's verdict form. Following deliberations, the jury returned a verdict in favor of the plaintiff in the amount of $2,760,207.90, and found that the plaintiff was entitled to punitive damages.

By means of jury interrogatories, the jury, in the context of awarding a plaintiff's verdict, was asked to specify both the “total damages” and the defendant's percentage of fault for each of the nineteen pools for which damages were sought by the plaintiff. The completed interrogatories reflect that, with respect to each of the nineteen pools at issue, the jury found that the defendant was 100 percent at fault and the plaintiff was entitled to recover damages in the identical amount of $145,274.10. The completed interrogatory forms reflect that the jury did not award any “miscellaneous damages,” as had been requested by the plaintiff. The total damages were specified both in the interrogatories and on the plaintiff's verdict form as $2,760,207.90. After the verdict was announced, the jury was polled and each juror expressed his or her agreement with the verdict. The court did not conduct any further inquiry of the jury concerning its verdict.

Subsequently, the defendant filed a motion to set aside the verdict. Following a hearing, the court denied the motion. Later, the court awarded punitive damages in the amount of attorney's fees incurred by the plaintiff, less costs.⁶ The court denied the defendant's motion to reargue this decision. This appeal followed. Additional facts will be set forth as necessary.

I

First, on a variety of grounds, the defendant challenges the court's denial of its motion to set aside the verdict. Before addressing the defendant's arguments, we set forth our standard of review. “The standard of review governing our review of a trial court's denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence.... [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside [when] the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ... that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Weyant v. Kristy, 126...