Sturgeon v. Sturgeon

971 A.2d 691

114 Conn.App. 682

Scott T. STURGEON v. Jeffrey STURGEON et al.

No. 29619.

Appellate Court of Connecticut.

Argued January 13, 2009.

Decided June 2, 2009.

William S. Palmieri, New Haven, for the appellant (plaintiff).

Edward W. Gasser, with whom, on the brief, was Lauren E. Barber, for the appellee (defendant Jeffrey Sturgeon).

LAVINE, BEACH and STOUGHTON, Js.

LAVINE, J.

In this negligence action, the plaintiff, Scott T. Sturgeon, appeals from the trial court's judgment rendered after a jury verdict in favor of the defendant Jeffrey Sturgeon.¹ On appeal, the plaintiff claims that the court improperly (1) denied his motion to set aside the jury's verdict and for a new trial on the ground that the jury could not have reached its conclusion reasonably and legally, (2) denied his motion on the basis of improper remarks made to the jury by the defendant's counsel during closing arguments and (3) admitted a hearsay statement, limited the plaintiff's right to cross-examine the witness regarding that statement and failed to provide curative instructions to the jury. We affirm the trial court's judgment regarding the first claim on the basis of the general verdict rule. We affirm the judgment regarding the second claim because we conclude that the court did not abuse its discretion when it denied the plaintiff's motion to set aside the verdict and for a new trial. We decline to review the plaintiff's third claim because he failed to preserve it for appeal.

The following background and procedural history are relevant to our consideration of the plaintiff's appeal. The plaintiff and the defendant are brothers. On August 10, 2005, the plaintiff, a professional carpenter, was helping the defendant repair damage on the defendant's house. While the plaintiff was on a ladder, at the height of between fourteen and sixteen feet, the ladder kicked out, and the plaintiff fell to the ground. He struck his leg on a fence surrounding a dog pen in which the ladder had been placed and sustained serious injuries that required surgery. At the time of the plaintiff's fall, the defendant was vacuuming the area in front of his garage and did not witness the incident.

The plaintiff commenced a negligence action against the defendant. On November 21, 2007, after a four day trial, the jury returned a verdict in favor of the defendant. On November 30, 2007, the plaintiff filed a motion to set aside the verdict and for a new trial or judgment notwithstanding the verdict. The court denied the plaintiff's motion on January 14, 2008. On February 1, 2008, the plaintiff appealed from the court's judgment in favor of the defendant and its denial of the motion to set aside the verdict and for a new trial. Further facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly denied his motion to set aside the verdict and for a new trial on the ground that the jury legally and reasonably could not have reached its conclusion. The plaintiff's principal argument² in support of this claim is that the ultimate issue in the case, namely, whether the plaintiff instructed the defendant to leave the ladder or the defendant negligently walked away while the plaintiff was on the ladder, could have been determined favorably only as to the plaintiff. The plaintiff argues that his impeachment of the defendant was successful and that the defendant's version of the events that led to the plaintiff's fall was not credible. We affirm the judgment of the court on the basis of the general verdict rule.

The following additional facts are relevant for our consideration of the plaintiff's claim. In count one of his complaint dated January 31, 2006, the plaintiff alleged that his injury was caused by the defendant's negligence. He further alleged that the defendant's negligence consisted of "negligently walking away while holding the ladder and allowing it to slip ... failing to properly maintain and hold the ladder ... failing properly and adequately to supervise and oversee the positing of the ladder ... [and] that the [d]efendant ... knew or should have known that if he walked away that the [p]laintiff would fall." The defendant, in his amended answer, denied liability and asserted as a special defense the plaintiff's contributory negligence. The defendant alleged that the plaintiff's injury was due to the plaintiff's own negligence in that he "[i]mproperly set up the ladder ... [l]eaned the ladder against the fence without the top of the ladder resting against the house ... [f]ailed to move the ladder closer to the area he was working on so that he could reach the area in a safe manner; and ... [s]trained and leaned his body to the side of the ladder outside of the range of reasonable care in order to reach the area he was working on." At trial, the plaintiff and the defendant offered conflicting testimony regarding the events that led to the plaintiff's fall on August 10, 2005. Specifically, the plaintiff testified that he thought that the defendant was "footing"³ the ladder when it kicked out, causing him to fall. The defendant, on the other hand, testified that he left the ladder because the plaintiff had instructed him to go and vacuum the area where they were going to work next. In its charge, the court instructed the jury on both the defendant's denial of the allegation and his special defense of contributory negligence. In his appellate brief, the plaintiff argues that the ultimate issue is whether he instructed the defendant to leave the ladder.

"The general verdict rule operates when a jury deliberates and returns a general verdict without special interrogatories. Under the general verdict doctrine, an appellate court will presume that the jury found every issue in favor of the prevailing party ... and decline further appellate review. It operates, inter alia, where there is a denial of the allegations of a complaint and the raising of a special defense by the defendant, and the claimed error affects one but not the other.... Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed." (Citations omitted; emphasis added.) Jackson v. H.N.S. Management Co., 109 Conn.App. 371, 372-73, 951 A.2d 701 (2008).

In the present case, the defendant denied the plaintiff's allegation of negligence and pleaded the special defense of contributory negligence. The parties did not submit interrogatories to the jury. We are therefore unable to determine whether the jury found in favor of the defendant because the plaintiff failed to prove his allegation of negligence or because the defendant prevailed on his special defense of contributory negligence. The plaintiff does not claim any error regarding the defendant's special defense of contributory negligence, which was that the plaintiff improperly set up the ladder, leaned it against the fence without the top of the ladder resting against the house, failed to position it so that he could reach the area he was working on in a safe manner, and strained and leaned his body outside of the range of reasonable care. The plaintiff's only claim of error is that the jury could not have credited reasonably and legally the defendant's testimony that the plaintiff instructed him to leave and that he therefore did not negligently walk away without informing the plaintiff. The special defense of contributory negligence therefore could have provided an error free path to the jury's verdict, which precludes our review of the plaintiff's claim. See id., at 374, 951 A.2d 701; O'Brikis v. Supermarkets General Corp., 34 Conn.App. 148, 153, 640 A.2d 165 (1994) (general verdict rule precludes review when it is impossible to tell whether jury verdict was based on finding of absence of negligence or finding of contributory negligence).

II

The plaintiff's next claim is that the court abused its discretion in denying his motion to set aside the verdict and for a new trial on the ground that the defendant's counsel made improper remarks during closing argument to the jury. We disagree because we conclude that counsel's remarks during the argument were not improper.

The following additional facts are relevant for our consideration of the plaintiff's claim. On November 20, 2007, outside of the jury's presence, the court denied the defendant's motion for a directed verdict on the basis of the plaintiff's failure to provide expert testimony on the issues of the standard of care applicable to those engaged in the repair of a garage peak and the proximate cause of the plaintiff's injury. The court concluded that expert testimony was not required on those issues because they were not "outside ordinary abilities of a layperson to understand or visualize." The court stated that expert testimony could be helpful for either side but that it was not required for the plaintiff to make out a prima facie case on the issue of causation.

During closing arguments, the defendant's counsel stated: "So, one of the questions that you are going to have to decide is the proximate cause question ... if [the defendant], in fact, was footing the ladder, not putting all his weight against him.... The question is, had he been doing that, would the plaintiff still have fallen, being two hundred and some-odd pounds, fifteen feet up in the air, leaning over two to three feet? ... Now, you heard testimony from Dr. [Vipal] Dua.... What you didn't have is testimony from any type of an engineer or anyone of that nature ...." The plaintiff objected to the argument of the defendant's counsel, and the court stated: "I will allow both sides to argue on the basis of the evidence that was there and evidence that wasn't."

The defendant's counsel further told the jury: "But what you didn't have is the engineer to come in and testify that if [the defendant] had been doing that,...