Sutera v. Natiello

189 Conn.App. 631

208 A.3d 1241

Nathaniel SUTERA

v.Deborah NATIELLO et al.

AC 40749

Appellate Court of Connecticut.

Argued January 8, 2019

Officially released May 7, 2019

Cassie N. Jameson, with whom, on the brief, was David S. Williams, Norwich, for the appellants (defendants).

Dana M. Hrelic, with whom were Brendon P. Levesque, Hartford, and, on the brief, Christopher J. Murray, Hamden, for the appellee (plaintiff).

Lavine, Bright and Pellegrino, Js.

PELLEGRINO, J.

This appeal arises from a substantial monetary judgment in favor of the plaintiff, Nathanial Sutera, who sustained serious injuries when he fell from scaffolding erected on the side of a three story building owned by the defendant Deborah Natiello. The defendants, Natiello and Timothy Sutera (Timothy S.),¹ appeal following the trial court's denial of their motion to set aside the verdict or for remittitur. On appeal, the defendants claim that (1) the trial court committed harmful error by giving a jury instruction on the doctrine of res ipsa loquitur, and (2) the jury verdict was improperly influenced by sympathy for the plaintiff. We conclude that the first claim is unreviewable and the second claim is without merit. We, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the summer of 2012, the plaintiff agreed to assist Timothy S. in repairing the soffit on the building. Timothy S. supplied the majority of the equipment, including the scaffolding and ladders, needed to make the repairs. Timothy S. repaired the soffit while standing on the scaffolding using materials that the plaintiff had prepared at ground level. At the time of the accident, Timothy S. and the plaintiff had been working on the project for approximately three weeks. The day before the accident, they moved the scaffolding and ladders to the opposite side of the building, but due to the lateness of the hour, they decided to stop working and continue the following day.

Timothy S. and the plaintiff agreed to begin work at approximately 12 p.m. on September 24, 2012, the day of the accident. The plaintiff arrived at the property at the agreed upon time, but Timothy S. was delayed. At approximately 2 p.m., the plaintiff went to lunch because Timothy S. still had not arrived. During his lunch break, the plaintiff consumed one twenty-four ounce beer with his meal. When he finished his meal, he returned to the property and observed that Timothy S. still was not present. The plaintiff elected to climb the ladder to access the scaffolding and examine the soffit that they would be repairing next. While the plaintiff was on the scaffolding, it gave way, and he and the scaffolding fell to the ground. A tenant who heard the crash found the plaintiff lying on the ground. He was taken to the hospital where he was treated for his injuries. A blood test taken at the hospital revealed that his blood alcohol content was between 0.07 and 0.10 percent. As a result of the fall and injuries he sustained, the plaintiff is a paraplegic.

On October 14, 2014, the plaintiff served a four count complaint on the defendants. The first two counts set forth specific allegations of negligence, as to each defendant, regarding how the scaffolding was erected and secured on the premises, and how the defendants failed to train, warn, and supervise the plaintiff regarding use of the scaffolding. The third and fourth counts alleged negligence, again as to each defendant, under the doctrine of res ipsa loquitur. The defendants pleaded a number of special defenses alleging, inter alia, that the plaintiff's own actions were the proximate cause of his injuries and that he failed to exercise proper care when using the scaffolding. During a six day jury trial, the plaintiff and Timothy S. testified that they were uncertain whether the scaffolding was attached securely to the building on the day of the accident. The plaintiff's expert witness, however, testified that, on the basis of a reasonable degree of professional certainty, the scaffolding was not secured at the time of the accident.² The expert further testified that he did not "know every single component, exactly at what point [the scaffolding] started to tilt or started to fail, but ... one way or the other ... [the scaffolding] was not erected properly or we [would not] be here today."

Before the conclusion of evidence, the plaintiff's counsel requested that the court charge the jury on the theory of res ipsa loquitur in addition to premises liability, stating: "[T]here's testimony from the defendant that he set up the scaffolding and [the plaintiff's] involvement in the setup was relatively minor in that he only brought over pieces of the components and [roped] them up to the defendant, who after receiving the components, put it together.... [R]egardless of [the plaintiff's] use of the scaffolding, that's not the cause of why it collapsed. The reason why it collapsed was because it was not secured to the house, so there is sufficient evidence for a res ipsa [loquitur] charge to go to the jury."

The defendants objected to this charge, arguing that an instruction on res ipsa loquitur was inappropriate given the evidence presented at trial. Specifically, they contended that because the plaintiff's expert testified with respect to the cause of the collapse, there was direct evidence of the defendants' negligence presented to the jury sufficient to preclude an instruction on res ipsa loquitur. Despite the defendants' objection, the court included an instruction on the doctrine of res ipsa loquitur, which provided: "[I]n certain circumstances, the very happening of an accident may be an indication of negligence. We have the doctrine called res ipsa loquitur which, in Latin, means the thing speaks for itself. It is a doctrine that infers negligence from the very nature of the injury in the absence of direct evidence in how the defendants behaved.... [The] [p ]laintiff's voluntary act or neglect contributing to the occurrence, [however ], prevents the inference from being drawn ."³ (Emphasis added.) After the court instructed the jury, the jury was given a single verdict form and a set of interrogatories that did not request separate verdicts as to each count.⁴ The jury returned the following verdict: "[T]he jury finds the issues for the plaintiff, Nathaniel Sutera, as against the defendants, Deborah Natiello and Timothy [S.] .... Comparative fault .... The plaintiff, Nathaniel Sutera, 50 percent; the defendants, Deborah Natiello and Timothy [S.], 50 percent."⁵ (Emphasis added.)

After the jury returned the verdict, the defendants filed a motion to set aside the verdict or for remittitur, claiming that the res ipsa loquitur charge was improper because, among other things, direct evidence of the defendants' negligence had been presented at trial. The defendants further argued that the verdict was improperly swayed by sympathy for the plaintiff, resulting in a compromise verdict. The court denied the defendants' motion. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendants first claim that the giving of the jury instruction on the doctrine of res ipsa loquitur constitutes harmful error. Specifically, they argue that, among other things, because there was direct evidence of the defendants' negligence presented at trial, the court erred in concluding that the doctrine applied.⁶ Moreover, the defendants argue that the instruction on the doctrine of res ipsa loquitur was harmful because it likely misled the jury as to the burden of proof and, at a minimum, must have confused the jury.⁷ In response, the plaintiff argues that review of the defendants' claim is barred by the general verdict rule. Specifically, the plaintiff claims that, because the defendants assented to a general verdict form and did not request specific interrogatories with respect to each count, the general verdict rule applies. Under the unique facts of this case, where res ipsa loquitur was pleaded as a separate cause of action, without objection from the defendants, and separate jury interrogatories asking the jury to set forth the basis of its verdict were not provided to the jury, we conclude that the general verdict rule applies and, therefore, the defendants' claim of instructional error is unpreserved and not reviewable.

The following facts and procedural history are relevant to our resolution of the claim. In opposing the defendants' motion to set aside the verdict or for remittitur, the plaintiff argued that the res ipsa loquitur instruction was proper given the underlying facts of the case and, additionally, that review of the defendants' claim was barred by the general verdict rule. In its memorandum of decision, the court agreed with the plaintiff and explained that the case law in which the application of the doctrine was deemed improper addressed circumstances where the factual basis for negligence was clear, whereas, in the present case, there were no independent witnesses and the plaintiff had little memory of the event. The court also agreed that, despite any error with respect to the res ipsa loquitur charge, the jury's verdict could be upheld under the proper and unchallenged premises liability theory of recovery. The court stated: "The defendants do not challenge the propriety of the [verdict on the] negligence counts, just the res ipsa [loquitur] counts. Even if the res ipsa [loquitur] counts should have been [stricken] ... the verdict should be sustained under the general verdict rule."

"The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict." (Internal quotation marks omitted.) Green v. H.N.S. Management Co. , 91 Conn. App. 751, 754, 881 A.2d 1072 (2005), cert. denied, 277 Conn. 909, 894 A.2d...