Sutera v. Natiello , 189 Conn. App. 631 ( 2019 )

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NATHANIEL SUTERA v. DEBORAH NATIELLO ET AL.
(AC 40749)
Lavine, Bright and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, N and T, for
negligence in connection with personal injuries he suffered when, while
conducting repairs on a building owned by N, he fell from scaffolding
erected on the side of the building. The plaintiff filed a four count
complaint wherein he alleged two counts of common-law negligence
and separately pleaded two counts pursuant to the doctrine of res ipsa
loquitur. In their answers, the defendants denied that they were negligent
and, as a special defense, alleged that the plaintiff’s own negligence was
the proximate cause of his injuries. At trial, the plaintiff requested that
the court charge the jury on the theory of res ipsa loquitur, and, over
the defendants’ objection, the court instructed the jury on that theory.
The court also submitted to the jury a single verdict form and a set of
interrogatories that did not request separate verdicts as to each count
of the complaint. Thereafter, the jury returned a general verdict in favor
of the plaintiff, and also found the plaintiff to be 50 percent contributorily
negligent. Subsequently, the defendants filed a motion to set aside the
verdict or for remittitur, arguing that the res ipsa loquitur charge was
improper and that the jury’s verdict had been improperly swayed by its
sympathy for the plaintiff. The trial court denied the defendants’ motion
to set aside the verdict or for remittitur, and the defendants appealed
to this court. Held:
1. The general verdict rule precluded review of the defendants’ claim that
the trial court committed harmful error by instructing the jury on the
doctrine of res ipsa loquitur; the defendants’ claim that the general
verdict rule should not apply because interrogatories were submitted
to the jury was unavailing, as the defendants failed to provide interrogato-
ries to the jury that disclosed the grounds for its decision and, thus,
the fact that interrogatories were submitted to the jury, by itself, was
insufficient to preclude application of the rule, and given that the plain-
tiff’s complaint alleged separate counts under premises liability and res
ipsa loquitur, that the defendants subsequently denied each of those
counts in their answer, that the jury returned a general verdict for the
plaintiff, and that the error claimed on appeal implicated only one of
the possible routes the jury could have taken in reaching its verdict,
the general verdict rule applied.
2. The trial court did not abuse its discretion in denying the defendants’
motion to set aside the verdict or for remittitur; the defendants failed
to identify anything in the record to support their claim that the jury
was influenced by sympathy for the plaintiff, who is a paraplegic as a
result of the injuries he sustained, and the fact that the jury found the
plaintiff partially responsible for his injuries suggested that it was not
swayed by sympathy and that it did not return a compromise verdict.
Argued January 8–officially released May 7, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendants’ alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of New London and tried to a jury
before Bates, J.; verdict for the plaintiff; thereafter, the
court denied the defendants’ motion to set aside the
verdict or for remittitur and rendered judgment for the
plaintiff, from which the defendants appealed to this
court. Affirmed.
Cassie N. Jameson, with whom, on the brief, was
David S. Williams, for the appellants (defendants).
Dana M. Hrelic, with whom were Brendon P. Lev-
esque and, on the brief, Christopher J. Murray, for the
appellee (plaintiff).
Opinion
PELLEGRINO, J. This appeal arises from a substan-
tial 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 Natie-
llo. The defendants, Natiello and Timothy Sutera (Timo-
thy 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 unreview-
able and the second claim is without merit. We, there-
fore, 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 plain-
tiff 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 injur-
ies. 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 regard-
ing 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 acci-
dent.2 The expert further testified that he did not ‘‘know
every single component, exactly at what point [the scaf-
folding] 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 defen-
dant 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 circum-
stances, 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 improp-
erly swayed by sympathy for the plaintiff, resulting in
a compromise verdict. The court denied the defendants’
motion. This appeal followed. Additional facts and pro-
cedural 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 defen-
dants’ claim is barred by the general verdict rule. Specif-
ically, 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 instruc-
tional error is unpreserved and not reviewable.
The following facts and procedural history are rele-
vant to our resolution of the claim. In opposing the
defendants’ motion to set aside the verdict or for remitti-
tur, the plaintiff argued that the res ipsa loquitur instruc-
tion 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 memoran-
dum 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 circum-
stances where the factual basis for negligence was
clear, whereas, in the present case, there were no inde-
pendent 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 pro-
priety 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 990 (2006). ‘‘[A]pplication of the
rule [is limited] to the following scenarios: (1) denial
of separate counts of a complaint; (2) denial of separate
defenses pleaded as such; (3) denial of separate legal
theories of recovery or defense pleaded in one count
or defense, as the case may be; (4) denial of a complaint
and pleading of a special defense; and (5) denial of a
specific defense, raised under a general denial, that had
been asserted as the case was tried but that should
have been specially pleaded.’’ (Emphasis added.) Curry
v. Burns, 225 Conn. 782, 801, 626 A.2d 719 (1993). ‘‘A
party desiring to avoid the effects of the general verdict
rule may elicit the specific grounds for the verdict by
submitting interrogatories to the jury. Alternatively, if
the action is in separate counts, a party may seek sepa-
rate verdicts on each of the counts.’’ Id., 786.
In response to the plaintiff’s claim that the general
verdict rule bars review of their claim on appeal, the
defendants essentially argue that the general verdict
rule should not apply because interrogatories were, in
fact, submitted to the jury, which precludes application
of the rule. As this court noted in Perez v. Cumba, 138
Conn. App. 351, 363, 51 A.3d 1156, cert. denied, 307
Conn. 935, 56 A.3d 712 (2012), however, ‘‘[i]t is not the
mere submission of interrogatories that enables us to
make that determination; rather, it is the submission
of properly framed interrogatories that discloses the
grounds for the jury’s decision. . . . [T]he efficacy of
the interrogatories and the preclusion of the general
verdict rule [therefore] depends on their being framed
in such a way that this court is able to determine the
grounds for the jury’s decision.’’ (Emphasis omitted;
internal quotation marks omitted.) Id., quoting Fabrizio
v. Glaser, 38 Conn. App. 458, 463, 661 A.2d 126 (1995),
aff’d, 237 Conn. 25, 675 A.2d 844 (1996). Despite the
defendants’ claim that application of the rule is inappro-
priate under the present circumstances, it is not in dis-
pute that the defendants failed to provide
interrogatories to the jury that disclosed the grounds for
its decision.8 Accordingly, the fact that interrogatories
were submitted to the jury, by itself, is insufficient to
preclude the application of the rule.
Next, the defendants claim that, because the doctrine
of res ipsa loquitur is not a separate cause of action,
the general verdict rule should not apply, despite the
fact that the plaintiff pleaded it in separate counts. The
following legal principles are relevant to the resolution
of the defendants’ claim. In Curry v. Burns, our
Supreme Court ‘‘reconsidered the applicability of the
general verdict rule in an endeavor to make it more
certain ‘as to when it applies and when it does not.’ ’’
Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 275
n.16, 698 A.2d 838 (1997), quoting Curry v. Burns,
supra, 225 Conn. 800. In doing so, the court articulated
five distinct scenarios wherein the rule would apply.
The first of those five scenarios is the denial of separate
counts of a complaint. In the present case, it is undis-
puted that the plaintiff’s complaint alleged separate
counts under premises liability and res ipsa loquitur,
and that the defendants subsequently denied each of
those counts in their answer. The defendants’ claim,
therefore, falls squarely within the first scenario con-
templated by Curry.9 Given that the jury returned a
general verdict for the plaintiff and the error claimed
on appeal implicates only one of the possible routes
the jury could have taken in reaching its verdict, we
conclude, for the aforementioned reasons, that the gen-
eral verdict rule applies here and, thus, prevents us
from reviewing the defendants’ claim.10
II
The defendant next claims that the jury improperly
was influenced by sympathy for the plaintiff given the
nature of his injury, as evidenced by its verdict and the
resulting award. Specifically, the defendants argue that
the jury’s finding of comparative negligence is indicative
of a compromise verdict. We disagree.
‘‘When reviewing both a motion to set aside the ver-
dict and a motion for remittitur, the trial judge must
review the evidence from the viewpoint of sustaining
the verdict.’’ Levine v. 418 Meadow Street Associates,
LLC, 163 Conn. App. 701, 712, 137 A.3d 88 (2016). ‘‘In
determining whether to order remittitur, the trial court
is required to review the evidence in the light most
favorable to sustaining the verdict. . . . Upon complet-
ing that review, the court should not interfere with the
jury’s determination except when the verdict is plainly
excessive or exorbitant. . . . The ultimate test which
must be applied . . . is whether . . . the verdict so
shocks the sense of justice as to compel the conclusion
that the jury [was] influenced by partiality, prejudice,
mistake or corruption.’’ (Internal quotation marks omit-
ted.) Munn v. Hotchkiss School, 326 Conn. 540, 575–76,
165 A.3d 1167 (2017). We review a trial court’s decision
to grant or deny a motion to set aside a verdict as
excessive as a matter of law under an abuse of discre-
tion standard. Id., 574.
In the defendants’ motion to set aside the verdict or
for remittitur, they claimed that the jury ‘‘clearly found
the plaintiff to be responsible for his accident, but
instead of turning him away [they] made an award of
virtually the full amount . . . argued by his attorney
. . . . The jury was unable to do this. . . . [I]t is obvi-
ous that the jury chose the amount of damages it
endeavored to award . . . and only then sought to find
support for that award.’’
On appeal, the defendants do not direct our attention
to any part of the record that supports their claim that
the jury was influenced by sympathy for the plaintiff
or that its verdict constitutes a compromise verdict,
other than to note that the jury found the plaintiff com-
paratively negligent.11 The defendants, however, do
direct our attention to this court’s decision in Niles v.
Evitts, 16 Conn. App. 696, 548 A.2d 1352 (1988), in
support of their claim. In Niles, this court addressed
the nature of the remand in a case where ‘‘liability and
damages [were] ‘inextricably interwoven’ ’’; id., 700; a
legal issue materially distinct from the defendants’
claim now presented on appeal. In the court’s discus-
sion of the issue, however, it made the following rele-
vant observation: ‘‘[T]here is little fear that the jury was
motivated by sympathy for one party since it found
both parties had been negligent.’’ (Emphasis added.)
Id. In spite of the defendants’ general assertion that
Niles supports their claim that the verdict was affected
by improper considerations, Niles supports the proposi-
tion that when a jury finds a plaintiff comparatively
negligent, it also can weigh against any suggestion that
the jury was influenced by sympathy. We agree with
the court’s reasoning in Niles and conclude that the
fact that the jury found the plaintiff partially responsible
for his injuries suggests that the jury was not swayed
by sympathy and that it did not return a compromise
verdict. Consequently, we conclude that the court did
not abuse its discretion when it denied the defendants’
motion to set aside the verdict or for remittitur.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Timothy S. is Natiello’s husband and the plaintiff’s brother.
2
The following exchange occurred between the plaintiff’s counsel and
the plaintiff’s expert witness:
‘‘[The Plaintiff’s Counsel]: [B]ased on your involvement in this case, your
experience as a safety consultant, and your review of the materials in this
case, based on a reasonable degree of professional certainty, do you have
an opinion as to why the scaffolding fell over?
‘‘[The Witness]: Yes.
‘‘[The Plaintiff’s Counsel]: And what is your opinion?
‘‘[The Witness]: Starting with the fact it wasn’t secured, so it’s not a matter
of was it secured at the wrong level [or] in the wrong way. [It was] not
secured to the building, number one.’’
3
As we discuss more fully in footnote 10 of this opinion, the court’s res
ipsa loquitur charge did not conform to the law set forth by our Supreme
Court in Giles v. New Haven, 228 Conn. 441, 455, 636 A.2d 1335 (1994).
4
The first interrogatory listed on the verdict form, which in relevant part
mirrored the proposed verdict form submitted by the defendant, provided
the following: ‘‘Did the plaintiff prove by a preponderance of the evidence
that the defendants were negligent in any of the ways he alleged in his com-
plaint?’’
5
The jury awarded the plaintiff $7,208,534.66, in economic and noneco-
nomic damages, which the court reduced by 50 percent, resulting in a net
award of $3,604,267.33.
6
The defendants further argue that, because they did not have direct
control of the scaffolding at the time of the accident, the res ipsa loquitur
instruction was improper.
7
The defendants suggest that the court’s res ipsa loquitur instruction
resulted in an improperly framed premises liability instruction, which com-
pounded the harm created by the improper res ipsa loquitur charge. As the
court identified in its memorandum of decision addressing the defendants’
motion to set aside the verdict or for remittitur, the defendants were not
challenging the legal sufficiency of the premises liability instruction. More-
over, our review of the record does not reveal any timely challenge to the
court’s premises liability charge. Because the defendants attempt to raise
the issue for the first time on appeal as a predicate to their claim that the
improper res ipsa loquitur instruction was harmful, we decline to consider
it further. See State v. Perez, 87 Conn. App. 113, 118–19, 864 A.2d 52 (2005)
(claim of instructional error on appeal must be one stated at trial).
8
See footnote 4 of this opinion.
9
Moreover, had the defendants wanted to avoid any possible ambiguity
in the verdict, nothing prevented them from moving to strike the third and
fourth count for failure to plead a separate cause of action. They also could
have requested separate verdicts for each count or interrogatories asking
the jury to explain the grounds for its verdict, as our Supreme Court advised
in Curry. See Curry v. Burns, supra, 225 Conn. 786.
10
Although we decline to review the defendants’ claim of instructional
error, clarification is needed as to the court’s res ipsa loquitur instruction.
‘‘[T]he doctrine of res ipsa loquitur . . . when properly invoked, allows the
jury to infer negligence based on the circumstances of the incident even
though no direct evidence [of negligence] has been introduced. . . . Where
there is evidence of specific negligence on the part of the defendant which
would support a finding by the jury that such negligence was a proximate
cause of the plaintiff’s injury, [however], the jury should not be instructed
on the doctrine of res ipsa loquitur. . . . [A] res ipsa loquitur instruction
is not appropriate where the plaintiff is not relying solely on circumstantial
evidence, but instead alleges and introduces into evidence specific acts of
negligence by the defendant.’’ (Citations omitted; emphasis added; footnote
omitted; internal quotation marks omitted.) Pineau v. Home Depot, Inc., 45
Conn. App. 248, 257–58, 695 A.2d 14 (1997), appeal dismissed, 245 Conn.
422, 713 A.2d 825 (1998).
Moreover, Connecticut is a modified comparative negligence jurisdiction.
See General Statutes § 52-572h. Our Supreme Court has held that compara-
tive negligence does not preclude the application of res ipsa loquitur.
‘‘[W]henever a court can reasonably find that the event is one that ordinarily
would not have occurred in the absence of someone’s negligence, and that
the defendant’s inferred negligence was more probably than not a cause of
the injury, the doctrine of res ipsa loquitur applies even though the plaintiff’s
negligence may also have contributed to the injury. If a trial court determines
that the doctrine of res ipsa loquitur is applicable, it should thereafter
instruct the jury to compare the negligence of the plaintiff, if any, with that
of the defendant to decide what percentages to attribute to each party
consistent with the comparative negligence statute.’’ Giles v. New Haven,
228 Conn. 441, 455, 636 A.2d 1335 (1994).
11
Connecticut is a modified comparative negligence jurisdiction. See foot-
note 10 of this opinion. The defendants’ claim that a finding of comparative
negligence is somehow indicative of a compromise verdict is without merit.