Fisk v. Redding ( 2019 )

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GREGG FISK v. TOWN OF REDDING ET AL.
(AC 40216)
Sheldon, Elgo and Flynn, Js.*
Syllabus
The plaintiff, who had sustained injuries when he fell off of a municipal
retaining wall, sought to recover damages for absolute public nuisance
from the defendant town of Redding. He claimed that the town had
created a nuisance by constructing the retaining wall without a fence
on top of it, which thereby resulted in his fall and injuries. Following
a trial, the jury returned a verdict in favor of the town, which the trial
court accepted and recorded. Thereafter, the plaintiff filed a motion to
set aside the verdict, claiming that the jury’s responses to the first and
third interrogatories, in which it found that the wall was an inherently
dangerous condition but was not an unreasonable or unlawful use of the
land, were inconsistent. The trial court denied the motion and rendered
judgment in accordance with the verdict, from which the plaintiff
appealed to this court. Held:
1. The trial court abused its discretion in denying the plaintiff’s motion to
set aside the verdict, as the jury’s answers to the special interrogatories
in the verdict form were inconsistent and could not be harmonized: the
jury could not have determined that the alleged inherently dangerous
condition, the retaining wall without a fence, was both inherently danger-
ous and not an unreasonable use of the land, as there was no scenario
under which the jury reasonably could have determined, after concluding
that the retaining wall without a fence was inherently dangerous, that
the fact that the retaining wall lacked a fence served any utility to
either the town or the community, or that a weighing of all relevant
circumstances could make the use of the land for an unfenced wall that
is inherently dangerous and lacks any utility, reasonable, and, thus,
the jury’s response to the first interrogatory, that the condition was
inherently dangerous, was fatally inconsistent with its response to the
third interrogatory, that the town’s use of the land was not unreasonable;
furthermore, the trial court did not attempt to harmonize the jury’s
inconsistent answers to interrogatories by ordering the jury to return
to continue its deliberations and to consider its verdict in light of the
obvious inconsistency.
2. The plaintiff could not prevail on his claim that the trial court erred in
excluding evidence that following his accident, the town installed a
fence, which was based on his claim that evidence of the remedial repair
was admissible because the town did not voluntarily install the fence
but, rather, did so at the direction of the Department of Transportation;
under the applicable provision of the Connecticut Code of Evidence
(§ 4-7 [a]), evidence of measures taken after an event, which if taken
before the event would have made injury or damage less likely to result,
is inadmissible to prove negligence or culpable conduct in connection
with the event, the reasons behind that rule make clear that voluntariness
is not a factor, and although the plaintiff alleged that the evidence of
the subsequent fence was relevant to the jury’s determination of inherent
danger and proximate cause, the evidence of remedial measures was
inadmissible to prove the town’s liability for nuisance.
(One judge concurring in part and dissenting in part)
Argued November 14, 2018—officially released May 21, 2019
Procedural History
Action to recover damages for public nuisance,
brought to the Superior Court in the judicial district of
Fairfield, where the court, Kamp, J., granted the named
defendant’s motion to preclude certain evidence; there-
after, the matter was tried to the jury; verdict for the
named defendant; subsequently, the court denied the
plaintiff’s motions to set aside the verdict and for a new
trial, and rendered judgment in accordance with the
verdict, from which the plaintiff appealed to this court.
Reversed; new trial.
A. Reynolds Gordon, with whom was Frank A. DeNi-
cola, Jr., for the appellant (plaintiff).
Thomas R. Gerarde, with whom, on the brief, was
Beatrice S. Jordan, for the appellee (named defendant).
Opinion
FLYNN, J. The plaintiff, Gregg Fisk, appeals from the
judgment of the trial court rendered on a jury verdict
in favor of the defendant town of Redding.1 On appeal,
the plaintiff claims that the court erred in (1) denying
his motion to set aside the verdict and (2) excluding
evidence of subsequent remedial measures. We agree
with the plaintiff’s first claim but disagree with the
second.
The record reveals the following facts. A retaining
wall was constructed as part of the defendant’s ‘‘Street-
scape Project.’’ The project was funded by federal and
state grants, and the state Department of Transporta-
tion (department) supervised the construction. The
department’s design engineer supervisor approved the
construction of a five foot retaining wall without a
fence.2 During the construction phase of the project,
field conditions existed that necessitated the height of
the retaining wall to become taller than five feet, as the
driveway below it sloped downward. A wooden barrier
in the style of a Merritt Parkway guardrail was installed
several feet in distance from the retaining wall with
dense landscaping behind it.
The retaining wall was adjacent to the parking lot of
the Lumberyard Pub. On the evening of August 26, 2011,
at approximately 8:30 p.m., the plaintiff went to the
Lumberyard Pub for dinner and drinks. The plaintiff left
at approximately 2 a.m., after consuming approximately
five beers. In order to reach Main Street by a shortcut,
the plaintiff climbed over the guardrail and stepped
off the retaining wall. While traversing the unfenced
retaining wall, the plaintiff fell and injured his left leg
and ankle in many places.
The plaintiff brought an action against the defendant
sounding in absolute public nuisance and alleging that
he was injured when he fell off an unfenced retaining
wall that had a nearly six foot drop to Main Street
below.3 The defendant filed an answer and special
defenses, alleging, inter alia, assumption of the risk and
recklessness. Following trial, the jury returned a verdict
for the defendant, which the court, Kamp, J., accepted
and recorded. Thereafter, the plaintiff filed a motion to
set aside the verdict, and the court issued a memoran-
dum of decision denying the motion. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The plaintiff claims that the court erred when it
denied his motion to set aside the verdict because the
jury’s answers to the special interrogatories in the ver-
dict form were inconsistent. We agree.
The following additional facts are relevant to this
claim. The court charged the jury, prior to deliberations,
in part, as follows: ‘‘First, the plaintiff must prove that
the retaining wall was inherently dangerous . . . that
it had a natural tendency to create danger and to inflict
injury upon person or property. It is the condition itself
which must have a natural tendency to create danger
and inflict injury. You, as the trier of fact, must consider
all of the circumstances involved in determining
whether . . . the condition in that particular location
had a natural tendency to create danger and inflict
injury. Second, the plaintiff must prove that the danger
was a continuing one. . . . Third, the plaintiff must
prove that the use of the land, in this case the retaining
wall, was unreasonable or unlawful. In making a deter-
mination concerning the reasonableness of the use of
the land, all the surrounding factors must be considered.
Fourth, the plaintiff must prove that the condition inter-
feres with a right common to the general public. . . .
If you find that the plaintiff has proven the above ele-
ments of a public nuisance, next the plaintiff must prove
that the nuisance was a proximate cause of the injuries
suffered by [the plaintiff].’’ In explaining how to proceed
with the verdict forms and jury interrogatories, the
court stated: ‘‘[F]or example, you respond to question
one. If you answer no, as the instructions indicate, you
must return a verdict for the defendant, and you would
fill out the defendant’s verdict form and that would end
your deliberations. If you answer number one yes, as
the instructions indicate, then you go on to question
two, and you answer that question. After question two,
if you were to answer that question no, then you would
return a verdict for the defendant using the defendant’s
verdict form. If you answer yes, you continue to number
three. And you continue through the process until
you’ve reached your verdict either using one or the
other of the verdict forms. You necessarily also have
to complete the jury interrogatories at least completely
or to where you stop if you answer a question no.’’ The
court did not further explicate interrogatories six and
seven, which asked the jury to render special verdicts
as to whether the defendant had proved its special
defenses of recklessness and assumption of the risk.
Following the final charge of the court to the jury,
the court submitted seven interrogatories to the jury,
with the first and third as follows: ‘‘1. Has Plaintiff
proven to you, by a preponderance of the evidence,
that the condition complained of, the subject retaining
wall was inherently dangerous in that it had a natural
tendency to inflict injury on person or property? . . .
3. Has Plaintiff proven to you, by a preponderance of
the evidence, that the Defendant’s use of the land was
unreasonable or unlawful?’’4 During deliberations, the
jury presented the following question to the court: ‘‘If
we are not all in agreement on questions one and two
but are on question three, are we able to rule in favor
of the defendant?’’ (Emphasis omitted.) Thereafter,
counsel discussed the issue with the court outside the
presence of the jury, and the plaintiff’s attorney stated:
‘‘If some of them are saying that the wall was . . .
inherently dangerous and the danger was continuing,
then that means that it has to be unreasonable.’’ The
court did not agree and stated that the ‘‘law requires
that you, on behalf of your client, prove all four ele-
ments, and if you can’t prove each element then there’s
a defendant’s verdict.’’ The plaintiff’s counsel explained,
‘‘we don’t abandon our position,’’ to which the court
responded, ‘‘of course you don’t because you’re going
to write about this on appeal.’’ The plaintiff’s counsel
specifically took an exception to ‘‘the omission of the
words ‘without a fence’ after ‘retaining wall’ ’’ in the
court’s charge to the jury. He also had preserved the
issue in the plaintiff’s request to charge, dated July 25,
2016, which suggested that the court charged the jury
that ‘‘[t]he plaintiff must prove that the retaining wall
without a fence had a natural tendency to create danger
and to inflict injury upon person or property.’’ (Internal
quotation marks omitted.)
Following the colloquy with counsel, the court
responded to the jury’s question as follows: ‘‘Ladies and
gentlemen, I instructed you on the law and you have
my charge as a court exhibit. And the plaintiff has the
burden of proof, as I indicated in my charge, to prove
essentially four elements of an absolute public nuisance
. . . . If the jury can unanimously . . . agree that the
plaintiff has not proven one of those four elements and
you can agree upon that, and in this case if it’s number
three and you so indicate on your jury verdict interroga-
tories and you check that unanimously in the negative,
then you . . . can return a verdict in . . . favor of the
defendant. But you must all unanimously agree that
[the plaintiff] has not proven one element of the cause
of action.’’
Following deliberations, the jury responded in the
affirmative to jury interrogatories one and two and in
the negative to the third jury interrogatory. The plaintiff
moved to set aside the defendant’s verdict, arguing that
the jury’s responses to the first and third interrogato-
ries, in which it found that the wall was an inherently
dangerous condition but was not an unreasonable or
unlawful use of the land, were inconsistent. The court
denied the motion, reasoning that the ‘‘jury’s responses
to the interrogatories were not inconsistent because
there was evidence that allowed the jury to determine
that, although the wall was unreasonably dangerous, it
was not an unreasonable use of the land.’’
‘‘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 which, in the court’s opinion,
is against the law or the evidence. . . . [The trial court]
should not set aside a verdict where it is apparent that
there was some evidence upon which the jury might
reasonably reach [its] conclusion, and should not refuse
to set it aside where 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.) Kumah
v. Brown, 160 Conn. App. 798, 803, 126 A.3d 598, cert.
denied, 320 Conn. 908, 128 A.3d 953 (2015).
‘‘When a claim is made that the jury’s answers to
interrogatories in returning a verdict are inconsistent,
the court has the duty to attempt to harmonize the
answers.’’ (Internal quotation marks omitted.) Suarez
v. Dickmont Plastics Corp., 242 Conn. 255, 270, 280,
698 A.2d 838 (1997). The plaintiff pleaded that the nui-
sance was absolute. ‘‘[I]n order to prevail on a claim
of nuisance, a plaintiff must prove that: (1) the condition
complained of had a natural tendency to create danger
and inflict injury upon person or property; (2) the dan-
ger created was a continuing one; (3) the use of the land
was unreasonable or unlawful; [and] (4) the existence of
the nuisance was [a] proximate cause of the [plaintiff’s]
injuries and damages. . . . [W]here absolute public
nuisance is alleged, the plaintiff’s burden includes two
other elements of proof: (1) that the condition or con-
duct complained of interfered with a right common to
the general public . . . and (2) that the alleged nui-
sance was absolute, that is, that the defendants’ inten-
tional conduct, rather than their negligence, caused the
condition deemed to be a nuisance.’’ (Citations omitted;
internal quotation marks omitted.) State v. Tippetts-
Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d
688 (1987).
‘‘Whether an interference is unreasonable in the pub-
lic nuisance context depends . . . on (a) [w]hether the
conduct involves a significant interference with the pub-
lic health, the public safety, the public peace, the public
comfort or the public convenience, or (b) whether the
conduct is proscribed by [law] . . . . The rights com-
mon to the general public can include, but certainly are
not limited to, such things as the right to use a public
park, highway, river or lake.’’ (Internal quotation marks
omitted.) Kumah v. Brown, supra, 160 Conn. App. 805.
‘‘The test of unreasonableness is essentially a weighing
process, involving a comparative evaluation of conflict-
ing interests in various situations according to objective
legal standards.’’5 (Internal quotation marks omitted.)
Walsh v. Stonington Water Pollution Control Author-
ity, 250 Conn. 443, 456, 736 A.2d 811 (1999), citing 4
Restatement, Torts § 826, comment (b) (1939). One of
those factors is utility. ‘‘Reasonableness in the nuisance
context weighs the utility of the interference with the
public right against the degree or severity of the interfer-
ence. See 4 Restatement (Second), Torts § 826, p. 119
(1979) (‘[a]n intentional invasion of another’s interest
in the use and enjoyment of land is unreasonable if
. . . the gravity of the harm outweighs the utility of
the actor’s conduct’); see also 58 Am. Jur. 2d 632–33,
Nuisances § 79 (2012) (‘the court must balance the grav-
ity of the harm to the plaintiff against the utility of the
defendant’s conduct both to the defendant and to the
community’). Such considerations are germane to
deciding whether an interference with public safety is
significant.’’ Kumah v. Brown, supra, 806 n.6.
In Kumah v. Brown, supra, 160 Conn. App. 798, the
plaintiff driver collided with a fire truck that had been
positioned diagonally across Interstate 95 in response
to a tractor trailer that had rolled over and was leaking
diesel fuel. Id., 800–801. The plaintiff driver brought an
action sounding in negligence and public nuisance. Id.,
801. The plaintiffs argued on appeal that ‘‘the court
erred in failing to set aside the jury’s verdict because
the jury’s finding that the defendant was negligent was
inconsistent with its express finding that the defen-
dant’s use of the land was not unreasonable.’’ Id., 802.
This court concluded that ‘‘[i]t does not follow that
simply because the jury found, as to one or more of
the alleged acts or omissions, that the defendant had
breached its duty to act as an ordinarily prudent person,
it then necessarily had to find that the defendant’s use
of the land was unreasonable in the circumstances.’’
Id., 804. This court further concluded: ‘‘The jury could
have found, for example, that a reasonably prudent
town would have added more traffic cones or placed
them differently, but that it was not unreasonable over-
all, given the emergency, for the town to interfere with
the public’s access to the highway generally by placing
the fire truck in front of the disabled tractor trailer and
generally guarding the scene. The interrogatories were
not necessarily inconsistent; therefore, the court did
not abuse its discretion in denying the plaintiffs’ motion
to set aside the verdict.’’ (Footnote omitted.) Id.,
806–807.
We are presented with the question of whether the
jury’s response to the first interrogatory, that the condi-
tion was inherently dangerous, is fatally inconsistent
with its response to the third interrogatory, that the
defendant’s use of the land was not unreasonable.6 In
his complaint, the plaintiff alleged that the defendant
constructed a retaining wall that had a precipitous drop
of approximately six feet and was not fenced. The plain-
tiff claims that the wall was inherently dangerous, con-
stituted a public nuisance, and that he injured himself
when he fell off the retaining wall. The issue in this
case, as it was tried and argued below, was not whether
the defendant could build a wall, but whether it could
erect an unfenced wall, without thereby creating a pub-
lic nuisance. In analogous settings, such as highway
defect or premises liability cases, where a particular
defect must be proved, what must be established is not
a condition that might give rise to the defect, but the
existence of the very defect that caused the injury, such
as a pothole in a highway or a broken stair on someone’s
premises. See, e.g., DiPietro v. Farmington Sports
Arena, LLC, 306 Conn. 107, 49 A.3d 951 (2012). In the
present case, the condition which the plaintiff claims
to have constituted a nuisance was the retaining wall
without a fence.
The court instructed the jury on the ‘‘reasonable use’’
element of public nuisance that it was to consider ‘‘all
the surrounding factors.’’ Although there was evidence
of landscaping and a Merritt Parkway style barrier sev-
eral feet from the approximately five foot tall wall,
the jury nonetheless found the wall to be inherently
dangerous. Evidence that the plaintiff was intoxicated,
wore flip-flops, walked over the Merritt Parkway barrier
and jumped off the wall, does not pertain to the question
in the third interrogatory as to whether the defendant’s
use of the land was reasonable. ‘‘[T]he only practical
distinction between an absolute nuisance and one
grounded in negligence is that contributory negligence
is not a defense to the former but may be as to the
latter.’’ (Internal quotation marks omitted.) Quinnett
v. Newman, 213 Conn. 343, 349, 568 A.2d 786 (1990),
overruled on other grounds by Craig v. Driscoll, 262
Conn. 312, 813 A.2d 1003 (2003). That evidence might
well pertain to the defendant’s special defenses of reck-
lessness and assumption of the risk, but the jury did
not reach those issues. The issue of utility comes into
play logically, not about whether the wall itself had
some use to hold back the earth, but whether there was
any useful public purpose to erecting the wall without
a fence atop it, which is the very defect that the plaintiff,
in his complaint, supporting evidence, and argument to
the jury, claims to have been the nuisance that proxi-
mately caused his injuries. In this case, as a matter of
law, the jury could not have determined that the
retaining wall without a fence was both inherently dan-
gerous and not an unreasonable use of the land. A wall
with or without a fence has the same capacity to hold
back earth. The condition at issue is not the wall itself
or the Streetscape Project, but the wall without a fence
atop it. The inherently dangerous condition of the wall
without a fence has no utility to stabilize soil. In Kumah,
a jury reasonably could have found that the fire truck
placed diagonally across an interstate was not an unrea-
sonable use of the land given the utility of the fire truck
in the emergency situation. See Kumah v. Brown, supra,
160 Conn. App. 806–807. In the present case, there is
no scenario under which the jury reasonably could have
determined, after concluding that the retaining wall
without a fence was inherently dangerous, that the fact
that the retaining wall lacked a fence served any utility
to either the defendant or the community, or that a
weighing of all relevant circumstances could make the
use of the land for an unfenced wall that is inherently
dangerous and lacks any utility, reasonable. Under the
circumstances of this case, the jury’s answers to inter-
rogatories one and three are inconsistent. In Bilodeau
v. Bristol, 38 Conn. App. 447, 455, 661 A.2d 1049, cert.
denied, 235 Conn. 906, 665 A.2d 899 (1995), this court
noted that in attempting to harmonize the jury’s incon-
sistent answers to interrogatories, a court may, as dic-
tated by caution, return the jury to consider its verdict
in light of the obvious inconsistency. See also Rendahl
v. Peluso, 173 Conn. App. 66, 95, 162 A.3d 1 (2017) (‘‘[a]
trial court may decline to accept a verdict and return
the jury to continue its deliberations when the verdict
form or accompanying interrogatories, if any . . . are
legally inconsistent’’). The trial court did not do so in
this instance. Because the jury’s answers are inconsis-
tent and cannot be harmonized, we conclude that the
court abused its discretion in denying the plaintiff’s
motion to set aside the verdict. ‘‘A verdict that is incon-
sistent or ambiguous should be set aside.’’ Kregos v.
Stone, 88 Conn. App. 459, 470, 872 A.2d 901, cert. denied,
275 Conn. 901, 882 A.2d 672 (2005).
II
The plaintiff next claims that the court erred in
excluding evidence that following the plaintiff’s acci-
dent, the defendant installed a fence.7 The plaintiff
argues that evidence of the remedial repair is admissible
because the defendant did not voluntarily install the
fence but, rather, did so at the direction of the depart-
ment. We disagree.
‘‘The trial court’s ruling on evidentiary matters will
be overturned only upon a showing of a clear abuse of
the court’s discretion. . . . We will make every reason-
able presumption in favor of upholding the trial court’s
ruling . . . .’’ (Internal quotation marks omitted.)
Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 489, 958
A.2d 1195 (2008).
Section 4-7 (a) of the Connecticut Code of Evidence
provides: ‘‘[E]vidence of measures taken after an event,
which if taken before the event would have made injury
or damage less likely to result, is inadmissible to prove
negligence or culpable conduct in connection with the
event. Evidence of those measures is admissible when
offered to prove controverted issues such as ownership,
control or feasibility of precautionary measures.’’ Sec-
tion 4-7, ‘‘which is an exception to the general rule of
admissibility of relevant evidence . . . reflects the set-
tled rule in this [s]tate that evidence of subsequent
repairs is inadmissible to prove negligence or [as] an
admission of negligence at the time of the accident.
. . . [S]uch evidence is likely to be of relatively minor
probative value. . . . A broad exclusionary rule pro-
hibiting the use of such evidence to prove negligence
[or culpable conduct] therefore fosters the public good
by allowing tortfeasors to repair hazards without fear
of having the repair used as proof of negligence, even
though it requires the plaintiff to make a case without
the use of evidence of the subsequent repairs. . . .
[E]vidence of subsequent remedial measures may be
introduced when the party seeking to introduce the
evidence can demonstrate that it is not being used as
evidence of negligence but is instead offered to prove
another material issue.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Duncan v.
Mill Management Co. of Greenwich, Inc., 308 Conn. 1,
13–15, 60 A.3d 222 (2013).
The plaintiff stated in his brief that the evidence of
the subsequent fence was relevant to the jury’s determi-
nation of inherent danger and proximate cause. Section
4-7 of the Connecticut Code of Evidence, and the rea-
sons behind the rule, make clear that voluntariness is
not a factor, and that evidence of remedial measures
is inadmissible to prove the defendant’s liability for
nuisance. Accordingly, we conclude that the court did
not abuse its discretion in excluding evidence of the
subsequent fence.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion SHELDON, J., concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The complaint also named as defendants M. Rondano, Inc., and BL
Companies, Inc. The court, Radcliffe, J., granted the motion for summary
judgment of BL Companies, Inc., which was affirmed on appeal. See Fisk
v. Redding, 164 Conn. App. 647, 138 A.3d 410 (2016). The plaintiff withdrew
his complaint as to M. Rondano, Inc. We will refer in this opinion to the
town of Redding as the defendant.
2
There was evidence that the Bridge Design Manual, which applies to
retaining walls, provided that a protective fence is required if a retaining
wall is greater than five feet, and subsequently was changed, unbeknownst
to the project supervisors, to require any retaining wall exceeding four feet
to have a fence. There also was evidence that the wall, as built, complied
with the Connecticut State Building Code.
3
The plaintiff pleaded, inter alia, in his operative complaint: ‘‘The said wall,
which was within the highway limits of Main Street . . . had a precipitous
(approximately [six feet] straight down) drop at the border of the highway
right-of-way with the driveway (some [six feet] below) serving [number] 2
Main Street. . . . Said precipitous drop had no protective fencing. . . . As
such, the said construction was inherently dangerous and constituted an
absolute nuisance. . . . Said wall was constructed upon public land and
constituted a public nuisance.’’ The plaintiff offered evidence that he suffered
almost $250,000 in past medical bills and between $100,000 and $200,000 in
future medical bills.
4
The court submitted the following interrogatories to the jury:
‘‘1. Has Plaintiff proven to you, by a preponderance of the evidence, that
the condition complained of, the subject retaining wall, was inherently
dangerous in that it had a natural tendency to inflict injury on person or
property? . . .
‘‘[If your answer is ‘NO,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘YES,’ please proceed
to questions #2.]
‘‘2. Has Plaintiff proven to you, by a preponderance of the evidence, that
the danger created was a continuing one? . . .
‘‘[If your answer is ‘NO,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘YES,’ please proceed
to questions #3.]
‘‘3. Has Plaintiff proven to you, by a preponderance of the evidence, that
the Defendant’s use of the land was unreasonable or unlawful? . . .
‘‘[If your answer is ‘NO,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘YES,’ please proceed
to questions #4.]
‘‘4. Has Plaintiff proven to you, by a preponderance of the evidence, that
the existence of the nuisance interfered with a right common to the general
public? . . .
‘‘[If your answer is ‘NO,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘YES,’ please proceed
to questions #5.]
‘‘5. Has Plaintiff proven to you, by a preponderance of the evidence, that
the existence of the nuisance was a proximate cause of the plaintiff’s injuries
and damages? . . .
‘‘[If your answer is ‘NO,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘YES,’ please proceed
to questions #6.]
‘‘6. Has the Defendant proven to you, by a preponderance of the evidence,
that Plaintiff’s own reckless misconduct was a proximate cause of his injur-
ies? . . .
‘‘[If your answer is ‘YES,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘NO,’ please proceed
to questions #7.]
‘‘7. Has the Defendant proven to you, by a preponderance of the evidence,
its defense of assumption of the risk? . . .
‘‘[If your answer is ‘YES,’ you must return a verdict for the defendant by
using the defendant’s verdict form. If your answer is ‘NO,’ please proceed
to the plaintiff’s verdict form.]’’
5
The focus in Walsh v. Stonington Water Pollution Control Authority,
250 Conn. 443, 449, 736 A.2d 811 (1999), was the utility of what the alleged
creators of a private nuisance had made by their conduct rather than any
contributory negligence on the part of the plaintiffs. The present case
involves a claim of absolute nuisance to which contributory negligence is
not a defense. See Warren v. Bridgeport, 129 Conn. 355, 360, 28 A.2d 1 (1942).
6
The court instructed the jury to determine whether the condition in the
particular location had a natural tendency to create danger and inflict injury.
7
Because of our conclusion with respect to the first issue, it is appropriate
for us to give guidance on issues that are likely to recur upon retrial.