Fisk v. Redding , 190 Conn. App. 99 ( 2019 )

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FISK v. REDDING—DISSENT
ELGO, J., concurring in part and dissenting in part.
In ruling on a motion to set aside a verdict, the trial
court is endowed with a broad legal discretion that
shall not be disturbed absent clear abuse. Rawls v.
Progressive Northern Ins. Co., 310 Conn. 768, 776, 83
A.3d 576 (2014); see also Ulbrich v. Groth, 310 Conn.
375, 414, 78 A.3d 76 (2013) (every reasonable presump-
tion must be given in favor of correctness of court’s
exercise of discretion to deny motion to set aside). In
the present case, the plaintiff, Gregg Fisk, claims that
the court abused that discretion due to the presence
of allegedly inconsistent responses to certain interroga-
tories by the jury. Such a claim requires this court to
attempt to harmonize the jury’s answers while giving
the evidence the most favorable construction that rea-
sonably supports its verdict. Norrie v. Heil Co., 203
Conn. 594, 606, 525 A.2d 1332 (1987). Guided by that
standard, I would conclude that the trial court did not
abuse its discretion in this case because the jury’s
responses to the interrogatories in question can be har-
monized in accordance with established nuisance juris-
prudence. I therefore respectfully dissent from the
majority’s conclusion to the contrary.
The standard of review governing the plaintiff’s claim
is well settled. In Norrie v. Heil Co., supra, 203 Conn.
605–606, our Supreme Court articulated the standard
of review applicable to a claim that the jury’s responses
to interrogatories are internally inconsistent with each
other. It stated: ‘‘Our [review] is extremely limited. The
trial court’s refusal to set aside the verdict is entitled
to great weight in our assessment of the claim that its
decision is erroneous. . . . The evidence and record
must be given the most favorable construction in sup-
port of the verdict which is reasonable. . . . It is not
the function of a court to search the record for conflict-
ing answers in order to take the case away from the
jury on a theory that gives equal support to inconsistent
and uncertain inferences. When a claim is made that
the jury’s answers to interrogatories in returning a ver-
dict are inconsistent, the court has the duty to attempt
to harmonize the answers.’’ (Citations omitted.) Id., 606;
accord Earlington v. Anastasi, 293 Conn. 194, 203, 976
A.2d 689 (2009).
In this public nuisance action, the jury was presented
with seven interrogatories. See footnote 4 of the major-
ity opinion. Relevant to this appeal are its responses
to the first and third interrogatories. The first interroga-
tory asked whether the plaintiff had proven ‘‘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’’; the jury answered
‘‘Yes.’’ The third interrogatory inquired whether the
plaintiff had proven ‘‘that the Defendant’s use of the
land was unreasonable or unlawful’’; the jury answered
‘‘No.’’ In accordance with the court’s instructions,1 the
jury, after answering that interrogatory in the negative,
proceeded to return a verdict in favor of the defendant
town of Redding.2 On appeal, the plaintiff maintains
that those responses are internally inconsistent with
each other and ‘‘plainly contradictory.’’ I do not agree.
The first interrogatory required the jury to determine
whether the retaining wall itself was inherently danger-
ous. It is well established that an interrogatory pre-
sented to a jury must be read ‘‘in conjunction’’ with the
instruction provided by the court. Norrie v. Heil Co.,
supra, 203 Conn. 605. In its charge to the jury, the court
instructed that ‘‘[i]t is the condition itself which must
have a natural tendency to create danger and inflict
injury.’’ (Emphasis added.) Because under our law the
jury is presumed to follow the court’s instructions
absent an indication to the contrary; Wiseman v. Arm-
strong, 295 Conn. 94, 113, 989 A.2d 1027 (2010); we
must presume that the jury in this case considered
whether the retaining wall itself was inherently danger-
ous. The jury answered the query in the affirmative.
After making that initial finding, the jury also was
required to determine whether the use of the land in
question was unreasonable, insofar as it interfered with
a right common to the general public.3 See State v.
Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183,
527 A.2d 688 (1987); 4 Restatement (Second), Torts
§ 821B (1) (1979). Unlike the first interrogatory, which
required the jury to determine whether the retaining
wall itself was inherently dangerous, the inquiry under
the third interrogatory required the jury to consider
whether the use of the land on which the retaining wall
was erected was unreasonable in light of the sur-
rounding circumstances.4 As this court has observed,
in the public nuisance context, all of the surrounding
factors must be considered to ascertain whether the use
of land in a given instance constitutes an unreasonable
interference with a public use. See Kumah v. Brown,
160 Conn. App. 798, 805–806 n.5 and n.6, 126 A.3d 598,
cert. denied, 320 Conn. 908, 128 A.3d 953 (2015).
That precept is well ingrained in our law. As our
Supreme Court noted more than half a century ago,
reasonableness must be determined in light of the par-
ticular ‘‘circumstances of the case.’’5 Wetstone v. Cantor,
144 Conn. 77, 80, 127 A.2d 70 (1956); see also Nicholson
v. Connecticut Half-Way House, Inc., 153 Conn. 507,
510, 218 A.2d 383 (1966) (‘‘[a] fair test of whether a
proposed use constitutes a nuisance is the reasonable-
ness of the use of the property in the particular locality
under the circumstances of the case’’ [internal quotation
marks omitted]). The precedent of this state’s highest
court thus instructs that ‘‘[u]nreasonableness cannot be
determined in the abstract, but, rather, must be judged
under the circumstances of the particular case.’’ Pestey
v. Cushman, 259 Conn. 345, 352–53, 788 A.2d 496 (2002);
see also Walsh v. Stonington Water Pollution Control
Authority, 250 Conn. 443, 457, 736 A.2d 811 (1999) (con-
cluding that trial court properly instructed jury that it
‘‘must consider many factors in determining the reason-
ableness of use’’); Nair v. Thaw, 156 Conn. 445, 452,
242 A.2d 757 (1968) (citing 4 Restatement, Torts § 826,
comment [b] [1939], for proposition that ‘‘[d]etermining
unreasonableness [in the nuisance context] is essen-
tially a weighing process, involving a comparative evalu-
ation of conflicting interests in various situations
according to objective legal standards’’ [internal quota-
tion marks omitted]); Cyr v. Brookfield, 153 Conn. 261,
266, 216 A.2d 198 (1965) (reasonableness measured
‘‘under all the circumstances’’).
Almost eighty years ago, our Supreme Court
explained that ‘‘[w]hether . . . a particular condition
upon property constitutes a [public] nuisance does not
depend merely upon the inherent nature of the condi-
tion, but involves also a consideration of all relevant
facts, such as its location, its adaptation to the beneficial
operation of the property, the right of members of the
public to go upon the land adjacent to it, and the use
to which they would naturally put that land.’’ (Emphasis
added.) Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d
765 (1940). For that reason, the trial court in the present
case properly instructed the jury with respect to the
third interrogatory that ‘‘[i]n making a determination
concerning the reasonableness of the use of the land,
all the surrounding factors must be considered.’’ See
Kumah v. Brown, supra, 160 Conn. App. 806 n.6 (‘‘[t]he
jury . . . was properly instructed to consider all of the
[surrounding] circumstances’’).
Accordingly, in considering the third interrogatory
regarding the reasonableness of the defendant’s use of
the land, the jury was not confined to a review of the
retaining wall in isolation. Rather, the jury was required
to ‘‘take into account a multiplicity’’ of surrounding
factors; Walsh v. Stonington Water Pollution Control
Authority, supra, 250 Conn. 457; including ‘‘both the
general activity [on the land] and what is done about
its consequences.’’ (Internal quotation marks omitted.)
Id., 459. In the present case, the jury had before it
evidence of the necessity and, hence, utility, of the
retaining wall, as it was constructed to replace an
existing retaining wall and meant to preserve the pub-
lic’s right to traverse Main Street below, particularly
pedestrians, bicyclists, and joggers. The jury also heard
testimony that the retaining wall, as built, fully complied
with the Connecticut State Building Code, which gov-
erns the construction of retaining walls in this state.
The plaintiff does not suggest otherwise in this appeal.
The jury also was presented with an abundance of
documentary and testimonial evidence, including sev-
eral photographs of the land in question, indicating that
both a guardrail barrier and a dense landscaping buffer
separated the retaining wall from the adjacent parking
lot, from which it is undisputed that the plaintiff entered
the land. In this regard, I reiterate that the applicable
standard of review requires this court to view that evi-
dence in the light most favorable to the verdict delivered
by the jury and to make all reasonable inferences consis-
tent therewith. Norrie v. Heil Co., supra, 203 Conn. 606.
James Fielding, who served as the project manager and
oversaw construction of the retaining wall, testified at
trial that installing a fence on the retaining wall ‘‘was
never discussed’’ because the defendant ‘‘had the guard-
rail in place serving to protect vehicles and pedestri-
ans.’’ Beyond that, the plaintiff’s own expert witness,
forensic engineer Richard Ziegler, conceded at trial that
the guardrail barrier was an effective means of keeping
people out of the area between the retaining wall and
the parking lot.6
The jury also heard uncontroverted testimony that,
between May and August, 2011, the plaintiff frequently
patronized the Lumberyard Pub, whose parking lot
abuts the land in question, as often as twice a week.
The plaintiff testified that, on every occasion prior to
the events of August 27, 2011, he walked down the
paved parking lot to exit the Lumberyard Pub.7 The
plaintiff’s own testimony supports the conclusion that
the defendant’s use of the land was objectively reason-
able because the plaintiff’s conduct on every other occa-
sion he frequented the Lumberyard Pub8 illustrates that
he had recognized the defendant’s use of the guardrail
barrier and the landscaping buffer as signals to the
public that they should not traverse the land in
question.9
Under Connecticut law, a nuisance claim requires
consideration of not only the defendant’s use of the
land in erecting the retaining wall, but also ‘‘what [was]
done about its consequences.’’ (Internal quotation
marks omitted.) Walsh v. Stonington Water Pollution
Control Authority, supra, 250 Conn. 459. On the evi-
dence presented at trial, the jury reasonably could
determine that the defendant’s installation of both the
guardrail barrier and the landscaping buffer to separate
the retaining wall from pedestrian access in the parking
lot were protective measures aimed at mitigating any
adverse consequences of an otherwise dangerous
retaining wall.10
Such surrounding circumstances are highly relevant
to the jury’s consideration of the reasonableness of the
defendant’s use of the land in question. For example,
in Kumah v. Brown, supra, 160 Conn. App. 800, 802, at
issue was the reasonableness of a fire truck positioned
diagonally across the middle and right travel lanes of
a highway, which, the plaintiff alleged, created a public
nuisance. In affirming the trial court’s refusal to set
aside the jury’s verdict, this court addressed the reason-
ableness element of a public nuisance claim. In so doing,
this court focused not only on the inherently dangerous
condition, but also on the surrounding circumstances.
The court emphasized that firefighters had activated
‘‘flashing lights’’ and had ‘‘placed cones as warnings to
approaching traffic.’’ Id., 800–801; see also id., 806 n.6
(‘‘[t]he jury may well have decided . . . that the social
utility of guarding the scene with, inter alia, flashing
lights was great’’). In light of those surrounding circum-
stances, this court concluded that the jury could have
found that the use of the property ‘‘was not unreason-
able overall . . . .’’ Id., 806.
In the present case, I likewise would conclude that
the jury had an adequate evidentiary basis to conclude
that the defendant’s use of the land did not constitute
an unreasonable interference with a right common to
the general public when viewed in light of the sur-
rounding circumstances.11 The retaining wall, while
inherently dangerous, was constructed in full compli-
ance with the Connecticut State Building Code. The
defendant installed both a guardrail barrier and a land-
scaping buffer to shield the retaining wall from the
adjacent parking lot. The jury reasonably could infer,
from the plaintiff’s own testimony that he did not
attempt to traverse the land in question during any of
his numerous visits to the Lumberyard Pub prior to the
night in question, that the guardrail and landscaping
buffer provided an effective barrier from pedestrian
traffic. Moreover, the plaintiff’s own expert testified at
trial that the guardrail, in particular, provided adequate
notice and was an effective means of keeping people
out of the area between the retaining wall and the park-
ing lot. See footnote 6 of this opinion. The admitted
efficacy of that barrier provides a basis on which the
jury could conclude that, notwithstanding the inherent
dangerousness of the retaining wall itself, the defen-
dant’s use of the land was not unreasonable in light of
the surrounding circumstances.12
In reviewing a claim of internally inconsistent inter-
rogatory answers, we are obligated to harmonize those
answers to the extent practicable while giving the evi-
dence the most favorable construction that supports
the jury’s ultimate verdict. See Norrie v. Heil Co., supra,
203 Conn. 606. We are not permitted to search the
record for conflicting answers in order to take the case
away from the jury on a theory that gives equal support
to inconsistent and uncertain inferences. Id. In its mem-
orandum of decision denying the plaintiff’s motion to
set aside the verdict, the court specifically found that
‘‘there was sufficient evidence to permit the jury to
make a factual determination regarding the reasonable-
ness element and thereby render a verdict in favor of
the defendant—the court finds that the jury’s responses
to [the] interrogatories are neither inconsistent nor con-
trary to the law.’’ I believe that, having applied the
appropriate legal standard given the evidence before
the jury, the trial court did not abuse its discretion in
denying the plaintiff’s motion to set aside the verdict
of the jury. I therefore respectfully dissent from part I
of the majority opinion.
1
In this appeal, the plaintiff has raised no claim with respect to the
propriety of the court’s instructions to the jury.
2
The complaint named other defendants that are not involved in this
appeal. References in this opinion to the defendant are to the town of
Redding.
3
Although both the third interrogatory and the court’s charge to the jury
also referenced unlawfulness, there was no evidence presented at trial, nor
any claim by the plaintiff, that the use of the land was unlawful. I therefore
confine my review to the issue of reasonableness. See Walsh v. Stonington
Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811
(1999) (‘‘the determinative portion of this element [of a nuisance action]
was whether the use . . . was reasonable’’).
4
For that reason, I reject the plaintiff’s suggestion that a finding that the
land in question was inherently dangerous precludes a finding by the jury
that the defendant’s use of the land in question was reasonable. The relevant
inquiries under the first and third interrogatories are distinct and have been
well established under our law for the better part of a century. See, e.g.,
Beckwith v. Stratford, 129 Conn. 506, 508, 29 A.2d 775 (1942) (‘‘[t]o constitute
a nuisance in the use of land, it must appear not only that a certain condition
by its very nature is likely to cause injury but also that the use is unreasonable
or unlawful’’).
5
In Peterson v. Oxford, 189 Conn. 740, 745–46, 459 A.2d 100 (1983), our
Supreme Court similarly described the application of a reasonableness stan-
dard as ‘‘a weighing analysis’’ that entails consideration of ‘‘all the relevant
circumstances’’ and factors. See also Williams Ford, Inc. v. Hartford
Courant Co., 232 Conn. 559, 580, 657 A.2d 212 (1995) (‘‘[w]e have consistently
held that reasonableness is a question of fact for the trier to determine
based on all of the circumstances’’).
6
At trial, the following colloquy occurred:
‘‘[The Defendant’s Counsel]: The [existing] guardrail, it’s made of heavy
block wood; is that right?
‘‘[Ziegler]: Yes.
‘‘[The Defendant’s Counsel]: And a structure like this one [that] we’re
looking at, certainly sends the message to people over here that they are
not supposed to go over in that direction, doesn’t it?
‘‘[Ziegler]: Correct.
‘‘[The Defendant’s Counsel]: And . . . correct me if I’m wrong, but the
guardrail is an effective means of keeping people from the parking lot over
here from going into the area where the high parts of the wall are, correct?
‘‘[Ziegler]: Yes.
‘‘[The Defendant’s Counsel]: That was your word, an effective means of
keeping people from going in; correct?
‘‘[Ziegler]: Yes.’’
7
The uncontroverted evidence before the jury established that, at all
relevant times in 2011, the plaintiff lived one-half mile away from the land
in question and knew that there was a drop in elevation from the top of
the retaining wall. The evidence also indicates that the plaintiff was very
familiar with the land in question. He previously had worked in that area
of the town for seven years, at which time a timber retaining wall was
present on that land. There is no indication in the record that the plaintiff
ever attempted to traverse either the timber retaining wall or the replacement
retaining wall at any time during those seven years or in 2011, apart from
the early morning hours of August 27, 2011, when he was in an admittedly
intoxicated condition. As the plaintiff acknowledged at trial, he ‘‘never once
went over [the] retaining wall prior to that night . . . .’’
Moreover, the plaintiff offered no evidence that anyone ever traversed
the retaining wall prior to the events of August 27, 2011. In this regard, I
believe the present case is strikingly similar to Balaas v. Hartford, supra,
126 Conn. 514, in which ‘‘[t]here [was] no finding that anyone had ever
[previously used the land in question as the plaintiff did], that the place
where the accident occurred had ever been used [in that manner], or that
there was any reason for the defendant to anticipate such use by anyone.’’
8
I fully agree with the majority that such evidence is not relevant to the
question of the plaintiff’s contributory negligence in this public nuisance
case. Rather, I highlight such evidence because I believe it further substanti-
ates a finding by the jury that the defendant took reasonable measures to
alert pedestrians of ordinary prudence that the land in question was not to
be traversed.
9
In his operative complaint, the plaintiff alleged that the defendant had
erected the retaining wall without any ‘‘protective fencing.’’ In its answer,
the defendant denied the truth of that allegation. As such, the factual question
of whether any protective fencing existed was in dispute and one for the
jury, as finder of fact, to ultimately decide. Because the jury was presented
with ample documentary and testimonial evidence that both a guardrail
barrier and a landscaping buffer separated the parking lot from the retaining
wall, as well as testimony from the defendant’s project manager that the
guardrail barrier was installed ‘‘to protect vehicles and pedestrians,’’ I believe
the jury reasonably could conclude that protective fencing was, in fact,
present on the land, insofar as fencing is defined as ‘‘a barrier intended to
prevent . . . intrusion or to mark a boundary’’ and ‘‘something resembling
a fence in appearance or function.’’ See Webster’s Third New International
Dictionary (2002) p. 837. Such a finding is consistent with the verdict ren-
dered by the jury in favor of the defendant.
10
At oral argument before this court, Judge Sheldon noted two distinct
ways that a property owner may deal with an inherently dangerous condition,
stating: ‘‘One way is to get rid of the problem. That is, to actually fix it. The
other way is to give adequate warning of it or to fence it off so that people
don’t go there.’’ Both at trial and in this appeal, the defendant has maintained
that the installation of the guardrail barrier accomplished the latter.
11
The plaintiff has not specified, in either his appellate briefs or at oral
argument before this court, precisely what ‘‘right common to the general
public’’ is implicated here. Presumably, his claim is predicated on a right
to freely traverse an area of land that historically—and at all times relevant
to this case—has contained a retaining wall.
12
I also would conclude that the plaintiff’s reliance on Bilodeau v. Bristol,
38 Conn. App. 447, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899
(1995), is misplaced. Unlike the present case, Bilodeau did not involve
internally inconsistent interrogatory answers by the jury but, rather, con-
cerned ‘‘an apparent inconsistency between the jury’s answer to one of the
interrogatories submitted to it and the plaintiff’s verdict.’’ Id., 450. In that
case, the jury could only return a plaintiff’s verdict if it had ‘‘answered all
six interrogatories in the affirmative . . . .’’ Id., 455. After answering one
of the six interrogatories in the negative, the jury nonetheless delivered a
verdict in favor of the plaintiff, and the court thereafter directed a verdict
in favor of the defendant. Id., 452–54.
On appeal, this court expressly stated that its ruling was predicated on
the particular ‘‘circumstances of this case . . . .’’ Id., 456. This court empha-
sized that the trial court ‘‘did not expressly charge the jury that it must
answer all of the interrogatories in the affirmative in order to find for the
plaintiff. This failure further evidences the jury’s unawareness or confusion
regarding the relationship between the interrogatories and the verdict.’’ Id.,
453 n.5. The trial court’s failure to so instruct the jury, coupled with the
remedial mandate of General Statutes § 52-223, led this court to observe
that ‘‘considering the fact that the trial court had not specifically instructed
the jury that it needed to answer all of the interrogatories in the affirmative
in order to return a plaintiff’s verdict, caution dictated that the jury be so
instructed and given an opportunity to make its verdict clear’’ before the
court directed a verdict in favor of the defendant. Id., 455.
In the present case, by contrast, there is no claim that the jury’s responses
to the interrogatories are inconsistent with the verdict that it returned in
favor of the defendant. Furthermore, the plaintiff has never claimed any
impropriety in the instructions furnished by the trial court and has not
briefed such a claim in this appeal. Bilodeau, therefore, has little relevance
to the present case.