In this action sounding in nuisance, the plaintiff appeals from the judgment rendered after the trial court directed the jury to return a verdict in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) directed the jury to return a defendant’s verdict, (2) refused to permit the introduction into evidence of § 16-1 (b) of the code of the city of Bristol and (3) effectively barred the plaintiff from arguing money damages pursuant to General Statutes § 52-216b. We agree that the trial court acted improperly in directing a verdict in favor of the defendant and reverse the judgment of the trial court.
The jury could reasonably have found the following facts. On May 16, 1989, at approximately 7:30 p.m., the plaintiff was driving a motor vehicle west on Memorial Boulevard near its intersection with Mellon Street, both public highways in the city of Bristol. As the plaintiff was proceeding on Memorial Boulevard, a large branch that overhung the west bound lane of travel from the north side of the highway fell from an oak tree and struck the roof of the plaintiff’s automobile, crushing the roof of the car almost to the level of the door. After the branch hit the car roof, the plaintiff’s automobile crossed the median divider in the center of Memorial Boulevard, grazed a pole and ultimately struck another oak tree where the vehicle came to rest.
The branch that struck the plaintiff had broken off of one of the many oak trees that had been planted by the city of Bristol along Memorial Boulevard as a veterans memorial. It appeared to be in poor health and was rotted in the area of pruning cuts.
The property on which the trees were planted belongs to the defendant and employees of the defendant are responsible for maintaining and caring for the trees along Memorial Boulevard. The only records available revealed that the oaks on Memorial Boulevard were pruned in the spring of 1986. It is uncertain as to when any work was done on that area prior to that time. The pruning was carried out in flush cuts and did not comport with generally accepted methods for the pruning of such oak trees. Such improper pruning can create large wounds in the trees, which provide points of entry for decay. The branch that fell on the plaintiffs automobile showed pruning cuts in close proximity; the decay between the cuts had coalesced, which weakened the entire branch.
The case was submitted to the jury with interrogatories and the jury returned a plaintiff’s verdict in the amount of $50,000 and answers to the interrogatories. The trial court accepted the answers to the interrogatories but declined to accept the plaintiff’s verdict. The trial court then directed the jury to return a verdict
I
The plaintiff first asserts that the trial court improperly directed a verdict in favor of the defendant on the basis of an apparent inconsistency between the jury’s answer to one of the interrogatories submitted to it and the plaintiff’s verdict. The plaintiff asserts that under the circumstances of this case the trial court should not have directed a verdict but should have invalidated the entire verdict proceedings or returned the jury for further deliberations after a recharge as to the law in order to dispel any confusion that might have existed. We agree.
Certain additional procedural facts are necessary to a proper resolution of this claim. The trial court submitted to the jury six interrogatories.
The jury returned with the answers to the six interrogatories and with a plaintiff’s verdict in the amount of $50,000.
The trial court excused the jury from the courtroom and heard argument by counsel regarding the effect of the inconsistency between the answers to the interrogatories and the verdict. After consideration, the trial court recalled the jury and informed it that its finding that the use of the land was not unreasonable necessitated a verdict for the defendant.
“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion.” (Internal quotation marks omitted.) Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991); see also Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985). We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Giles v. New Haven, 228 Conn. 441, 444, 636 A.2d 1335 (1994); Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).
In light of these standards, we conclude that the trial court improperly directed a verdict in favor of the defendant.
“To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the [general] verdict was found . . . .” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 459, 612 A.2d 114 (1992); see Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 634, 179 A. 95 (1935); Murteza v. State, 7 Conn. App. 196,201, 508 A.2d 449 (1986).
Here, the trial court should not have directed a verdict in favor of the defendant because the jury’s initial response to the interrogatories did not conclusively negate an essential element of the plaintiff’s cause of action. The jury’s answer to the third interrogatory was
Where answers to interrogatories are inconsistent, the trial court has the duty to attempt to harmonize the answers. Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). Here, the trial court made no attempt to harmonize the answer, nor did it, as caution dictated, return the jury to consider its verdict in light of the obvious inconsistency. See General Statutes § 52-223. Further, 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. See Robbins v. Van Gilder, 225 Conn. 238, 252, 622 A.2d 555 (1993).
Section 52-223
Thus, we conclude that under the circumstances of this case, the trial court acted improperly in directing a verdict for the defendant.
II
The plaintiff next asserts that the trial court improperly excluded from evidence § 16-1 (b) of the Bristol code. We are unpersuaded.
In the course of the trial, the plaintiff attempted to introduce into evidence § 16-1 (b) of the Bristol city code concerning the establishment of a proper memorial to Bristol’s veterans of all wars.
Applying these principles, we conclude that the trial court did not abuse its considerable discretion in sustaining the defendant’s objection to the offer into evidence of § 16-1 (b) of the Bristol code. The establishment and preservation of the park as a memorial is unconnected to the claims of the plaintiff and the trial court properly exercised its discretion to exclude the evidence.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
The interrogatories submitted to the jury were as follows:
“1. Did the defendant create a condition that had a natural tendency to create damage and inflict injury on persons or property?
“2. If such condition was created was it a continuous one?
“3. Was the defendant’s use of its land unreasonable?
“4. Was the existence of the condition created the proximate cause of the plaintiffs injuries?
“5. Was the plaintiff in the exercise of a public right when she was injured?
“6. Were the pruning cuts a positive act of the City or its employees?”
The trial court specifically charged the jury regarding the definition and elements of a claim for nuisance: “A nuisance generally may be defined as a condition the natural tendency of which is to create danger and inflict injury upon person or property. To establish a nuisance claim against a municipality, we need five separate things. The plaintiff has to prove five
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“To establish liability against a municipality, it must be shown that the condition was created by some positive act of the municipality or its employees, and I might say to you if I talk about the city or the municipality, it is responsible and held responsible for the acts of all of its employees unless you find from the evidence in this case that some, one of these people, was out on a frolic and detour of his own but I don’t think we have anything like that. I think the trimmers and tree people were pretty clearly — you don’t have to find it but they were acting in a regular city capacity for the city. If you find that they did these things, then the city is responsible for what they did.
“In this place, the plaintiff claims that the city created a dangerous condition and, additionally, the plaintiff says that the city maintained the dangerous condition. You heard the testimony from the expert witnesses and from the city personnel. If you find that the dangerous condition was created by the cuts, the pruning methods used by the city, then the plaintiff will have proven that the condition was created by a positive act. What the city created, according to the plaintiff, I guess, is that the city created a wound on the branch of a tree because it didn’t cut it far enough out, cut it too bad, something like that. And the question is, in regard to reasonable use of the land, is it reasonable for the city to do that, to do what it did, to make this cut, trim this tree and I guess it trimmed other trees, but they are not part of our case. What the question for you that you have to have in mind is what dangerous condition, after the cut continued, the wounds, but the damage done by the wounds, allowed the decay to enter, according to the witnesses, over a period of four to eight to even, I heard, twenty years, is that a continuation of the danger or is something new being added?
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“To constitute a nuisance in the use if land, it must appear not only that a certain condition by its very nature is likely to cause injury but the use is unreasonable. Whether a particular condition of which the plaintiff [says]
In addition to the trial court’s charge on the elements of the cause of action as set out in footnote 2, the trial court also addressed the issue of the interrogatories as follows: “Now, the last thing we have on our agenda here is the interrogatories, which I think I gave you as well. They are entitled interrogatories to jury, and they are to help us help you in focusing on ornease and I’m going to go over those interrogatories one at a time. First one is, did the defendant create a condition that had a natural tendency to create damage and inflict injuries on persons or property? You will see that these six, the first five anyway, are our first five items that the plaintiff must prove in regard to proving a nuisance case and she is required to prove those first five.
“So, I ask you to answer each of them, if the condition was created, was it continuous, was the defendant’s use of the land unreasonable . . . [w]as the existence of the condition created the proximate cause of the plaintiff s injuries and, in regard to that one, I would tell you in order to be the proximate cause, it must be a substantial factor but it need not be the sole, substantial factor. And, was the plaintiff in the exercise of the public right when she was injured. I think you could put a yes in that box without any complaint. The last one is a question that, as I indicated to you in the charge, the creation of this nuisance must be by a positive act and so the question is, were the pruning cuts a positive act of the city or its employees?”
This verdict included $16,000 in compensation for economic damages and $34,000 for noneconomic damages.
The trial court stated as follows: “Ladies and gentlemen, we have your verdict for the plaintiff, which I have not accepted, and the reason I have not accepted it is because in answers to the interrogatories you said, “No,” in regard to interrogatory number 3. As I directed you in the charge, in order to find for the plaintiff you had to say yes to all five of those first questions and what you have said is the defendant’s use of the land was reasonable because you said it was not unreasonable. If it’s not unreasonable, then the verdict must be for the defendants. Therefore, I must return you to the jury room with a direction that, in accordance with your interrogatories, to which you all assented twice, you must come in with a verdict for the defendant and I so direct you.
“Would you take the jury out and give them the defendant’s verdict form?”
Despite the contrary contentions of the trial court, 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.
General Statutes § 52-223 provides: “The court may, if it judges the jury has mistaken the evidence in the action and has brought in a verdict contrary to the evidence, or has brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for the same reason may return them to a third consideration. The jury shall not be returned for further consideration after a third consideration.”
Practice Book § 311 provides: “The court may, if it determines that the jury have mistaken the evidence in the cause and have brought in a verdict contrary to it, or have brought in a verdict contrary to the direction of the court in a matter of law, return them to a second consideration, and for like reason may return them to a third consideration, and no more.”
Although our resolution of the plaintiff’s claim that the trial court improperly directed a verdict for the defendant is dispositive of this appeal, we address this evidentiary claim because it is likely to occur in the course of a new trial. We do not, however, address the plaintiff’s third claim that the trial court “effectively barred the plaintiff from arguing damages to the jury,” as it is unlikely to occur on remand. See Falby v. Zarembski, 221 Conn. 14, 26-27, 602 A.2d 1 (1992).
Section 16-1 (b) of the code of the city of Bristol provides in pertinent part: “The board of park commissioners shall give special care in maintaining said park as a fitting memorial and preserving the rows of memorial oaks which border the boulevard. . . .”