16 Conn. App. 1 | Conn. App. Ct. | 1988
The plaintiff brought this action seeking damages for injuries he suffered while operating a radial arm saw manufactured by the defendant Black & Decker Manufacturing Company (Black & Decker) and owned by the defendant J & S Hydraulics, Inc. (J & S), the plaintiffs employer. The trial court rendered judgment in favor of Black & Decker and in favor of the plaintiff against J & S, in accordance with the jury’s
The jury could reasonably have found the following facts. The plaintiff, a mechanical engineer, was employed as a draftsman and designer of hydraulic equipment by J & S, a corporation which designed, repaired and manufactured hydraulic equipment. J & S maintained on its premises numerous machines used in the course of its business, including a radial arm saw manufactured by Black & Decker. On January 24, 1979, the plaintiff, after regular working hours, was operating the radial arm saw for the construction of a workbench, a personal project of the plaintiff. Such after-hours personal use of machinery was permitted by J & S, was frequently exercised by its employees, and was regarded as a fringe benefit of employment. Earlier on that date, the plaintiff had obtained specific permission, as was required, to use a company vehicle to drive to a nearby lumber yard and purchase lumber for the construction of the workbench. At the end of the workday, the plaintiff, with the aid of several other employees, carried the lumber from the truck into the shop and onto the mezzanine on which the saw was located.
The plaintiff testified that management was aware of his use of the saw due to his earlier use of the company vehicle and his transport of the wood into the shop in plain view. The plaintiff did not, however, obtain explicit permission to use the saw. While the plaintiff was operating the saw it “kicked back” and pulled his left hand into the blade of the saw, severing his fingers and thumb. The saw as manufactured was equipped with a removable anti-kickback device which was not in place at the time the plaintiff was operating the saw. Following the accident, an anti-kickback device was placed on the saw by J & S.
The jury found, in response to interrogatories, that the saw was not defective in either of the ways alleged by the plaintiff in the first count of his complaint, and, accordingly, returned a verdict for Black & Decker. The jury returned a verdict in favor of the plaintiff against J & S on the second count of the complaint, and awarded the plaintiff damages in the amount of
In its appeal from the judgment rendered for the plaintiff, J & S claims that the trial court erred (1) in its charge to the jury regarding the duty owed the plaintiff by J & S, (2) in failing to instruct the jury as requested regarding the open and obvious nature of the condition of the saw, and (3) in refusing to set aside the verdict and direct judgment for J & S on the basis that there was insufficient evidence on the issue of liability. The plaintiff, in his appeal from the judgment for Black & Decker, claims that the trial court erred in prohibiting the plaintiffs cross-examination of Black & Decker’s expert witness as to whether his opinion on the efficacy of placing warnings directly on the saw was the same during an earlier time period as that expressed at the time of trial, and in prohibiting the introduction of evidence regarding safety measures taken subsequent to the manufacture of the saw in question by manufacturers other than Black & Decker. Black & Decker has presented three alternate grounds upon which the judgment in its favor should be affirmed.
I
Appeal of J & S Hydraulics
J & S first claims that the trial court erred in instructing the jury that J & S owed the plaintiff a duty of reasonable care.
“A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose.” Pinto v. Bridgeport Mack Trucks, Inc., 38 Conn. Sup. 639, 641, 458 A.2d 696 (1983). “The essential element of bailment is the express or implied assumption of control over the property by the bailee.” Lissie v. Southern New England Telephone Co., 33 Conn. Sup. 540, 543, 359 A.2d 187 (1976); see also Malone v. Santora, 135 Conn. 286, 289, 64 A.2d 51 (1949); On Site Energy Corporation v. Sperry Rand Corporation, 5 Conn. App. 326, 331, 498 A.2d 121, cert. deied, 197 Conn. 818, 501 A.2d 388 (1985); Desmond v. Wall, 39 Conn. Sup. 503, 504, 466 A.2d 804 (1983). In Zeterstrom v. Thomas, 92 Conn. 702, 704, 104 A. 237 (1918), the court defined a bail
“The duties and liabilities of bailor and bailee are generally determined according to the character of the bailment as one for mutual benefit, or gratuitous . . . .” D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.) § 84, p. 181. Accordingly, bailments are now generally classified as (1) those for the sole benefit of the bailor, (2) those for the sole benefit of the bailee, and (3) those for the mutual benefit of both parties.
A bailment for mutual benefit arises whenever it appears that both of the parties receive a benefit from the transaction. 8 Am. Jur. 2d, Bailments § 26. Classification of a bailment as one for mutual benefit, however, does not require that actual money or other consideration pass between the parties, nor does it require the demonstration of a specific, tangible benefit or compensation. Id.; American Enka Co. v. Wicaco Mach. Corporation, 686 F.2d 1050,1053 (3d Cir. 1972). A mutual benefit bailment may be premised on the expectation of benefits expected to accrue as a result of the bailment. Roy v. Friedman Equipment Co., 147 Conn. 121, 122-23, 157 A.2d 599 (1960); Global Tank Trailer Sales v. Textilana-Nease, Inc., 496 P.2d 1292, 1294-95 (Kan. 1972). Thus, where the bailment or loan of an article is motivated by the bailor’s desire to promote a sale of the article to the bailee, a mutual benefit bailment is created although no money or compensation has passed. Roy v. Friedman Equipment Co., supra, 123; Tierstein v. Licht, 174 Cal. App. 2d 835, 842, 345 P.2d 341 (1959). Similarly, if the custody
The loan of the saw by J & S for use by the plaintiff after regular working hours inured to the benefit of J & S. The permissive use of the machinery, a fringe benefit of employment, was surely calculated by management to promote goodwill and productivity among the employees of J & S. The plaintiffs use of the saw benefited both parties although no actual money or other tangible consideration was exchanged. A mutual benefit bailment may be created when, as here, a permissive loan results in benefits to both bailor and bailee, although no actual consideration is exchanged. See Dufur v. Lanvin, 101 App. Div. 2d 319, 324, 476 N.Y.S.2d 389 (1984); Ellis v. Moore, 401 S.W.2d 789, 794 (Tex. 1966). We conclude, therefore, that the loan of the saw by J & S for use by the plaintiff constituted a mutual benefit bailment.
A bailor in a mutual benefit bailment is under a duty to use reasonable care to ensure that the bailed property is reasonably safe for use in the manner and for
J & S next claims error in the trial court’s failure to instruct the jury as requested regarding the open and obvious nature of the condition of the saw.
We recognize that in a bailment for the sole benefit of the bailee, the bailor has no duty to warn the bailee of defects in the bailed property which are open and obvious. Id., 258. Our conclusion, however, that a mutual benefit bailment was created required of J & S a duty of reasonable care and, as we have observed, the trial court properly instructed the jury in this regard. Thus, even if the allegedly defective nature of
The allegation that the saw was patently defective implicated any contributory negligence of the plaintiff, which the jury ultimately concluded to be 30 percent. It did not, however, entirely insulate J & S from liability, which was the essence of the requested instruction. Thus, the instruction proposed by J & S, namely, that if the allegedly defective nature of the saw was found to be open and obvious to the plaintiff liability could not be imposed on J & S, was an incorrect statement of the law in this case, and the trial court did not err in refusing so to instruct the jury.
J & S finally claims error in the trial court’s refusal to set aside the verdict and direct judgment for J & S on the ground that there was insufficient evidence on the issue of liability. A trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption must be given in favor of its correctness. O’Leary v. Industrial Park Corporation, 14 Conn. App. 425, 430, 542 A.2d 333 (1988). The refusal to set aside a verdict will not be disturbed unless it appears that the trial court clearly abused its discretion. If the jury could reasonably and logically have reached the conclusion it did, the court’s refusal to set aside the verdict will be sustained. Jonap v. Silver, 1
Our review of the record indicates that there was ample evidence upon which the jury could have concluded that J & S gave permission to the plaintiff to use the saw, that J & S was aware of such use and that J & S knew or should have known that the anti-kickback device was not in place and failed to warn the plaintiff of the condition of the saw. Furthermore, there was undisputed testimony that the anti-kickback device had not been in place for many years and that the plaintiff had only used the saw infrequently. These factors, along with the absence of any relevant warnings, constituted sufficient evidence upon which the jury could have concluded that J & S had reason to believe that the plaintiff would not realize the danger of operating the saw without the anti-kickback device. The trial court, therefore, did not err in denying the motion to set aside the verdict and refusing to render judgment for J & S in accordance with its motion for a directed verdict.
II
Appeal of Stanley Hartmann
During the course of the trial, both the plaintiff and Black & Decker presented expert testimony concerning the plaintiff’s allegation that the radial arm saw as manufactured by Black & Decker was defective in that the saw’s anti-kickback device could easily be removed and that there were inadequate warnings and instructions relating to the use of that device.
On cross-examination, Black & Decker’s expert witness, Craig Bertolett, was asked whether at the time
The plaintiff claims on appeal that the trial court erred in limiting the plaintiffs cross-examination of Black & Decker’s expert witness, and in prohibiting the plaintiff from asking that witness his opinion while he was employed by Emerson Electric as to the efficacy of placing warnings directly on the saw. The plaintiff claims that such evidence was admissible for impeachment purposes as a prior inconsistent statement of Bertolett and was also admissible as evidence of safety measures taken subsequent to the manufacture of the product.
When recovery is sought, as in this case, under a theory of strict products liability, evidence of remedial measures taken by the manufacturer of the product following the injury suffered, if shown to be related to the claimed defects, may be admitted at trial. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 147-48, 491 A.2d 389 (1985). In Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 647, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986), we held that in a products liability action evidence of safety features provided by other manufacturers of the prod
The rationale of the court in Sanderson allowing the admission of evidence of subsequent safety measures, and adopted in Ames, is as follows: “ ‘Subsequent change evidence may be highly probative of defectiveness because it provides a safer alternative against which to compare the allegedly defective product. Because the manufacturer’s culpability is not an issue, there should be no concern that the subsequent changes will be construed as an admission of negligence.
The central issue in a products liability action is whether the product in question is defective. Evidence of safety measures taken by other manufacturers sub
On appeal, however, a trial court’s ruling as to the admissibility of evidence is accorded great deference; State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); and we will only reverse such a ruling upon a showing of a clear abuse of discretion. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 556, 525 A.2d 954 (1987) . Furthermore, relevant evidence may be properly excluded by the trial court if its probative value is outweighed by such factors as time, confusion, or prejudice. State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 8.1.3, p. 227. These well established principles vesting a trial court with broad
Bertolett’s testimony that it was “possible” at the time of manufacture in 1966 to place warnings directly on the saws established the feasibility of placing such warnings. The jury was, therefore, aware that such warnings were feasible, and any evidence of a practice at Emerson Electric from 1976 to 1980 for the purpose of demonstrating feasibility was cumulative. Furthermore, the proffered evidence regarding procedures at Emerson Electric ten to fourteen years after the manufacture of the saw in question was remote in time as to the issue of the defectiveness of the saw as manufactured in 1966 by Black & Decker. Such evidence, moreover, was not critical to the plaintiff’s demonstration of defectiveness. The plaintiff presented ample expert testimony on the issue of defectiveness, which testimony was emphasized by the trial court in its charge to the jury. In light of the concession of feasibility by Black & Decker, the remoteness in time of the proffered evidence and the ample evidence presented by the plaintiff on the issue of defectiveness, the trial court could have in its discretion concluded that any prejudice and confusion stemming from the proffered testimony outweighed its probative value. “ ‘The introduction of evidence about subsequent changes in the product or its design threatens to confuse the jury by diverting its attention from whether the product was defective at the relevant time to what was done later.’ ” Sanderson v. Steve Snyder Enterprises, Inc., supra, 145 n.8, quoting Grenada Steel Industries v. Alabama Oxygen Co., 695 F.2d 883, 888 (5th Cir. 1983). Under these
The plaintiff also claims that the proffered evidence regarding the placement of anti-kickback warnings directly on radial arm saws by Emerson Electric while Bertolett was employed by Emerson as a supervisor of the manufacture of such saws was properly admissible as a prior inconsistent statement to impeach Bertolett’s testimony that such warnings were impractical and ineffective. “If a witness, such as an expert, testifies in terms of opinion, of course all courts will permit impeachment by showing a previous expression by the witness of an inconsistent opinion.” C. McCormick, Evidence (3d Ed.) § 35. Although such prior inconsistent statements are typically oral or written; Raffile v. Stamford Housewrecking, Inc., 168 Conn. 299, 302, 362 A.2d 879 (1975); Schurgast v. Schumann, 156 Conn. 471, 482, 242 A.2d 695 (1968); inconsistent positions may also be shown by conduct as well as by statements. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.24.3; see also Weller v. Fish Transport Co., 123 Conn. 49, 56-57, 192 A.2d 317 (1937).
“In order for a statement to be introduced as a prior inconsistent statement, the court must be persuaded that, taking the testimony of the witness as a whole, the statements are indeed inconsistent, the inconsistency is substantial and relates to a material matter, and the statement yields more than a possible inference of inconsistency.” Patrick v. Burns, 5 Conn. App. 663, 675-76, 502 A.2d 432 (1985); State v. Piskor
Since we conclude that the trial court did not err in either of the ways claimed by the plaintiff, we need not discuss the three alternate grounds presented by Black & Decker for affirmance of the judgment in its favor.
There is no error on either appeal.
In this opinion the other judges concurred.
The allegation of negligence for failure to install other safety devices was withdrawn by the plaintiff during the trial.
The trial court instructed the jury as follows: “What is negligence. The definition of negligence is to be applied to the alleged negligence contained
Gratuitous bailments include both bailments for the sole benefit of the bailor and those for the sole benefit of the bailee. 8 Am. Jur. 2d, Bailments §18.
Our conclusion that a mutual benefit bailment is present in this case renders unnecessary a determination of the standard of care required of a gratuitious bailor in a bailment for the sole benefit of the bailee. We note, however, that the minimal standard of care required of a bailor in such a situation under Johnson v. Bullard Co., 95 Conn. 251, 111 A.2d 70 (1920), is in contrast with the duty of reasonable care imposed on a bailee in a bailment for the sole benefit of the bailor. National Broadcasting Co. v. Rose, 153 Conn. 219, 224, 215 A.2d 123 (1965); Welch v. Boston & Albany R.R. Co., 41 Conn. 333, 343 (1874). The resolution of the different standard for each, however, must await another case.
J & S requested that the trial court instruct the jury as follows: “I must instruct you that, even if you find actual knowledge of the specific defect on the part of the defendant J & S Hydraulics, before you can find any responsibility on its part, you must also be convinced by the plaintiff, again by a fair preponderance of the evidence, that the defect was, in fact, hidden. By hidden, I mean not open or obvious to Mr. Hartmann. In other words, if you find that Mr. Hartmann knew or reasonably should have known that the anti-kickback device was either not in the proper position or not on the saw during the time he used it, then again, you cannot find any responsibility on the part of J & S Hydraulics, and again, you must stop there, go no further, and return a verdict in favor of J & S Hydraulics and against the plaintiff.”
The warning that was affixed to the saw, as conceded by the plaintiff in his complaint, did not relate to the use of the anti-kickback device.
Bertolett’s testimony that placing warnings directly on the saw was “possible” was tantamount to an admission that placement of such warnings was “feasible.” We are led to this conclusion by the definition of “feasible” as “possible of realization”; Webster, Third New International Dictionary; and counsel for Black & Decker’s unequivocal assertion to the court that “we have conceded that it is feasible. There is no issue about that ... we concede and [Bertolett] so testified it is feasible to put them on there.”
The court did not specifically state the basis for its ruling.
We reject Black & Decker’s argument that we should decline to review this claim of error due to the plaintiff’s failure to make a formal offer of proof regarding the testimony which was sought to be introduced. An offer of proof may be a necessary predicate to appellate review when the nature of the evidence to be introduced is not disclosed in the record, and the reviewing court is therefore unable to determine the propriety or effect of the excluded matter. State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986); State v. Gooch, 186 Conn. 17, 24, 438 A.2d 867 (1982); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 3.5.5. In this case, however, the plaintiff stated at length on the record the content of the expected testimony, the purpose for which such testimony was solicited, and the grounds for its admissibility. The substance of the proffered evidence is therefore amply disclosed in the record, and the plaintiff has clearly met his burden of providing an adequate appellate record to support his claim of error.
In addition, such an admission cannot rationally be inferred when the evidence is offered against a party — Black & Decker — which did not make the changes.
The circumstances in this case must be distinguished from the situation in which the state of the art at the time of manufacture did not include the ability to equip the product with safety features that were subsequently utilized as the state of the art improved. Tomer v. American Home Products Corporation, 170 Conn. 681, 687, 368 A.2d 35 (1976). In such a case, subsequent safety measures are clearly inadmissible. Id. In this case, however, Black & Decker did not dispute that the placement of warnings on the saw itself was feasible at the time of manufacture.
