65 Conn. App. 300 | Conn. App. Ct. | 2001
Opinion
In this negligence action, the named defendant, Roderick Taylor,
The plaintiff cross appeals claiming that the trial court improperly granted the motion to set aside the verdict awarding him damages from the defendant Woodbury Ski and Racquet, Inc. (Woodbury). He claims that the court improperly set aside the award of damages after entering a default against Woodbury. The plaintiff also claims on his cross appeal that the court improperly refused to submit to the jury his claim against Taylor under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and his recklessness claim against Taylor. We affirm the judgment with respect to Taylor’s appeal and with respect to the plaintiffs cross appeal against Taylor, but we reverse the judgment setting aside the jury verdict for the plaintiff against Woodbury.
The following facts and procedural history are relevant to these appeals. On the evening of March 12,1993, the plaintiff, a business invitee, was injured in a sledding accident at a commercial skiing facility known as the Woodbury Ski and Racquet Club (club). The club was operated by Taylor and located on property owned by
The plaintiff filed a four count complaint alleging negligence (count one), wilful and malicious failure to protect or warn (count two) and a CUTPA violation (count three) against Taylor and Woodbury, and negligence (count four) against Romney Ames, Ronald B. Ames and Lillian Ames.
At trial, Taylor elected to represent himself. After the close of the evidence, the court announced that there was insufficient evidence to support the second and third counts against Taylor. It therefore charged the jury on the negligence count only. The jury found Taylor negligent and returned a verdict in favor of the plaintiff for $60,000 in economic damages and $40,000 in noneconomic damages. The negligence of Taylor and the plaintiff was assessed at 50 percent each, resulting in a damages award against Taylor of $50,000. The court then charged the jury on the issue of damages against Woodbury and the jury returned a verdict in favor of the plaintiff for $120,000.
Taylor and Woodbury filed several posttrial motions. Both defendants were represented by counsel at the hearing on the motions. The court denied Taylor’s motion to set aside the verdict, for a new trial or for a remittitur, but reduced the damages award against him to $40,794.36 following a collateral source reduction
I
A
Taylor first claims that the court improperly failed to set aside the verdict against him because the conduct of the plaintiffs counsel and the absence of a curative instruction violated his right to a fair trial. He claims that counsel for the plaintiff (1) made prejudicial remarks and introduced irrelevant and highly prejudicial evidence as to the character of both parties, (2) made closing arguments based on facts not in evidence, (3) made “golden rule” arguments and (4) misstated
“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion. . . . The trial court may set aside a jury’s verdict only if it finds that the jury could not reasonably and legally have reached its conclusion. ” (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn. App. 123, 129, 726 A.2d 613, cert, denied, 249 Conn. 909, 733 A.2d 227 (1999).
Where a claim is made that remarks by opposing counsel jeopardized a party’s right to a fair trial, “[a] verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court’s function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom. . . . The trial judge has discretion as to the latitude of the statements of counsel made during argument.” (Citations omitted.) Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 205, 470 A.2d 705 (1984). “If a counsel’s remarks so prejudice the ability of a party to obtain a fair trial, a new trial is mandated. . . . [I]n such exceptional cases, the verdict should be set aside and a new trial ordered, regardless of whether the opposing party took exception to the remarks.” (Citations omitted.) Id., 204.
1
Taylor first claims that he was denied his right to a fair trial because the plaintiff’s counsel made prejudicial remarks regarding the character of both parties and
In his answer to the plaintiffs complaint, Taylor alleged that the plaintiff did not pay the rental fee for his sled, did not purchase a lift ticket and “was under the influence of alcohol, drugs or both” on the night of the accident. In his subsequent deposition, Taylor made similar allegations and added that the plaintiff and his friends had been on the premises before and were troublemakers. These allegations set the stage for future remarks at trial by the plaintiffs counsel concerning the issue of character.
The plaintiffs counsel was the first to make an opening statement. He initially reminded the jurors that his remarks did not constitute proof or evidence, but then stated that Taylor had not testified truthfully at his prior deposition and would lie in testimony before the court by saying that the plaintiff was a “bad kid” who was using alcohol, marijuana and possibly speed on the night of the accident. He also suggested that Taylor did not call the police or an ambulance following the accident because he was holding an illegal concert on his property and “he didn’t want the police to know. He didn’t want the town to know.” By contrast, he described the plaintiff, his family, his friends and his physicians as “truthful people” and portrayed the plaintiff as “a good kid from a good family. His dad is a Superior Court judge, like Judge Hodgson. . . . He’s a good boy.”
During the trial’s evidentiary phase, the plaintiffs counsel queried Taylor about his deposition, specifically, his allegations that the plaintiff did not pay for using the sled and that he was under the influence of alcohol and drugs. Taylor testified that he had had a previous run-in with the plaintiff and that the plaintiff had told him after the accident: “My father is going to kill me; I wasn’t even supposed to be here tonight.” Later in the trial, the plaintiffs mother testified that her husband was a Superior Court judge. When the plaintiff took the stand, he also testified that his father was a Superior Court judge, like the trial judge,
Another witness for the plaintiff, Peter Hughes, a former Woodbury town planner,
In his closing argument, the plaintiffs counsel again referred to the purportedly illegal concert on the night of the accident. “[H]ad he obeyed the law, we wouldn’t be here today, because he doesn’t have a right to hold a concert on his property, and we know that because he was under injunction in this very court, issued years before.” Counsel also returned to the theme of the plaintiffs “good” character and his upstanding family, stating that “I think it was very, very wrong about what this man has done to that boy and to his dad and his mom and sisters and to you.” He argued that Taylor had been
Taylor responded in a similar vein. “[Q]uite frankly, [the plaintiffs] friends are really the type of individuals that give me a lot of the hassles all night . . . .” He claimed that the plaintiff did not pay for a lift ticket or for his use of the sled, that he probably “snuck in through the back door like the rest of his friends” and that the plaintiff had lied about these matters to the jury. He repeated the allegation that the plaintiff and his friends may have brought alcohol onto the premises.
During rebuttal argument, the plaintiffs counsel referred to Taylor’s verbal attacks on the plaintiffs friends and family. “The only thing he seems to be able to talk about is to mock the Murray family. He talks about [the plaintiff] and his Mends.” “You don’t just walk around and slander your neighbors, make fun of our Mends, mock people who you don’t know about.” He again referred to the allegations in Taylor’s pleadings that the plaintiff was under the influence of alcohol and drugs on the night of the accident and to testimony by one of the physicians that there was no evidence suggesting that the plaintiff should have been tested for alcohol or drug use after he was brought to the hospital. Counsel eventually concluded: “I think we know that every single person who came into this courtroom was a good person, who made a good appearance, who told an honest, straightforward story, except one. Every doctor was truthful and honest. They think the world of this boy. They think the world of his family because he’s a good boy. . . . And a responsible mother, a caring woman, a sophisticated woman, a registered nurse . . . looked you in the eye and told you
Before commencement of the trial, the court advised counsel as to the proper procedure for making objections. Thereafter, the plaintiffs counsel made frequent objections, but Taylor did not. Although Taylor objected when the 1991 order for a temporary injunction was admitted into evidence, he did not take exception to any of the disputed testimony and remarks of counsel at the time they were made, nor did he ask for a curative instruction. The court nonetheless advised the jury that arguments by counsel do not constitute evidence and should be taken simply as argument, and that “obviously, your verdict must not be arrived at [on] the basis [of] prejudice in favor [of] or against any party and not on the basis of sympathy for any party. Parties come to court asking simply for an impartial determination of the claims they have made in the lawsuit based on the facts and on the law. That is what they are entitled to. That is how you should approach your decision in this case.” The court also instructed the jurors that they were not to decide whether the concert was an illegal use of the property.
In its memorandum of decision denying Taylor’s post-trial motions, the court acknowledged his pro se status, but also pointed out that the court had informed him prior to the trial that he would be held to the same rules and procedures as attorneys. The court further noted that Taylor had stated in the course of the trial that “he had tried cases pro se previously.” The court explained that “Taylor’s arguments imply a duty of the court to assist a pro se party. While a judge trying a
“In his brief, the defendant Taylor implies that if a party chooses to try a case pro se and then hires counsel, his omissions or mistakes of strategy at trial should entitle him to a new trial. Such a suggestion overlooks the fact that litigants are entitled to one trial, not two, and that dissatisfaction at the result of the decision to try the case pro se does not create a right to burden one’s adversary with the expense in time and money of a second trial. The Supreme Court has ruled that failure to object at the proper time or to request a curative instruction or charge constitutes a waiver of a claim of error. Skrzypiec v. Noonan, 228 Conn. 1, 13, [633 A.2d 716] (1993).” The court did not address Taylor’s other claims regarding the issue of character, namely, the legality of the concert, his history of zoning disputes with the town, and counsel’s remarks during his opening statement and closing argument as to the parties’ truthfulness or credibility.
In Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 195, we considered a similar complaint of improper conduct by the plaintiffs counsel. In that case,
In concluding as we did in Yeske, we cited Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 286 (5th Cir. 1975), State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert, denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), and Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 710, 52 A. 490 (1902). In Edwards, the plaintiffs counsel in his closing argument discussed the value that his own son would place on his father’s life, played on his personal association with the decedent, evoked imagery of the decedent’s children crying at his gravesite while forlornly waiting for their father to return and urged upon the jury the need for retributive payments. Edwards v. Sears, Roebuck & Co., supra, 286. In Ubaldi, the state in its summation to the jurors deliberately attempted to circumvent two of the court’s prior evidentiary rulings by making comments that implied that the defendant associated with a person who had been identified as a “bookie” and thus was involved with illegal gambling. State v. Ubaldi, supra, 574-75. In Hennessy, the plaintiffs counsel, in a lengthy and passionate argument, portrayed the defendant insurance company as a “rich corporation” and “one of the worst land-sharks and plunderers that I ever saw.”
Far more serious and troubling are counsel’s repeated references to the occupation of the plaintiffs father, his personal friendship with the judge and his family, his invitation to compare the plaintiffs father with the presiding judge at the trial and his request that the plaintiff point to his father, who was sitting in the courtroom, so that the jurors could see him. Indeed, such a bold and deliberate attempt to bolster the plaintiffs credibility at Taylor’s expense comes perilously close to the threshold of highly prejudicial and unfair argument. “We ... do not condone comments by counsel that go beyond the bounds of forceful advocacy. . . . [T]he trial court [however] was in the best position to assess the possible prejudice, if any, that may have resulted from counsel’s comments, and to fashion an appropriate remedy from a range of possible alternatives. . . . The defendants were obliged, therefore, to raise in the trial court their objections to counsel’s improper remarks. Because they failed to do so, the defendants are entitled to a new trial only if they can demonstrate that such relief is necessary to remedy a manifest injustice.” (Citations omitted.) Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 687-88, 657 A.2d 1087 (1995). We are not persuaded that Taylor has met this burden.
We conclude that any prejudice that may have resulted from counsel’s remarks was minimal. In its charge to the jury, the court stated that the verdict must not be based on sympathy or prejudice for or against
Taylor argues that a civil judge is not merely an umpire in a forensic encounter but is a minister of justice. He argues that the plaintiffs counsel went beyond the bounds of fair advocacy and that the trial judge was obligated to take every reasonable step to protect his rights, including the issuance of a reprimand.
“ ‘The trial judge may be under a duty to reprimand counsel in order to protect the rights of litigants.’ ” Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982). Here, however, the court noted, and we agree, that “the judge cannot become the adviser or tactician for the pro se party. People who choose to represent themselves must be accorded the dignity of their own choice. They, like lawyers, must be assumed to be making choices of strategy, and the court cannot presume to determine when a failure to object is tactical and when it is not.”
We, therefore, conclude that the court did not abuse its discretion in denying Taylor’s motion to set aside the verdict on the basis of improper remarks and evidence as to the truthfulness or credibility of the parties, the purportedly illegal concerts Taylor held on his prop
2
Taylor next claims that he was denied a fair trial because the plaintiffs counsel made prejudicial closing arguments based on facts not in evidence. He claims that counsel introduced facts about the flexible flyer sled that encouraged the jury to find that Taylor’s rented sled, which was not a flexible flyer, was unsafe and contributed to the accident. He argues that the evidence did not support such a claim, the court already had ruled that it would not charge the jury on the claim and the court had admonished counsel beforehand that closing arguments were not an occasion to testify. We do not agree that the argument concerning the sled was prejudicial to Taylor.
After the close of the evidence, the court advised counsel that it was inclined to submit only two of the plaintiffs eight negligence claims to the jury because the remaining six claims, including the claim of a defective sled, were either repetitive or lacked evidentiary support.
During closing argument, however, the plaintiffs counsel compared the plaintiffs sled to the flexible
The court ultimately decided to instruct the jury on four of the plaintiffs eight negligence claims. The claims were that Taylor (1) allowed customers to slide on slopes too steep and that produced speeds too great for their safety, (2) allowed and failed to restrict parking in areas he knew or should have known could create a hazard for users, (3) failed to erect proper fences or barriers and (4) failed to provide adequate warnings. In concluding its instructions on the negligence claims, the court stated, “Now in order to prove his claim . . . [the plaintiff] must prove [that the defendant] Taylor was negligent in at least one of the ways claimed and that this negligence was a substantial factor in causing the collision . . . .”
“A well established rule is that a statement by counsel, not under oath, of a material fact pertinent to the issues unsupported by evidence, and prejudicial to the opposing party, constitutes reversible error unless it appears that the prejudicial effect has been effectively averted by an instruction to disregard the statement,
We conclude that comments by the plaintiffs counsel comparing the flexible flyer sled with the sled used by the plaintiff did not introduce material facts pertinent to the issues in this case because the court specifically instructed the jury to consider only four of the plaintiffs eight negligence claims, none of which included the claim of a defective sled. Accordingly, the argument concerning the sled was irrelevant to the jury’s determination of negligence and the court did not abuse its discretion in failing to grant Taylor’s motion on that ground.
3
Taylor next claims that the plaintiffs counsel improperly made a “golden rule argument” that encouraged the jury to decide the case on the basis of personal bias rather than on the evidence. He claims that counsel improperly (1) asked the jurors to imagine that they had suffered the same injury as the plaintiff when placing a value on his noneconomic damages and (2) referred to a recent trip to the facility by a juror and his children. We do not agree that these remarks resulted in significant prejudice to Taylor.
Twice during closing argument, the plaintiffs counsel referred to the jurors. In discussing the club’s lack of insurance coverage he stated: “Well, when people— and I know one of you actually went there with your children — I know this was told, that one of the jurors went there with their children, and I guess he probably didn’t know that if his child had gotten hurt, there was
“A golden rule argument is one that urges jurors to put themselves in a particular party’s place ... or into a particular party’s shoes. . . . Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence. . . . They have also been equated to a request for sympathy.” (Citations omitted; internal quotation marks omitted.) Nastri v. Vermillion Bros., Inc., 46 Conn. Sup. 285, 289, 747 A.2d 1069 (1998).
In Nastri, as here, the plaintiffs counsel made a golden rule argument with respect to the jury’s calculation of noneconomic damages. To counteract its potentially prejudicial effect, the Nastri court specifically addressed the argument in its instructions to the jury and cautioned the jurors in strong terms not to let sympathy affect their decision. The court ultimately concluded that the argument had not influenced the jurors because the noneconomic damages award was relatively low and the jury assessed 25 percent of the responsibility for damages to the plaintiff. The couit stated that “whether or not the plaintiffs counsel crossed the line into golden rule territory, the court concludes that the defendants suffered no injury as a
We likewise conclude that, although the plaintiffs counsel may have “crossed the line into golden rule territory,” Taylor did not make a timely objection and suffered no injury as a result of the argument. Although the court did not specifically refer to the argument in instructing the jury, it cautioned the jury not to base its decision on sympathy or prejudice toward either party. Moreover, the noneconomic damages award of $40,000 does not seem excessive in light of the plaintiffs extensive injuries and the fact that the jury assessed 50 percent of the responsibility for damages to the plaintiff. Accordingly, we conclude that the court did not abuse its discretion in failing to set aside the verdict on the ground that counsel made an improper golden rule argument.
4
Taylor finally claims that the plaintiffs counsel misstated the applicable law. He argues that the applicable standard of care he owed to the plaintiff was the same as that owed to the patrons of ski area facilities, but that the plaintiffs counsel improperly advised the jury that the applicable standard of care was that owed pursuant to ordinary principles of negligence. We disagree.
During his closing argument, counsel stated: “The simple fact of the matter is that Paul got hurt, and the law entitles him to recover damages for getting hurt.” He suggested that Taylor’s liability for the sledding accident was the same as the liability of a shopping mall owner for a fall by one of its patrons on the ice and snow in its parking lot, and that in neither case was assumption of risk, a principle relevant in assessing liability for accidents at ski facilities, an appropriate defense.
We also conclude that, because we have determined that Taylor’s individual claims of misconduct by the plaintiffs counsel did not deprive him of a fair trial, and in light of Taylor’s failure to make a timely objection, the cumulative effect of the individual claims of negligence by counsel cannot be said to have deprived Taylor of a fair trial or caused him manifest injury under the standard set forth in Yeske. See Yeske v. Avon Old Farms School, Inc., supra, 1 Conn. App. 205.
B
Taylor next claims that the trial court improperly failed to set aside an excessive verdict because there was no evidentiary support for an economic damages award of $60,000. He claims that the plaintiff incurred only $20,677.12 in past medical expenses and that the evidence indicated future medical expenses of $18,000 to $28,000. Taylor, therefore, contends that there is no basis for a total economic damages award in excess of $48,677.12 and that the verdict was a product of jury error and confusion. We disagree.
The plaintiff presented evidence that he incurred $20,677.12 in medical expenses following the accident. His dentist also testified that additional medical procedures to maintain the restoration of his teeth and jaw would be required every ten to fifteen years, at an estimated cost of $5600 for each procedure. The plaintiff was eighteen years old at the time of the accident and the court took judicial notice that his life expectancy
“Litigants have a constitutional right to have factual issues resolved by the jury. . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded men passed upon by the jury and not by the court. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to [a] verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. ... In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. . . . The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. ... It is the function of this court to determine whether the trial court abused its discretion in denying [a defendant’s] motion to set aside
“ [Although the trial court has a broad legal discretion in this area, it is not without its limits. . . . The evidential underpinnings of the verdict itself must be examined. Upon issues regarding which, on the evidence, there is room for reasonable difference of opinion among fair-minded men, the conclusion of a jury, if one at which honest men acting fairly and intelligently might arrive reasonably, must stand, even though the opinion of the trial court and this court be that a different result should have been reached. . . . [I]f there is a reasonable basis in the evidence for the jury’s verdict, unless there is a mistake in law or some other valid basis for upsetting the result other than a difference of opinion regarding the conclusions to be drawn from the evidence, the trial court should let the jury work their will.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 478, 760 A.2d 117 (2000), affd, 257 Conn. 359, 777 A.2d 681 (2001).
We conclude that the economic damages award falls within the limits of just damages, is reasonably supported by the evidence and does not so shock the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. It is undisputed that the plaintiff incurred $20,677.12 in medical expenses following the accident. The plaintiffs dentist estimated that future medical procedures would be required every ten to fifteen years to maintain the restoration of the plaintiffs teeth and jaw. Because the plaintiff was eighteen years old at the time of the accident and has a life expectancy of seventy-four years, he is likely to require three to five additional
Nevertheless, we conclude that, although the jury awarded the plaintiff $11,322.88 more in damages than is supported by this evidence, the award is not unreasonable. The plaintiffs life expectancy and the cost of each future medical procedure were estimated. The actual cost of future medical procedures may be more than presently anticipated and, if the plaintiff lives longer than seventy-four years, six or more procedures may be required rather than five. Furthermore, because the jury found comparative fault, the defendant is responsible for oMy half of the damages awarded. The $11,322.88 in “excess” damages awarded thus results in an “added” financial obligation to each party of $5661.44. That amount is not unreasonable in light of the inexactitude inherent in the estimation process. Accordingly, we conclude that, viewing the evidence in the light most favorable to the plaintiff, the verdict is not contrary to the law or the evidence, and the court did not abuse its discretion in failing to set aside the economic damages award against Taylor.
C
Taylor next claims that the court improperly instructed the jury because it (1) submitted to the jury claims not supported by the evidence,
1
We turn first to Taylor’s claim that, notwithstanding the court’s imtial proposal to submit oMy two of the
The plaintiff made eight claims of negligence against Taylor, namely, that Taylor negligently (1) permitted sledding in areas too steep for safety, (2) allowed parking in areas that he knew or should have known could create a hazard for users of the adjoining slope, (3) failed to restrict parking in areas so close to the slope as to create a hazard to users of the slope, (4) failed to provide proper warnings, (5) failed to provide proper lighting, (6) failed to provide safe sleds, (7) failed to erect proper fences or barriers and (8) failed to remove dangerous obstacles from the path of sledders.
Both parties submitted written requests to charge the jury. Prior to instructing the jury, the court held a charge conference on the record. Referring to the eight claims of negligence, the court stated: “It appears to me that the only two claims that should properly be submitted to the jury are the claims that the defendant was negligent in allowing vehicles to be parked in the area where the Ames’ truck was located, and not requiring its removal; that’s one. The other is the claim of negligence in not erecting fences or barriers to prevent sledders from going into the area where the Ames’ truck was. With regard to other individual claims of negligence, I find they either restate those claims in other words or were not supported by the evidence.”
When the court discussed the proposed charge with counsel, the plaintiffs counsel objected to its limited scope. He requested that the court charge the jury on the three additional claims that Taylor permitted sledding on slopes that were too steep, failed to provide proper warnings and failed to remove dangerous obstacles from the path of sledders. Taylor objected to expanding the charge, but the court made no further
“To preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the jury instructions when they are given by the trial court.” (Internal quotation marks omitted.) State v. Faria, 254 Conn. 613, 632, 758 A.2d 348 (2000). Since Taylor timely filed a written request to charge, his claim is properly before the court.
The standard we use in reviewing evidentiary matters, including the sufficiency of the evidence to submit a claim to the jury, is abuse of discretion. See Cooks v. O’Brien Properties, Inc., 48 Conn. App. 339, 348-49, 710 A.2d 788 (1998). Accordingly, “great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Id.
“Issues that are not supported by the evidence should not be submitted to the jury.” State v. Hawkins, 19 Conn. App. 609, 618, 563 A.2d 745, cert, denied, 212 Conn. 820, 565 A.2d 540 (1989). Here, contrary to Taylor’s claim, the court did not decide which claims of negligence to submit to the jury until both parties had a full and fair opportunity to comment on the court’s initial proposal. After considering the comments of counsel, the court determined that two additional claims of negligence had sufficient evidentiary support to be submitted to the jury. Taylor provides this court with no valid reason to decide otherwise. He merely
2
Taylor also claims that the court improperly denied his request to charge the jury on the law and special defenses available to ski area operators on the ground that his answer did not identify by number the statutes on which the requested defenses were predicated. He claims that the evidence necessary to support the statutory defense was admitted at trial and that he simply seeks the protection of the legal defenses that are available to him. This claim has no merit.
During the charge conference, Taylor proposed that the court make reference to “the state statute” and the responsibility of skiers to use caution, “basically the responsibility code suggested by the national ski area association.” The court rejected Taylor’s suggestion because his pleading did not refer to the statute or its number and the pleadings were closed.
When the court reconvened for closing arguments, Taylor raised the issue again. Claiming that he was entitled to a charge on the statutory defenses available to ski area operators, Taylor moved in writing to amend his affirmative defenses by introducing General Statutes §§ 29-212 to 29-214
“Timely notice would mean the ability to know what’s going to be the trial of case, and no mention of any of these statutes was made in the original answer and special defense that you filed ....
“The reason the rules say that the statutory claim or statutory defense has to be made in the pleadings before the trial starts is so that everyone in the trial will know what the issues are and what kind of evidence to put on. I cannot allow an amendment that opens up a whole new legal issue here .... If you had it in your original special defense, [the plaintiffs counsel] would have had a chance to file a motion saying that it did or didn’t apply; and that would have all been worked out before trial.” The court added that the motion “raised issues that were not set out in the original pleadings as to which the plaintiff has not had notice” and that it would not reopen the evidence for a “last minute” claim.
Our standard of review for claims of instructional impropriety in appeals not involving a constitutional question is well established. “[T]he court must consider the whole charge and it must be determined ... if it is reasonably probable that the jury [was] misled . . . .” (Internal quotation marks omitted.) Pajor v. Wallingford, 47 Conn. App. 365, 377, 704 A.2d 247 (1997), cert, denied, 244 Conn. 917, 714 A.2d 7 (1998). “In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts.
. . . We consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. . . . The charge must give the jurors a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues.” (Internal quotation marks omitted.) McSwiggan v. Kaminsky, 35 Conn. App. 673, 677, 647 A.2d 5, cert, denied, 231 Conn. 934, 649 A.2d 256 (1994).
We conclude that it was not reasonably probable that the court misled the jury by failing to charge on the law and special defenses available to the operators of skiing facilities. The court denied Taylor’s motion because he did not refer to the statute in his pleadings and the pleadings were closed. In denying his subsequent motion to amend, the court explained that timely notice of a statutory defense is necessary to give the opposing party an opportunity to contest the issues raised. Here, the statutory defense Taylor attempted to raise applies specifically to operators of skiing facilities. Accordingly, charging the jury as Taylor requested might have misled the jurors because the case involved a sledding accident, and there was no opportunity for
Taylor claims that his request to charge the jury on the statutory defense available to ski area operators was similar to his request to charge the jury on comparative fault, where he also failed to identify the relevant statute by number. We disagree. Taylor raised the defense of contributory negligence prior to the trial, and both parties made arguments to the jury on that issue. A similar opportunity was not available with respect to the statutory defense available to ski area operators because Taylor did not raise the defense before the close of evidence. His argument, that raising the statutory defense at a later time did not prejudice the plaintiff because all of the requisite evidence already had been introduced, is irrelevant in light of the fact that the plaintiff still lacked the opportunity to contest the defense at an earlier and more appropriate stage in the proceedings. We, therefore, conclude that the court properly denied Taylor’s motion because the court’s instructions to the jury were complete, thorough and clearly presented, and there is no reasonable probability that the jury was misled by omission of the requested reference to the statutory defense available to ski operators.
II
The plaintiff cross appeals from the judgment of the court, challenging the granting of Woodbury’s motion to set aside the verdict awarding him damages. He claims that, by setting aside the award of $120,000 in damages after entering a default against Woodbury, the court improperly violated the rule of finality applicable to default judgments. He claims that, by virtue of the default, the defendant admitted the truth of the facts
Woodbury, a corporation, was dissolved and ceased to have a legal existence on March 15,1985, but continued to be listed as the record owner of the property where the accident occurred. Six months before the trial commenced, a clerk of the court routinely entered a default against Woodbury for failure to appear. Wood-bury did not file a notice of intent to contest liability. After the jury rendered a verdict against Taylor, the court submitted to the jury the claim for damages against Woodbmy at a hearing in damages. The jury returned a damages award of $120,000 on the basis of the negligence and CUTPA claims.
Before the court rendered judgment on the verdict, Woodbury filed a motion to set aside the verdict on the ground that there was no evidence to support a finding that the plaintiffs injuries were proximately caused by conduct of the dissolved entity. Woodbury specifically claimed that there was insufficient evidence that the sledding activities were conducted on its behalf as a de facto corporation after it ceased to have a legal existence. The court granted Woodbury’s motion because “[e]ven in a hearing in damages, where the factual allegations of the complaint are deemed proven by the entry of the default ... a plaintiff must still prove that the damages claimed were caused by the conduct alleged. ... In order to have found that any damages suffered by the plaintiff were proximately caused by the actions of the defaulted defendant, the jury would have to have found that it was the corporation that determined where and under what circumstances patrons could use sleds and what facilities to
The court added that any conclusions by the jury that Woodbury was operating the sledding area at the time of the accident, that Taylor was acting as its agent or that Woodbury’s actions proximately caused any of the plaintiffs injuries “could only have proceeded from a mistake by the jury in applying the legal principle that the verdict must be based on a fair preponderance of the evidence as to proximate cause and not on speculation. There was no evidence that [Woodbury] employed Roderick Taylor at the time or that it was in any way in operation as a corporation after it was dissolved. All that was shown was that the property had not been conveyed to shareholders after the dissolution. This court overlooked the above analysis in submitting the claims against the corporation to the jury, but must not, under the principles of Breen v. Phelps, 186 Conn. 86, 99-100 [439 A.2d 1066] (1982), refuse to acknowledge the merit of a later argument simply because it leads to a different result than a prior ruling made without the benefit of that argument.”
“[The] entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927, cert, denied, 212 Conn. 802, 560 A.2d 984 (1989). “In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff
We conclude that the court improperly granted Woodbury’s motion to set aside the verdict. The court determined that there was no evidence from which the jury reasonably could have found that the plaintiffs damages were proximately caused by the conduct alleged and ruled against the plaintiff on that basis. Yet, in an action at law, as here, the liability of a defaulted defendant is established, and the plaintiffs burden at a hearing in damages is limited to proving that the amount of damages claimed is derived from the injuries suffered and is properly supported by the evidence. Ratner v. Willametz, 9 Conn. App. 565, 575-76, 520 A.2d 621 (1987). We, therefore, cannot agree with the court’s conclusion that the plaintiffs claim must fail because he did not provide evidence that Woodbury’s negligent conduct proximately caused his injuries, and we reverse the judgment setting aside the verdict on that ground.
Ill
The plaintiff also cross appeals from the court’s refusal to submit to the juiy his CUTPA and recklessness claims against Taylor. He argues that he adequately pleaded the claims, offered evidence to prove them and requested appropriate jury charges. He argues that he
We initially observe that the court did not direct a verdict on the CUTPA and recklessness claims. Moreover, both claims concern a challenge to the trial court’s rulings on evidentiary matters, specifically, whether there was sufficient evidence to submit the plaintiffs claims to the jury. See Cooks v. O’Brien Properties, Inc., supra, 48 Conn. App. 348. Accordingly, our standard of review is abuse of discretion, and we will reverse the court’s ruling only if it could not have reasonably concluded as it did. Id.
A
The plaintiffs first claim of evidentiary error is that the court improperly refused to submit his CUTPA claim to the jury. He argues that the evidence he offered to support this claim included (1) the testimony of Hughes, the cease and desist orders and the 1991 injunction, all of which related to the purportedly illegal concerts that Taylor held on his property; (2) the fact that the plaintiff went to Taylor’s property to attend an illegal concert on the night of the accident; (3) Taylor’s refusal to summon help; and (4) Taylor’s allegedly inappropriate response to the plaintiffs injury. We disagree.
Count three of the plaintiffs complaint alleged a CUTPA violation against Taylor and Woodbury for failure to provide safe premises, to offer reasonable assistance and to obtain medical help following the accident. Testimony at trial indicated that, after the plaintiff was injured, Taylor took him to the bathroom to clean up and suggested that he get a ride to the hospital with someone on the premises, but did not call the police or an ambulance. After the plaintiff submitted a request to charge that included proposed instructions on the
“Section 42-110b (a) [of the Connecticut Unfair Trade Practices Act] provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons], . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., [245 Conn. 1, 43, 717 A.2d 77 (1998)]. Moreover, this court has set forth a three part test for satisfying the substantial injury criterion: [1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided. . . . Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 484, 533 A.2d 1211 (1987).” (Internal quotation marks omitted.) Hartford Electric
We conclude that the court did not abuse its discretion in determining that the plaintiff presented insufficient evidence to support a jury charge on the CUTPA claim. Evidence of the purportedly illegal concert and Taylor’s past disputes with the town was irrelevant to his allegations of failure to provide safe premises and reasonable assistance, which he at the heart of his claim. As for evidence that Taylor failed to call an ambulance or the police following the accident, we do not find unreasonable the court’s conclusion that this was insufficient to support the charge of a CUTPA violation under the applicable law. Making every reasonable presumption in favor of the trial court’s ruling, we, therefore, conclude that the court properly refused to submit this claim to the jury.
B
The plaintiffs second claim of evidentiary error is that the court improperly refused to submit his recklessness claim to the jury. He argues that he offered relevant evidence in support of his claims (1) that Taylor conducted an illegal concert on property under his control the night of the accident, (2) that Taylor knew that a vehicle was in the path of sledders, that it was dark, that no barriers protected the sledders and that people were sledding in the area, but failed to warn Murray of the dangers of sledding in such conditions, and (3) that Taylor refused to offer or obtain proper assistance for the plaintiff after the accident. We disagree.
Count two of the plaintiffs complaint alleged that Taylor’s wilful or malicious failure to guard or protect customers from avoidable dangers or to warn them of dangerous conditions, uses, structures or activities caused the plaintiffs injuries. The plaintiff submitted a request to charge on the recklessness claim, but the
In the common-law context, we have stated that to establish that conduct was wanton, reckless, wilful, intentional and malicious, a party must prove “the existence of a state of consciousness with reference to the consequences of one’s acts .... [Such conduct] is more than negligence, more than gross negligence. . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. ... [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . [Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988).]” (Internal quotation marks omitted.) Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000).
We conclude that the court did not abuse its discretion in finding that there was insufficient evidence to support the claim of recklessness. Evidence as to the legality of the concert is irrelevant to this claim, and we cannot say that the court unreasonably concluded that evidence as to the nighttime sledding conditions and Taylor’s conduct after the accident was insufficient to support the charges of failure to protect or warn and extreme and reckless disregard for the plaintiffs safety. Because we must make every reasonable presumption in favor of the trial court’s ruling, we conclude that the court properly refused to submit this claim to the juiy.
The plaintiff cites Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988), for the proposition
On the appeal, the judgment is affirmed. On the cross appeal, the judgment is reversed as to the setting aside of the verdict against the defendant Woodbury Ski and Racquet, Inc., and the case is remanded with direction to reinstate the verdict against the defendant Woodbury Ski and Racquet Club, Inc., in the amount of $120,000. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
The five original defendants in this action were Roderick Taylor; Wood-bury Ski and Racquet, Inc.; Romney Ames; Ronald B. Ames and Lillian Ames.
Romney Ames parked the vehicle and Ronald B. Ames and Lillian Ames, Romney’s parents, were believed to own the vehicle.
General Statutes § 52-225a provides in relevant part: “(a) In any civil action, whether in tort, or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987 . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
“(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment,, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
“(c) The court shall receive evidence from the claimant and any other appropriate person concerning any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.”
The following colloquy occurred:
“[Plaintiffs Counsel]: Over the last two days, Paul, your mother was with you; correct?
“[Plaintiff]: Yes.
“[Plaintiffs Counsel]: She isn’t able to be here today; correct?
“[Plaintiff]: Correct.
“[Plaintiffs Counsel]: Who did come with you today?
“[Plaintiff]: My father.
“[Plaintiffs Counsel]: And is he in the courtroom?
“[Plaintiff]: Yes, he is.
“[Plaintiffs Counsel]: And you could just point him out so that the jurors can see him?
“[Plaintiff]: (The witness indicated.)
“[Plaintiffs Counsel]: And he’s a judge of the Superior Court as well, like Judge Hodgson; correct?
“[Plaintiff]: Correct.
“[Plaintiffs Counsel]: Now lawyers don’t like to get involved much with judges, so I’m just going to ask you one thing. Is he a good dad?
“[Plaintiff]: Yes, he is.”
Hughes testified that he was employed by the town of Woodbury for approximately four and one-half years following the March, 1993 accident, but that his tenure had ended before commencement of the trial.
In Hennessy, the plaintiffs counsel spoke as follows: “Oh, yes! You can arraign counsel who have courage enough to attack one of these insurance
Rule 3.4 (5) of the Rules of Professional Conduct provides in relevant part that a lawyer shall not “state a personal opinion as to the . . . credibility of a witness [or] the culpability of a civil litigant . . . .”
In Rizzo Pool Co. v. Del Grosso, supra, 232 Conn. 686-87 n.33, comments made by the plaintiffs counsel in rebuttal to the defendant’s closing argument that “ ‘I have over thirty years heard many arguments by many people, both in and out of courtrooms. I’ve never heard one which is a combination of such sleaze, slime and innuendo as the one that I just was unfortunately victimized into listening to’ that the defendant had resorted to the use of “ ‘weasel words’ ” during his testimony; and several other inappropriate, albeit less provocative comments were deemed insufficient to warrant a new trial. See also Weller v. Fish Transport Co., 123 Conn. 49, 60-61,192 A. 317 (1937) (where argument by plaintiffs counsel that defendants produced testimony of drinking by plaintiff to save their “ ‘filthy money’ ” was described by court as unwarranted and improper but insufficient to entitle defendant to new trial).
We emphasize that members of the bar should discipline themselves to adhere to our rules of practice and evidence, whether faced with opposing counsel or a pro se litigant, and no member of the bar should take unfair advantage of a pro se litigant, regardless of the litigant’s professed education or “experience” in the courtroom.
See part I C 1.
Taylor characterizes this evidentiary claim as one of instructional error.
The claims were that “Roderick Taylor . . . allowed customers to slide on slopes that were too steep and that produced speeds too great for their safety under all the circumstances that existed at the time . . . and . . . failed to provide adequate warnings to the plaintiff of hazards in his path.”
General Statutes § 29-212 provides in relevant part: “Each skier shall assume the risk of and legal responsibility for any injury to his person or property arising out of the hazards inherent in the sport of skiing, unless the injury was proximately caused by the negligent operation of the ski area by the ski area operator, his agents or employees. . . .”
General Statutes § 29-213 describes prohibited conduct by skiers. General Statutes § 29-214 provides in relevant part: “It shall be a special defense to
We agree with the trial court’s reasoning and, therefore, conclude that the court did not abuse its discretion in denying the motion to amend.