Stuart v. StuttigStuart v. Stuttig
- Reporters:
- , ,
- Before:
- Schaller
Opinion
SCHALLER, J.In this negligence action, the defendant Rosemarie Stuttig appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff, Charles Stuart. The defendant claims on appeal that the court improperly (1) refused to direct the verdict or to render a judgment notwithstanding the verdict in her favor on her special defense of the *224statute of limitations that was directed to the plaintiffs negligence count and (2) refused to instruct the jury on apportionment of liability among settled or released parties pursuant to
The following facts and procedural history are relevant to the disposition of this appeal. The plaintiff and the defendant are owners of homes located on land abutting Long Island Sound. On December 11, 1992, during a severe storm, the deck attached to the defendant’s home broke away from its foundation, drifted into the Sound and crashed into the plaintiffs seawall and property, resulting in extensive damage. The plaintiff brought this action against the defendant and others,2 3including the Ralph Longo Construction Corporation (Longo), the corporation that constructed the deck, to recover damages to his property. The plaintiff alleged negligence and trespass.
At trial, the plaintiff pursued his case against the defendant alone and withdrew his claims against the other defendants. The defendant filed a motion for a directed verdict on both the negligence and trespass counts. With respect to the negligence count, she alleged that it was barred by the three year statute of limitations contained in
I
The defendant first claims that the court should have directed the verdict in her favor on the plaintiffs negligence claim on the ground that it was barred by the three year statute of limitations in
As an initial matter, we set forth the standard of review regarding a court’s refusal to direct a verdict or to render judgment notwithstanding the verdict. “[Appellate] review of a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 32, 761 A.2d 1268 (2000).
Viewing the evidence presented in the light most favorable to the plaintiff, we conclude that the jury reasonably could have found that the deck was not completed until the end of 1991. We note that “[i]t is without question that the jury is the ultimate arbiter of fact and credibility. ... As such, it may believe or disbelieve all or any portion of the testimony offered.” (Citation omitted; internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 544, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). “It is also the absolute right and responsibility of the jury to weigh conflicting evidence . . . .” (Internal quotation marks omitted.) Id., 541. The jury was thus free to disbelieve the defendant’s testimony and Ralph bongo’s affidavit, which were offered to show that the deck was finished in January, 1991. Acting within the scope of its duty, the jury instead chose to believe Ralph bongo’s *227testimony that the deck was not completed until the end of 1991. We conclude that the jury reasonably could have concluded as it did, and, therefore, the court properly refused to direct the verdict or to render a judgment notwithstanding the verdict in favor of the defendant on her special defense of the statute of limitations.
II
The defendant’s second claim is that the court improperly refused to instruct the jury on apportionment of liability among settled or released parties pursuant to
Before the trial began, the defendant provided a written request to charge in which she addressed the issue of apportionment. The court declined to issue the charge as requested. Prior to the charge, however, the defendant’s counsel stated, “Your Honor, there is no charge on apportionment. The jury is not to consider that. That is not an issue.” By abandoning her claim, the defendant, in essence, consented to the jury instruction as given. “When the defendant consented to the instruction, [she] waived [her] right to challenge it later on appeal.” State v. Ruffin, 48 Conn. App. 504, 510, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). Accordingly, we decline to review the defendant’s claim regarding the trial court’s refusal to instruct the jury on the issue of apportionment.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The other defendants are Ralph Longo Construction Corporation, Grant Casperson, GNH Construction Corporation, Pat M. Pulitano, Bernard Grossfield, William J. Marr and the town of Greenwich. Only the defendant Stuttig is involved in this appeal. We refer in this opinion to Stuttig as the defendant.