text:
    Carl E. Johnson, Administrator (Estate of Donna M. Johnson), et al. v. New Britain General Hospital et al.
    (12961)
    Healey, Shea, Santaniello, Kulawiz and F. Hennessy, Js.
    Argued February 6
    decision released May 26, 1987

      George E. Tillinghast, Jr., for the appellant (plaintiff).

      Karen P. Blado, for the appellees (defendant George H. Bray et al.).

      John R. FitzGerald, with whom, on the brief, were Roland F. Young III and Jack G. Steigelfest, for the appellees (named defendant et al.).
   Arthur H. Healey, J.

The sole issue on this appeal is whether the trial court erred in denying the plaintiffs challenge for cause of a juror who allegedly had expressed actual bias, prejudice and partiality in his voir dire testimony.

In January, 1986, the plaintiff, Carl E. Johnson, individually and in his capacity as administrator of his wife’s estate, brought this action for medical malpractice against the following defendants: New Britain General Hospital; Dr. David Mucci, a resident intern; Dr. George H. Bray; and the New Britain Surgical Group, Inc., Bray’s professional corporation. The plaintiff’s amended complaint alleged negligence on the part of the defendants in the postoperative care given to the plaintiff’s deceased spouse, Donna Johnson. The first three counts alleged an action for wrongful death, and counts four, five and six sought recovery for medical expenses incurred by the plaintiff.

At trial, numerous expert witnesses testified for both parties and presented their views as to both the cause of the decedent’s death and the quality of the postoperative care which had been given to her. After hearing the testimony and the judge’s instructions on the applicable law, the jury returned a verdict in favor of the defendants.

In this appeal, the plaintiff claims that the trial court erred in overruling and denying his challenge for cause of a juror who, according to the plaintiff, had expressed actual bias, prejudice and partiality in his voir dire testimony.

The record reveals the following underlying facts: On January 17, 1986, after five jurors had already been selected and after the plaintiff had exhausted all of his peremptory challenges juror number 3707 was questioned by counsel. The juror was first questioned by the defendants’ attorneys. After establishing that the juror was a retired dentist who had practiced for thirty years, the defendants’ counsel asked the juror what his general feelings were with respect to malpractice litigation. The juror answered: “I think I would have to say that after thirty years of practice, I probably as most of my cohorts, would have an antagonism against malpractice suits and awards.” The juror stated that his “antagonism” is based on the fact that unjustified claims have been made. The juror went on to acknowledge, however, that some claims are justified and that he could make a fair and impartial judgment of the issues presented by the evidence in this particular case. The juror said that he never had been involved in any litigation involving malpractice.

The juror was next questioned by the plaintiff’s counsel. In response to the attorney’s questions, the juror again indicated that he was antagonistic toward malpractice suits and awards. He told the plaintiff’s counsel, however, that his attitude was general and not specific. He also said that he believed that in certain situations hospitals or doctors render care that is less than the accepted standard and that “despite [his] general view,” he recognized that “some of these suits can be meritorious.” When asked if he would be able to be fair and impartial in making an assessment of damages, he stated: “I think I would be fair. You might not think so.” Upon further examination, he stated: “My general opinion is that many cases are frivolous. . . . Many awards are exorbitant.” When asked by the plaintiffs counsel whether his general feeling about malpractice cases would affect him in this particular case, the juror stated: “I think in specific cases, I could accept any testimony and come out with a conclusion about it.” When asked whether, if he found one of the doctors at fault, he could render a verdict on behalf of the plaintiff, he stated: “I believe I would not hestitate.” When asked if he “would in any way favor the defendants with respect to the award or damages that might be awarded, if [the jury] found for the plaintiff,” he stated: “I do not think so.”

The court also questioned the juror. In response to the court’s question as to whether he would approve of himself sitting on the jury if he were the plaintiff, he initially indicated to the court, “[p]robably not.” In response to further questioning, however, the juror indicated that he misunderstood the court’s question and stated that he would consider himself to be a “fair and impartial juror.”

After the court permitted each party the opportunity for further questioning, the plaintiffs counsel requested that the juror be excused for cause. The court denied the request. In denying the request, the court emphasized that the plaintiffs position lacked legal support. In addition, the court found that the juror was unbiased and that he was capable of rendering a fair and impartial verdict. After explaining its reasons for denying the plaintiffs challenge, the court cautioned the juror not to be influenced by evidence originating from outside the courtroom and to decide the case “solely upon the basis of the law which I am going to instruct you on at the conclusion of this case.” Additionally, the court, in its opening remarks to the jury, explained that the jury was not to discuss the case and that it was not to “try to find out anything about the case from any other source except from what you hear in court.”

I

Initially, we must determine whether the claim of the plaintiff was adequately raised in the trial court. Practice Book § 4185 provides in part that “[t]he supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial . . . . ” The defendants, New Britain General Hospital and David Mucci, argue that the claim raised on appeal was not “distinctly” raised below and, therefore, does not warrant appellate review. We disagree.

At the time the plaintiff moved to excuse this juror for cause, he specifically mentioned that one of the bases for removal was that the juror was biased. The plaintiffs counsel stated, inter alia, “I think that his answers have indicated that this is a bias, which would prejudice the plaintiff in the case. . . . I am arguing, that this juror would be a biased juror . . . [t]his juror said he is antagonistic towards malpractice cases and awards. It is more than that. This is prejudice, this is a bias, this is a partiality. This is more prejudice, partiality or bias, than I have seen in any of the prospective jurors. This is the real thing. This is why I am asking the court to entertain the discretion it has to keep the jury pure and without bias.” On the basis of the foregoing, we conclude that the plaintiff adequately has preserved this claim for review by this court.

II

The plaintiff claims that the voir dire testimony of the juror indicates actual bias on his part and that because actual bias had been established, the plaintiffs challenge for cause should have been granted. Specifically, the plaintiff relies in his brief on the following characterization of the juror’s voir dire testimony as establishing actual bias or prejudice: “[H]is opinion after thirty years of practice as a D.D.S. is that he has an antagonism against malpractice suits and awards . . . that [the] antagonism is based upon unjustified claims having been made . . . he is generally against malpractice cases and awards too because he thinks they are becoming a social burden because of [the dollar] amounts ... he has formed the opinion that he is generally against such claims and actually has a distaste for them ... his general opinion that many cases are frivolous and many awards exorbitant . . . his antagonism is based upon his view that malpractice cases are frivolous, brought frivolously and awards—exorbitant awards . . . that he did not know whether his views would spill over into this case if he were chosen to sit as a juror . . . and his scale of justice is tipped in favor of the defendants at the outset.” The plaintiff argues that “[i]t makes no difference that [the juror] during his voir dire testimony with much equivocation indicated that he could be fair and impartial.” The plaintiff maintains that “[s]uch equivocation coupled with his admissions of actual bias or prejudice . . . called for the trial court ... to sustain the plaintiffs challenge for cause.” We disagree.

In Connecticut, the disqualification of a juror may be based upon the General Statutes or upon the rules of the common law. General Statutes §§ 51-217 (a), 51-240; McCarten v. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925). In this appeal, the plaintiff does not claim that the juror is disqualified by the General Statutes but does claim that the juror should be disqualified under the common law.

At common law, a challenge to an individual juror for bias or prejudice can be either a principal challenge or a challenge to the favor. McCarten v. Connecticut Co., supra. A principal challenge may arise when the connection between the prospective juror and either party is of so close a nature that, when the facts concerning the relationship or interest are proven or when the prospective juror “has formed or expressed an opinion on the question at issue,” the disqualification is conclusively presumed. Id.; see, e.g., State v. Kokoszka, 123 Conn. 161, 164, 193 A. 210 (1937). A challenge to the favor, on the other hand, is one where the connection, being more remote, tends to show bias but does not create a conclusive presumption of bias. McCarten v. Connecticut Co., supra, 542-43. “In such cases, if the court [has] reason to think that bias or prejudice in fact [exists] to such an extent that the juror could not give the parties a fair trial, the juror [should] be held disqualified . . . .” Id., 543. The decision as to the competency of a juror to serve lies in the broad discretion of the trial judge. State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987); State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985); McCarten v. Connecticut Co., supra.

In challenging the competency of this juror to sit on the panel, the plaintiff had the burden of raising his claim of actual bias from “ ‘the realm of speculation to the realm of fact.’ ” State v. Cubano, supra, 90-91; State v. Ziel, supra, 65. In proving actual juror bias, the party challenging for cause must also show that the juror’s state of mind is fixed and settled and not a mere impression. State v. Ziel, supra, 66; State v. Potter, 18 Conn. 166, 174-75 (1846). A mere impression of the case when no fixed opinion has been drawn is an insufficient ground to excuse a juror for cause. State v. Potter, supra. It is not required that the jurors chosen to deliberate be totally ignorant of the facts and issues involved in the case. As the United States Supreme Court has said, “[t]o hold that the mere existence of [a] preconceived notion . . . is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); accord Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); cf. People v. Oddy, 16 App. Div. 2d 585, 229 N.Y.S.2d 983 (1962). “A general, abstract bias or prejudice which a juror may entertain to a class of litigation will not of itself disqualify [a juror] from trying a cause, when it appears that he can set that feeling aside and can and will fairly and impartially decide the particular case solely upon the evidence and the instructions of the court; however, where such bias or prejudice is a fixed and abiding one ... he is disqualified as a juror with respect to an action falling in such class.” 31 Am. Jur., Jury § 183; Casey v. Roman Catholic Archbishop, 217 Md. 595, 605, 143 A.2d 627 (1958).

Mackey v. Greenview Hospital, Inc., 587 S.W.2d 249 (Ky. 1979), is instructive on the issue before us. In Mackey, a malpractice action against a hospital and physicians, the Court of Appeals of Kentucky found no error in the trial court’s failure to sustain certain challenges for cause during the voir dire. In sustaining the trial court, the court stated: “The juror . . . indicated his general antipathy toward medical malpractice actions. He felt that many doctors had been abused in such suits. However, [the juror] was very careful to state that his views on malpractice litigation would have nothing to do with the case being tried. He affirmed that doctors should pay for their mistakes. There is nothing to suggest that [the juror] had any preconceived notion regarding the merits of this case. Likewise, the record does not suggest that [the juror’s] admitted aversion to malpractice litigation would affect his impartiality in weighing the factual issues to be tried. Davidson v. Grigsby, 451 S.W.2d 632, 634 (Ky. 1970).” Mackey v. Greenview Hospital, Inc., supra, 254.

Although this is admittedly a difficult case, we disagree with the plaintiff’s characterization of the juror’s voir dire testimony. While it is true that the juror expressed some antipathy as to both the nature of certain malpractice suits that have been brought in recent years and the size of the awards, the juror did make clear that this antagonism was a generalized opinion held in the abstract and that it would not enter into his consideration of this specific case. The juror never indicated any antagonism toward this particular plaintiff. In fact, the juror stated that “in specific cases, I could accept any testimony and come out with a conclusion about it.” While the juror opined that he believed that many malpractice suits are frivolous and without valid grounds, he also recognized that some malpractice claims are justified and that sometimes plaintiffs with meritorious claims are not adequately compensated. In addition, the juror repeatedly stated that he could be fair and impartial. “While we recognize that a juror’s assurances that he or she is equal to the task are not dispositive ... we are aware of the broad discretion of a trial judge which includes his determination of the credibility to be given a juror’s statement in this context.” (Citation omitted.) State v. Cubano, supra, 92. The determination as to a potential juror’s impartiality, in which demeanor plays an important part, is particularly within the province of the trial judge and the trial judge has broad discretion in deciding whether to excuse a juror for cause. Welch v. United States, 466 A.2d 829, 836 (D.C. App. 1983); Rease v. United States, 403 A.2d 322, 325 (D.C. App. 1979), quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (Clark, J., dissenting); see Mackey v. Greenview Hospital, Inc., supra. Under the circumstances of this case, the trial court did not abuse its discretion in denying the plaintiffs challenge for cause.

There is no error.

In this opinion the other justices concurred.

       After the jury returned with a defendants’ verdict, the plaintiff filed a motion to set aside the verdict and a motion for an evidentiary hearing because of juror bias, partiality and prejudice. Both motions were denied by the trial court. In this appeal, the plaintiff’s only claim of error is the trial court’s ruling on the challenge for cause. The plaintiff has not raised any issue concerning the trial court’s rulings on his postverdict motions.

       At the start of the voir dire examination of this juror, the trial judge was in chambers and not present on the bench. Early in the examination, however, the trial judge returned to the bench at the request of counsel. Outside the presence of the juror, the parties referred the judge to the preceding questions and answers. The immediately preceding questions and answers were read back to the trial judge and the voir dire examination continued in his presence. Addressing counsel, the trial judge said: “I am going to let you all ask as many questions as you want.” Cf. Lamb v. Burns, 202 Conn. 158, 520 A.2d 190 (1987); State v. Rogers, 197 Conn. 314, 497 A.2d 387 (1985); State v. Hill, 196 Conn. 667, 495 A.2d 699 (1985). The trial judge remained on the bench throughout the remainder of the voir dire.

       One defense attorney asked the following question: “As you come here, do you have any preformed opinion or prejudice one way or another with respect to malpractice litigation?”

       The colloquy disclosed the following:
      “[Attorney FitzGerald]: Now, I take it your antagonism is based on unjustified claims having been made; is that right?
      “[Juror]: Yes.
      “[Attorney FitzGerald]: Now, do you recognize however that there are instances where a claim is justified?
      “[Juror]: Of course.
      “[Attorney FitzGerald]: Now, the case that is about to be tried is a case of that type, that is where a patient is suing a hospital and a doctor.
      “I would like to ask you this: Do you think that in sitting on a case of this nature, you could make a fair and impartial judgment of the issues presented by the evidence in the particular case without regard to any feeling which you might have generally about the kind of litigation involved?
      “[Juror]: I would like to hope so.
      “[Attorney FitzGerald]: And I do not mean to press you, sir, but I need a little more definite answer for our record.
      “Can you give us assurance that if you are selected to sit, you could and would be fair and impartial?
      “[Juror]: I believe I would be.
      * * *
      “[Attorney FitzGerald]: So you are telling me that you could sit in the case and fairly and impartially judge the case on the basis of the evidence that is heard in court and the law that the judge says applies to it?
      “[Juror]: Yes.
      * * *
      “[Attorney Tillinghast]: [A]s we were discussing, with respect to your general opinion on the malpractice suits, suits against hospitals and doctors, is it your opinion that that general distaste or antagonism for that type of case will not in any way enter into the deliberation of this case in your assessment of the evidence?
      “[Juror]: I believe this is so.
      “[Attorney Tillinghast]: And, you can assure us then that you are able to take the general opinion that you have of these cases, and completely divorce it from the facts in this particular case? Is that what you are telling us?
      “[Juror]: I believe so.
      “[Attorney Tillinghast]: Now, I may have asked this question before, I am not sure. I think I did. And, if it is a repetitious question, you can tell me so.
      “When we present the evidence and the hospital record and all of the experts in this case, and after you have heard the evidence and heard his Honor’s charge, if you found for the plaintiff in this case and found one or more of the doctors at fault or the hospital at fault or the doctor and hospital or doctor and professional corporation, because of your background and as a dentist, would you have any hesitation in coming in and standing before the court here rendering a verdict on behalf of the plaintiff as against any one or more of those defendants?
      “[Juror]: I believe I would not hesitate.
      “[Attorney Tillinghast]: You would then be able to do that; is that correct?
      “[Juror]: Yes.
      “[Attorney Tillinghast]: Now, taking it a step further. If you did find that there was legal liability or that one or more of the doctors or the hospital was at fault, with respect to the death of Mrs. Johnson, would you be able to deliberate in the jury room and make an assessment of damages or an award of money for the plaintiff? Because as you know, the plaintiff is seeking compensatory damages. Would you be able to do that?
      “[Juror]: Yes.”

       The colloquy included the following:
      “[Attorney Tillinghast]: Now, could you explain for us a little as to what you mean by that statement?
      “[Juror]: Sure. Well, as best I can. I am not against specific malpractice cases, but I think generally I am against them. I said awards too because I think awards are becoming a social burden to us because of the amounts.
      “[Attorney Tillinghast]: Is there anything else that you have—
      “[Juror]: No. I have no specific relationship with any malpractice suit at any time.
      “[Attorney Tillinghast]: I understand. But, this is an opinion that you formed that you generally are against such claims, is that what you are saying, and the awards?
      “[Juror]: Generally yes. Not specifically.”

       At that time, the following occurred:
      “[Attorney Tillinghast]: And, do you believe that in certain situations, that hospitals or doctors could render care that is less than the standard, the accepted standard?
      “[Juror]: Certainly.
      “[Attorney Tillinghast]: Are you aware of that?

        “[Juror]: Sure.
      “[Attorney Tillinghast]: And, despite the general view of these types of suits, you recognize that some of these suits can be meritorious?
      “[Juror]: Of course.
      “[Attorney Tillinghast]: However, if you found in this particular case that the plaintiff had proven his case, would you be influenced when you came to the assessment of damages of the money award?
      “[Juror]: I do not think so.”

       The colloquy discloses the following:
      “The Court: If you were the plaintiff in this case, do you think you would find yourself sitting on this jury, to be an okay thing with you?
      “[Juror]: If I were the plaintiff, would I approve of me?
      “The Court: Yes.
      “[Juror]: Probably not.
      “The Court: Probably not? Why?

        “[Juror]: Because as I told them originally, I have an antagonism towards this sort of case.
      “The Court: Well, I do not care whether they approve of you. Would you consider yourself to be, from the viewpoint of the plaintiff, knowing you as well as you know yourself, would you consider yourself to be a fair and impartial juror in the eyes of the plaintiff?
      “[Juror]: Yes.
      “The Court: Is there any other reason you want to give me why you think you should or should not serve on this jury on this particular case? Of course you-are a professional man, you are a dentist, as I understand it. Is there anything about your being a dentist that you would find yourself, quite aside from your generalized view which I understand you feel that from what you have read, that some malpractice actions are frivolous and some are exorbitant, bring in exorbitant awards, is there anything about your affinity as being a person who spent so many years in the medical profession, that would negate some affinity between you and these medical defendants, that you think would tip you in any way?
      “[Juror]: I think not. I like to think I have a degree of objectivity and I could ignore whatever. And, I have no relationship with these—
      “The Court: I understand.
      “[Juror]: I am a health service, but I was not a physician.
      “The Court: When you rendered the thought that you thought that some malpractice suits are frivolous and some were exorbitant, is your view broad enough also to consider that in your view, that you do believe that probably there are some malpractice suits which are unfair from the point of view that they do not give, for one reason or another, they have not resulted in fair compensation to a plaintiff?
      “[Juror]: Yes, of course.
      “The Court: There are some of those too.
      “[Juror]: Yeah, sure.
      “The Court: Do you believe in the general theory, that if somebody has been damaged, if it is proven to your satisfaction, I mean to the standard to which I instruct you on, that if somebody is damaged, that they should recover?
      “[Juror]: Yes.
      “The Court: They are entitled to recover from the requisite medical people or the hospital whose negligence has been established to your satisfaction?
      “[Juror]: Yes.
      “The Court: You have no question about that?
      “[Juror]: I have no question about that.
      * * *
      “[Attorney Tillinghast]: In response to his Honor’s question, you indicated as far as being a plaintiff, if you were the plaintiff in this case and sitting on the jury, that the antagonism you have for this type of case, would probably be a disqualifying factor? Is that—
      “[Attorney FitzGerald]: I am going to object, you Honor. That is not what the doctor said.
      “[Attorney O’Brien]: Objection.
      “[Juror]: Well, what I first said, maybe it is. I misunderstood where I was supposed to be thinking from when he first asked. I thought he meant if I was sitting down there as plaintiff and I heard me responding to your questions as the plaintiff, I would not want me there. I think what he meant was—
      “The Court: I will tell you what I meant so there will not be any question I will give you a chance.
      “I meant from your honest point of view, from your best judgment, if you were the plaintiff interested in getting a just and fair verdict in there, and knowing you as you know yourself, would you have any hesitancy in having you sit on this jury?
      “[Juror]: I would not.
      “The Court: You would not?
      “[Juror]: Which was my second answer.”

       The court stated: “I have gone through all the cases that I thought had any bearing on this and I have read the case of The State v. Kokoszka, [123 Conn. 161, 193 A. 210 (1937)], which gives me very, very little insight into the particular question raised here. There is not the slightest indication in this case, nor can I find any indication in any case, that a person should be excused by the court because of an opinion expressed about the general propriety or view of a particular civil action or a criminal action.
      * * *
      “I do not find a single case supporting the thesis that because a person has expressed—as a matter of fact, this very case that you cited me has language to the contrary.”

       The court stated: “I have searched my mind and I have searched my heart, and from everything I have heard, there is nothing that leads me to believe this man would be anything but a fair and impartial juror in this case. And, I honestly believe that. And, I am going to deny any requests for challenge for cause.
      * * *
      “There is no reason in my mind to believe that he could not render a fair and impartial verdict, which is why I have got to turn down the challenge.
      * * *
      “It is a difficult decision and I am listening to you very carefully. I am not making it frivolously, but I have searched my mind, I have read the cases, I have read the law, and I come to the decision I cannot bar him for cause.”
      In its memorandum of decision on the plaintiffs motion to set aside the verdict and motion for an evidentiary hearing, the court stated that the juror “was unbiased at the time of the voir dire.”
      This juror was selected as the sixth juror and subsequently was designated as foreperson.

       The court instructed the juror as follows:
      “The Court: I would like to advise you that you have been selected as a juror in this matter. I would tell you at this time, that you are not to try to find out anything about this case or to talk about this case to anybody. You are to make your decision in this case solely upon the evidence that you have heard in this courtroom, solely upon the basis of the law which I am going to instruct you on at the conclusion of this case. And, you are to put aside—not to try to find out about this case from any other source and better, not talk—there are so many witnesses in this case. I am telling you if you start talking to anybody about this case, you are liable to find out there are a lot of witnesses in this case. I am not sure when we are going to be starting this case.”

       The court instructed the jury as follows: “You are not to discuss this case among yourselves until you have heard all the evidence and closing arguments and my instructions to you. . . . And, while it is unlikely that it might be reported in the media, any of the media, if it is, you are not to read about it. You are not to watch it. You are not to try to find out anything about the case from any other source except from what you hear in court.”

       General Statutes § 51-217 (a) provides: “qualification of jurors. (a) (1) All jurors shall be electors, or citizens of the United States who are residents of this state and listed in the records of the motor vehicle department as persons to whom motor vehicle operators’ licenses have been issued, who have no permanent disability impairing their capacity to serve as jurors and who have reached the age of eighteen. For the purpose of this subsection, ‘permanent disability’ shall not include deafness or hearing impairment.
      “(2) This subsection shall apply to jurors selected and summoned to serve on or before August 31, 1986.”
      General Statutes § 51-240 provides: “examination of jurors in civil actions, (a) In any civil action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto.
      “(b) If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines.
      “(c) The right of examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the action.”
      In the trial court, the plaintiff’s counsel raised General Statutes § 51-240 in arguing that the juror be excused for cause. He argued that there was “a close relationship” where “you have a doctor and the parties are doctors” and here, arguing the juror’s “bias,” he stressed “the relationship of the party section of that particular statute.” The court properly rejected the relationship argument finding that there was none.

       The plaintiffs brief specifically states the following: “The [plaintiff has] included Conn. Gen. Stat. § 51-240 (1985) ... for reference by this Court but implementation of this statute is not necessary in order for a trial judge to sustain a challenge for cause based upon actual bias of a prospective juror. Instead the [plaintiff relies] upon case law, and the common law, indicating that when actual bias is proven on the record by admissions in voir dire then the venireman should be disqualified when challenged for cause either by principal challenge or challenge for favor.”

       On the issue of predisposition, the plaintiff lays great emphasis on People v. Oddy, 16 App. Div. 2d 585, 229 N.Y.S.2d 983 (1962). Oddy is inapposite and of little value in this case. In Oddy, the defendants were on trial for felony murder for killing a prison guard. In that case, the court held that the trial court erred in refusing to excuse for cause a juror who expressed concern that his employment experience might interfere with his judgment in the case despite his statement that he “would try to go by the evidence, to be as honest as [he] could be.” Id., 586. The juror, on the voir dire, said that he had been a deputy sheriff for nine years and a prison guard at Attica state prison for thirty years. The juror stated that he was “not positively sure” that he felt he did not have “something in [his] mind which would require more evidence to reach a decision.” Id. He stated that “the evidence would have to be very strong” and that it “could be possible” that in view of his background “the net result would be that [he] would require perhaps a little more or possibly a little less evidence than another juror . . . . ” Id., 586-87. Oddy, fairly viewed, does not avail the plaintiff.

       The plaintiff argues that this juror’s bias was such that it required the plaintiff to sustain a higher burden of proof at trial. During oral argument, the plaintiff placed great emphasis on the following colloquy between the plaintiff’s attorney and the juror:
      “[Attorney Tillinghast]: Would not the scale be just slightly tipped in the favor of the defendant? Just slightly because—
      “[Juror]: Until I heard the evidence and when I heard the evidence, I think I would make an objective conclusion.
      “[Attorney Tillinghast]: Until you hear the evidence then, you start off just slightly tipped, is what you are saying? When you hear the evidence, it might balance out?
      “[Juror]: I suspect that is the right answer.
      “[Attorney Tillinghast]: Is that a fair statement?
      “[Juror]: Sure..
      “[Attorney Tillinghast]: And that slight unbalance, if we cab call it that, is formed by your general opinion that such suits are not liked by you basically; is that right?
      “[Juror]: Okay.
      “[Attorney Tillinghast]: That is a fair statement?
      “[Juror]: Sure.”
      Considering, as we must, the entire far-ranging voir dire which included, inter alia, the close questioning by the trial judge as well as counsel, and the juror’s repeated assertions that his views were general and not specific, and that in an individual case he could be fair and impartial, we disagree that the juror’s general opinion was so fixed as to change the plaintiffs burden of proof. Moreover, the trial judge was present during the voir dire and in a far better position than this court to evaluate the credibility of the juror. Rather than considering this isolated portion of the voir dire in vacuo, he considered all of the testimony. The trial judge did not err in denying the plaintiff’s challenge for cause.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Stamford Apartments Company v. City of Stamford
    (12991)
    Peters, C. J., Shea, Callahan, Borden and Stoughton, Js.
    Argued March 31
    decision released May 26, 1987

      Alice L. Perry, assistant corporation counsel, with whom, on the brief, was Michael Gene Clear, corporation counsel, for the appellant (defendant).

      Lawrence J. Merly, with whom were Joseph J. Tooher and, on the brief, Dominick M. Uva, law student, for the appellee (plaintiff).
   Borden, J.

The defendant, the city of Stamford, appeals from the judgment of a state trial referee, acting as the trial court, reducing the assessed value of the plaintiffs property for the assessment dates October 1, 1981, through October 1, 1985. The defendant claims that the trial court erred: (1) in refusing to accord the defendant’s valuation a presumption of correctness, and by not placing the burden of proof on the plaintiff as to the value of the property; (2) in placing the burden of proof on the defendant as to a claim of discriminatory assessment; (3) in placing the burden of proof on the defendant as to the issues of the highest and best use of the property, and of the most appropriate valuation method; (4) in disregarding the defendant’s claimed overwhelming evidence as to fair market value; and (5) in disregarding a presumption in favor of the method of valuation used by the defendant’s assessor, and in finding that the comparable sales method of valuation was inappropriate. We find no error.

The plaintiff appealed to the trial court, pursuant to General Statutes § 12-118, from the action of the board of tax review of the city of Stamford declining to reduce the valuation of the plaintiff’s property from the valuation placed on it by the city tax assessor on the assessment list of October 1, 1981. By amendment to its complaint, the plaintiff incorporated the assessor’s subsequent identical valuations of the property on the lists of October 1,1982, through October 1,1985. The plaintiff claimed that the valuations were grossly excessive and not in accordance with the applicable percentage of the property’s true and actual value.

The trial court, hearing the case de novo; Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978); found the following facts. The plaintiffs property consists of six five-story apartment buildings containing 330 apartments and 19,000 square feet of professional office space. It is located in a residential multi-family use zone. It has been used as rental apartment buildings continually from the date of construction through the date of the trial. The court further found that the highest and best use of the property was its actual use, namely, as rental apartments and offices. The court also found that the income capitalization approach, based on actual income, was the proper method of appraisal. The court accepted the opinion of the plaintiffs appraiser that the fair market value of the property was $7,500,000, yielding an assessed value, at 70 percent of fair market value, of $5,250,000.

The court rejected the defendant’s claim that the highest and best use of the property was conversion to residential and office condominiums, and that it should be appraised on the basis of that use. The court also rejected the defendant’s claim that the comparable sales method was the most appropriate method of valuation, and that based on this method, the fair market value of the property was $12,429,014, yielding an assessed value of $8,700,310. The court rejected an alternate appraisal offered by the defendant based on the capitalization of income approach.

The court rendered judgment sustaining the plaintiff’s appeal and fixing the assessed value of the property at $5,525,000. After the court further articulated its decision in response to the defendant’s request, this appeal followed.

I

The defendant first claims that the court erred by not according to the defendant a presumption that its valuation was valid, and by not placing the burden of proof on the plaintiff. This claim is without merit.

It is true that when a property owner challenges the assessor’s valuation, “the plaintiffs’ burden ... is a difficult one. ‘[P]roper deference must be given to the judgment and experience of assessors.’ Connecticut Coke Co. v. New Haven, 169 Conn. 663, 668, 364 A.2d 178 (1975). ‘The law contemplates that a wide discretion is to be accorded to assessors, and unless their action is discriminatory or so unreasonable that property is substantially overvalued and thus injustice and illegality result, their opinion and judgment should control in the determination of value for taxation purposes.’ Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 86, 291 A.2d 715 (1971), quoting Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 675, 154 A.2d 608 (1959).” (Emphasis added.) Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 633-34 n.8, 438 A.2d 782 (1981). While we have recognized that proper deference should be accorded to the assessor’s valuation, we have never characterized such deference as a presumption in favor of the validity of the assessment which it is the plaintiff’s burden to rebut.

In this case, moreover, no deference to the assessor’s valuation was warranted. The record indicates that the appraiser employed by the defendant’s assessor for purposes of the 1981 valuation arrived at that valuation by a cost of replacement method. Neither the assessor, nor the appraiser who valued the property in 1981 on the cost of replacement method testified at the trial. The defendant’s appraiser who did testify at the trial, however, agreed with the plaintiffs appraiser that the cost of replacement method was inappropriate. He arrived at a valuation comparable to that of the assessor in 1981 by an entirely different valuation route, namely, condominium conversion as the highest and best use coupled with comparable sales of other converted apartment buildings.

There is nothing in the trial court’s memorandum of decision to suggest that it used an erroneous standard in evaluating the evidence and finding facts. By its finding as to the fair market value of the property, it implicitly found that the defendant had “substantially overvalued” the plaintiff’s property and thus that “injustice and illegality resulted]. ...” Nor is there anything in the memorandum of decision to suggest that the court relieved the plaintiff of its burden to establish that the defendant’s valuation was excessive, or that the court cast a burden of proof on the defendant.

II

The defendant next argues that the court erred by placing the burden on the defendant to disprove the plaintiff’s claim of inequality of assessment, or discriminatory assessment, and by considering that claim as part of the fair market value issue. This claim is based on a gross misreading of the memorandum of decision.

The defendant rests this argument on an isolated sentence in the memorandum of decision, taken out of context, and on the court’s response to the defendant’s motion for articulation to explain that one sentence and its relation to whether the plaintiff or the defendant had the burden of proof. Reading the sentence in its context and together with the court’s articulation makes it quite clear that the court was discussing its reasons for rejecting the opinion of the defendant’s appraiser that the highest and best use of the property was conversion to condominiums. The plaintiff concedes that it did not make any claim of discriminatory assessment. The court did not inject any such issue into the case, as the defendant implies, and did not impose any such burden of proof on the defendant.

III

The defendant’s next claim is that the court placed the burden on the defendant to prove the fair market value of the property, including the burden of establishing the highest and best use of the property. This claim has two aspects. The first aspect simply seeks to persuade us that the court should have accepted the testimony of the defendant’s appraiser rather than that of the plaintiff’s appraiser as to the fair market value of the property. This argument is misplaced. The question of evaluating the credibility of the appraisers is for the trial court, not this court. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220-21, 435 A.2d 24 (1980); see also Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 387, 389 A.2d 734 (1978).

In the second aspect of this claim, the defendant asserts that the trial court improperly placed the burden of proof as to the highest and best use of the property on the defendant. This claim rests on another misreading of the memorandum of decision. At trial, it was the plaintiff’s position that the highest and best use of the property was its actual use as apartment buildings with office space. It was the defendant’s position that conversion of the property to condominiums was its highest and best use. The court stated that the “[appraisers for both parties agreed that each property appraised must be judged individually and that to conclude that probability of conversion to condominiums existed, the purported change must be reasonably probable in the near future. Budney v. Ives, 156 Conn. 83, 88 [239 A.2d 482 (1968)].” The defendant does not take issue with this characterization of its appraiser’s position. The question of the highest and best use of the property as a factor in the ultimate valuation of the property is an issue of fact for the trier, based on his evaluation of the testimony of the appraisers, the claims of the parties, his own general knowledge of the elements of value and any visual inspection of the property which he may have made. Pandolphe’s Auto Parts, Inc. v. Manchester, supra. The court found this fact in favor of the plaintiff. There is no basis in the memorandum of decision for the defendant’s claim of an improper allocation of burden of proof on this issue. It is clear that the language to which the defendant points is a statement of the trial court’s reasons for rejecting the testimony of the defendant’s appraiser on this issue, and does not indicate a misallocation of the burden of proof.

IV

The defendant’s next claim largely repeats its prior claims. The defendant argues that the court erred by disregarding what the defendant claims to be overwhelming evidence that if the property were sold it would be converted to condominiums, and by substituting instead the plaintiff’s actual use for the highest and best use of the property as established by the defendant’s evidence. We disagree. The court specifically found that there was no probability of conversion of the property to condominiums, and that its highest and best use was as rental apartments and offices. These findings were adequately supported by the testimony of the plaintiff’s general partner and of the plaintiff’s appraiser. The defendant would have us substitute our evaluation of the evidence for that of the trial court, which we will not do. Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220.

The defendant’s final claim is that the trial court erred by finding that the comparable sales method of evaluation, offered by the defendant’s appraiser, was inappropriate. This claim is also bereft of merit. In arriving at an actual value of the property, the trial court had “ ‘the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as [it] finds applicable . . . .’” (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 221, quoting Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977). The court in this case specifically found that the most appropriate method of valuation was the capitalization of actual net income method, and explained why it rejected the testimony of the defendant’s appraiser. These findings are adequately supported by the evidence.

There is no error.

In this opinion the other justices concurred.

       In response to the defendant’s request for articulation as to “who had the burden of proof as to fair market value, highest and best use which is a component of fair market value, and the appropriateness of the methodology of appraisal,” the court stated: “It is not the requirement of a request for articulation that the court meet every claim offered by the defendant nor provide a dissertation on the rule of burden of proof.” If the defendant was dissatisfied with this response, it should have moved for review in this court pursuant to Practice Book § 4054 (formerly § 3108). See Barnes v. Barnes, 190 Conn. 491, 493 n.2, 460 A.2d 1302 (1983). Since the defendant did not move for review of the trial court's articulation, we have no reason to conclude that the court improperly allocated the burden of proof.

       The sentence in the memorandum of decision is as follows: “No evidence was produced as to how many multi-family units remained in rental status at that time.” This sentence was, however, part of the following paragraph: “The defendant’s appraiser based [his] testimony as to probability of conversion largely on the existence of 26 sales of multi-family units from August, 1977 to May, 1984. No evidence was produced as to how many multi-family units remained in rental status at that time. Also, it appears that few conversions were made or were probable around October, 1981, when this property was assessed, because of high interest rates and lack of sales. Nor was this property judged individually. No evidence was offered as to the probable cost of conversion, whether leases were such that enough units could be converted to make the project financially feasible or at what price any future condominiums could be sold. Unless such conditions were favorable to a profitable conversion, it is not probable that the owners would convert.”

       The court’s response to the defendant’s motion for articulation in this regard was as follows: “Defendant’s appraiser based much of his determination of highest and best use of the apartment in question on the analysis of 26 sales of rental apartments from 1979 to 1984. In order to evaluate this testimony fairly, the court should have been provided with evidence of how many rental apartments existed in Stamford between the above dates but were not converted to condominium use, how the rental apartments not converted compared to those converted and how both compare to plaintiff’s premises. This he failed to do.”

       The defendant apparently relies for this claim on the paragraph quoted at footnote 2, supra. That paragraph was followed by the following two paragraphs, which make its context even more clear: “There was evidence on the part of a witness for plaintiff that these items had been considered and found not to warrant conversion.
      “The court finds that in October, 1981 and at present, no probability of conversion existed or exists as to the premises in question and their proper assessment should have been as rental apartments and offices.”

       In this claim of error, the defendant also reasserts its claims, which we have rejected, that the court disregarded a “presumption” in favor of the defendant’s assessment, and that the court improperly placed a burden of proof on the defendant.


author: Hull, J.

text:
    James G. Norrie et al. v. The Heil Company
    (12851)
    Peters, C. J., Healey, Shea, Hull and L. Dorsey, Js.

      Argued March 5
    decision released May 26, 1987

      Robert J. Sweeney, with whom, on the brief, were James F. Early and James D. Horwitz, for the appellants (plaintiffs).

      Joseph A. Moniz, with whom was Sally R. Moore, for the appellee (defendant).
   Hull, J.

After a trial to a jury in this strict liability action, judgment was rendered for the defendant. From this judgment, the plaintiffs have appealed, claiming that the trial court erred: (1) in effectively charging the jury that contributory negligence is a defense to an action in strict tort liability; (2) in using special interrogatories which inaccurately described the applicable law and confused the jury; and (3) in accepting a jury verdict finding the conduct of the named plaintiff both foreseeable and not foreseeable.

The jury could reasonably have found the following facts. The plaintiff, James G. Norrie, began working at Connecticut Waste Processing, Inc. (Connecticut Waste), as a driver and unloader of a waste disposal truck in September, 1977. Prior to working for Connecticut Waste, the plaintiff had enrolled in and completed the course at New England Tractor Trailer Training School in Somers to become a licensed tractor trailer truck driver. In addition to this training, the plaintiff had other experience operating tractor trailers. Upon being hired by Connecticut Waste, the plaintiff was trained for two consecutive days in the operation and unloading of a transfer trailer manufactured by the defendant, the Heil Company (Heil), which he was to drive. The training program included, inter alia, instructions on the proper method of unloading the Heil transfer trailer.

The Heil transfer trailer was used to haul trash. The trailer contained two doors at its rear end, a small lower door which was used for loading, and a larger door which was used for unloading trash. The Heil transfer trailer was loaded with trash by first opening the small door and backing the trailer up to a trash compactor, which fit or hitched onto the opening of the small door. The compactor then would push the trash through the small door opening into the empty trailer. The latch mechanism for opening the small door was located in the middle of the rear end of the trailer. This door was properly used only for loading the trash into an empty transfer trailer.

Connecticut Waste did not instruct the plaintiff as to any use for the small door other than for loading the trailer. The plaintiff was instructed by Connecticut Waste that the Heil transfer trailer was unloaded by first opening the large door and then engaging a ram mechanism to push the trash out of the trailer. The large door was opened by pushing down a lever located at the rear end of the trailer, on the passenger’s side. Once the lever was in the down position, the driver would then engage the ram mechanism from the cab of the trailer. The ram, which is located at the front end of the trailer, would then push the load out of the large door of the trailer by hydraulic pressure. The load could not be pushed out of the small door.

The plaintiff’s exclusive duties at Connecticut Waste consisted of hauling trash from a transfer station in New Haven to various landfill dump sites. Depending upon the location of the dump site, the plaintiff would make three to six trips daily. On each trip the plaintiff would load and then unload the Heil transfer trailer.

The plaintiff was aware of the proper method of loading and unloading the Heil transfer trailer as described above. He claimed, however, that there were times when he found it difficult to release, or shift, the lever for the large door. When this occurred, he sometimes would use a two-by-four to pound at the latch mechanism on top of the large door to force the door open. At other times, he would open the small door to relieve the pressure on the large door, and then he would open the large door in the normal fashion.

On October 17, 1978, the plaintiff had made three trips before the accident occurred. On the fourth trip, the plaintiff was unable to release the latch for the large door and thus opened the small door to relieve the pressure. He claimed that when he opened the small door it sprang out, hitting him in the neck and upper shoulder areas. He then opened the large door by the latch and proceeded to unload the trailer.

The plaintiff completed unloading the trailer and returned to Connecticut Waste. He did not seek medical treatment for his injuries until almost six weeks later, when he was treated for neck injuries. The plaintiff underwent surgery in October, 1979, for a fusion of his cervical spine. He was operated on again for the same condition in June, 1980, because the initial fusion “did not take.”

The plaintiff subsequently brought suit under our product liability statutes, General Statutes § 52-5721, et seq. He alleged that the defendant was strictly liable to him because the Heil transfer trailer was defective, unsafe and unreasonably dangerous, and the defects were a direct and proximate cause of his injuries. The defendant raised five special defenses, including product misuse and knowingly using the product in a defective condition. The trial court charged the jury as to the claim of strict product liability and the special defenses. The jury returned a verdict for the defendant. Through the use of special interrogatories, it was shown that the jury found that the defendant had proved “that the misuse or failure to properly load the transfer trailer by the plaintiff was a proximate cause of the plaintiffs injuries.” The plaintiffs motion to set aside the verdict was denied.

I

The plaintiffs first claim is that the trial judge erroneously charged the jury on contributory negligence, which is not a defense to a products liability action. In order to understand the subtle distinction raised in this issue, it is helpful to look briefly at the history of defenses to products liability actions in Connecticut.

Prior to 1977, this court held that contributory negligence in the use of a product, as distinguished from failure to discover a defect, was a defense to a strict products liability claim. See Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976). In 1977, however, the legislature enacted General Statutes § 52-5721. Public Acts 1977, No. 77-335. The following is the pertinent language of the statute: “In causes of action based on strict tort liability, contributory negligence or comparative negligence shall not be a bar to recovery. . . . Nothing in this section shall be construed as barring the defense of misuse of the product or the defense of knowingly using the product in a defective condition in an action based on strict tort liability.”

This statute, therefore, eliminated contributory negligence as a defense to products liability actions, while expressly allowing the defenses of “misuse of the product” and “knowingly using the product in a defective condition.” “[K]nowingly using the product in a defective condition” has been defined narrowly. It “is narrower than the common-law defense of assumption of the risk, which bars recovery when a person knows or as a reasonable person should know that in pursuing a certain course he will expose himself to the risk of injury, comprehends or ought as a reasonable person to comprehend the nature and extent of the risk and voluntarily subjects himself to it. Nally v. Charbonneau, 169 Conn. 50, 53, 362 A.2d 494 (1975).” (Emphasis in original.) Kelly v. Deere & Co., 627 F. Sup. 564, 565 (D. Conn. 1986). In other words, the risk must be assumed knowingly and voluntarily. Mere negligence will not be sufficient to deny recovery.

The other valid defense under General Statutes § 52-5721 is misuse of the product. “Misuse” occurs when a product is not used “in a manner which should have been foreseen by the defendant.” Hoelter v. Mohawk Service, Inc., supra, 517.

We now turn to the jury instruction in question. After reading to the jury the special defenses, the court instructed in relevant part: “[I]t’s basically the defendant’s claim that you’re not supposed to unload this truck—trailer—that way, and again it’s a question of whether or not it was, first of all, a defect unreasonably dangerous and whether or not on the warnings whether or not it was foreseeable by Heil that somebody would get back there and try and open the trailer that way. So that’s for you to decide. . . .

“Now, basically, as I said, the special defenses are a claim of the misuse of the product. If you find that the plaintiff was misusing the product at the time of his injury, then as I said before your verdict would have to be for the defendant. Misuse of a product has been defined as ‘use in a manner not reasonably foreseen by the manufacturer. A manufacturer or seller is entitled to expect a normal use of his product.’ This special defense also incorporates the plaintiff’s, again, I suppose, voluntarily proceeding to encounter a known danger. That’s the defendant’s claim. He’d been dumping these trailers for a long time. He should have known that there was a potential hazard.”

The court charged further: “If you find that the plaintiff knew or should have known of a hazard to which he was exposing himself by unloading it as set forth in the third count of the special defense, or again by failing to follow—you know—the instructions that he was given, that’s for you to determine what instructions he was given, if any, again, then he may not recover under this complaint.

“If you find that he moved to encounter a known danger, and this moving to encounter a danger which he knew or should have known was a proximate cause either of the initial incident or of a subsequent injury, then obviously he’s [not] entitled to recover.”

We conclude that the trial court’s charge did not include contributory negligence as a special defense. When the court charged the jury that misuse is use “ ‘in a manner not reasonably foreseen by the manufacturer,’ ” this charge accorded with well established legal principles. See Hoelter v. Mohawk Service, Inc., supra (Bogdanski, J., dissenting); 2 Restatement (Second), Torts § 402A, comment h; R. Yules, “Defenses in a Connecticut Product Liability Case,” 57 Conn. B.J. 441, 441-42 (1983); D. Epstein, “Products Liability: Defenses Based on Plaintiffs Conduct,” 1968 Utah L. Rev. 267, 270. The language cannot be considered to refer to the kind of contributory negligence that consists of a failure to discover or guard against a defect. Further, although the court erroneously used the language “knew or should have known” in the portion of the instruction referring to the defense of voluntarily and knowingly encountering a risk, the error was not harmful.

A jury charge must be read in its entirety and judged by its total effect. Herb v. Kerr, 190 Conn. 136, 138, 459 A.2d 521 (1983). The charge must be examined as a whole to determine whether it fairly presents a case to a jury so that no injustice results and is not to be examined “ ‘with [a] legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements.’ ” Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981). While the language “knew or should have known” is somewhat suggestive of the concept of contributory negligence, we conclude that the charge, when read as a whole, could not have misled the jury regarding the proper definition of the defense of “voluntarily encountering a known danger.” The court charged correctly on the special defenses, stating no less than three times that one defense was “voluntarily proceeding to encounter a known danger.” We conclude that even though certain portions of the court’s instructions were incorrect, when read in the context of the entire charge, the jury probably was not misled or confused.

II

The plaintiffs second claim is that the court erred in using special interrogatories which inaccurately described the applicable law and confused the jury. The trial court submitted seven special interrogatories to the jury, which read as follows: “(1) Did the plaintiff prove that the design of the lower rear door fastening and release mechanism was in a defective condition unreasonably dangerous for use by the plaintiff in that it required the plaintiff to be in front of the door when opening it? If the answer to this question is yes, go on to the next question. [Yes.] If the answer is no, you must render a verdict for the defendant. (2) Did the plaintiff prove that when the transfer trailer left the possession of the defendant that it was in the defective condition as referred to in Question 1 above? [Yes.] If the answer to this question is yes, go on to the next question. If the answer is no, you must render a verdict for the defendant. (3) Did the plaintiff prove that the defective condition of the transfer trailer as referred to in Question 1 was a proximate cause of (i.e., substantial factor) the plaintiffs injuries? [Yes.] If the answer to this question is yes, go on to the next question. If the answer is no, you must render a verdict for the defendant. (4) Did the plaintiff prove that the lower rear door fastening and release mechanism was defective and unreasonably dangerous in that adequate warnings were not provided? [Yes.] (5) Did the plaintiff prove that the failure to give adequate warning by the defendant was a proximate cause (i.e., a substantial factor) of the plaintiffs injuries? [No.] (6) Did the defendant prove that the plaintiff misused or failed to properly unload the transfer trailer? [Yes.] (7) Did the defendant prove that the misuse or failure to properly unload the transfer trailer by the plaintiff was a proximate cause (i.e.,substantial factor) of the plaintiffs injuries? [Yes.] If the answers to questions 6 and 7 are yes, you must render a verdict for the defendant.”

The plaintiff claims that these interrogatories incorrectly stated the law and confused the jury in that they created the incorrect impression that in order for there to be a duty to warn, there must first be a finding that the product is defective. According to the plaintiff, the directions to special interrogatories Nos. 1, 2 and 3 informed the jury that it need not consider the failure to warn if it did not first find that the defective design was the proximate cause of the plaintiff’s injuries. The plaintiff stresses that this is an incorrect statement of law, inasmuch as a failure to warn can be a defect by itself, not requiring a finding of any other defect. Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 236, 429 A.2d 486 (1980).

In reaching its verdict and in responding to the special interrogatories submitted to it, the jury concluded that the design of the small lower door created an unreasonably dangerous, defective condition, that it was in that condition when it left the defendant, that the defective condition was the proximate cause of the plaintiff’s injuries, and that adequate warnings were not provided. The jury, however, also found that the failure of those warnings was not the proximate cause of the plaintiffs injuries, that the defendant proved that the plaintiff misused or failed to unload the trailer properly, and that the misuse or failure to unload properly was the proximate cause of the plaintiff’s injuries. In summary, the jury concluded that a warning of the defective condition would not have prevented the plaintiff’s injuries as the plaintiff was already aware of the condition which would have been the subject of the warning. These findings are consistent with one another. The jury’s response to the special interrogatories is a strong indication that it understood the issues presented to it. Even if the plaintiffs claim were correct, the error is rendered harmless by the fact that the jury did find that the product was defective in design, and that the defect was a proximate cause of the plaintiffs injuries. Moreover, the jury’s response to special interrogatory No. 4 indicates a finding that there was a failure to warn regarding this alleged defective condition. Consequently, the plaintiff could not have been harmed by these interrogatories; the jury found for the plaintiff on the very interrogatories in question.

The plaintiff was denied recovery because, as is shown by the response to special interrogatory No. 6, the defendant proved that the plaintiff misused or failed to unload the transfer trailer properly. Further, the interrogatories must be considered in conjunction with the court’s instruction. The interrogatories are not vacuous words, but words which are amplified and defined in the charge. Ubysz v. DiPietro, supra, 59-60; Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). In light of our decision on the plaintiff’s first claim of error and the finding that the special interrogatories are consistent, we find no merit to the plaintiff’s second claim of error.

III

The plaintiff’s final claim is that the court erred in accepting a jury verdict that found that the conduct of the plaintiff was both foreseeable and not foreseeable. He asserts that in its responses to the special interrogatories, the jury found that the defendant failed to warn him about a foreseeable risk, while also coming to the contradictory result that the plaintiff’s unforeseeable misuse of the product proximately caused his injuries. He argues that the jury’s responses to those specific interrogatories are inconsistent. We disagree.

Our role in addressing this claim is extremely limited. The trial court’s refusal to set aside the verdict is entitled to great weight in our assessment of the claim that its decision is erroneous. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). The evidence and record must be given the most favorable construction in support of the verdict which is reasonable. Kalleher v. Orr, supra, 127; Murteza v. State, 7 Conn. App. 196, 203, 508 A.2d 449 (1986).

The plaintiff’s claim takes into account only one of the two valid defenses to a products liability action. If “misuse of the product” were the only available defense to the plaintiff’s action, the responses would appear to be inconsistent, as unforeseeability is an element of that defense. The plaintiff, however, has failed to take into account the “knowingly using the product in a defective condition” defense. Foreseeability has no effect on that defense. Special Interrogatory No. 7, to which the jury responded in the affirmative, read as follows: “Did the defendant prove that the misuse or failure to properly unload the transfer trailer by the plaintiff was a proximate cause (i.e., substantial factor) of the plaintiff’s injuries?” (Emphasis added.)

It is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury’s answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers. Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963); Kalleher v. Orr, supra; Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 247, 522 A.2d 829 (1987).

The results of the special interrogatories on the present case are easily harmonized. The jury did find that the defendant failed to warn the plaintiff about a foreseeable risk. It also found that the plaintiff knowingly used a product in a defective condition. These conclusions are not inconsistent, and consequently the plaintiffs claim of error must fail.

There is no error.

In this opinion the other justices concurred.

       The plaintiffs in this action are James G. Norrie and his wife, Susan J. A. Norrie. The term “plaintiff” as used in this opinion refers to James G. Norrie.

       The court instructed the jury on the special defenses as follows: “The first special defense says, ‘Any injuries or losses or damages the plaintiff sustained as alleged in their complaint were directly and proximately caused by the fault of the plaintiff James G. Norrie in that he unloaded the packer trailer improperly although he was trained and operates a packer trailer, but failed to follow instructions for unloading the packer trailer.’ Basically, that special defense—the defendant claims that [in] unloading this packer trailer the operator should have stood on the side of the trailer and used the lever to open the entire door. I think it’s the defendant’s claim that the lower inner door was only supposed to be used for loading the transfer trailer, and that when you are unloading it the whole tailgate was supposed to come open. Now the question being as again it gets into the area of—I told you about foreseeability. Was it foreseeable or not foreseeable by the manufacturer that some operator would get behind it. Again, those are the two things you’ve got to consider.
      “And now the second special defense. ‘If the plaintiff sustained injuries, losses and damages as alleged in the complaint, said injuries, losses and damages were directly [and] proximately caused by the plaintiff James G. Norrie by misuse of the product in question, which misuse was to bar the plaintiff’s claim.’ Well, all it says [is that] he’s making a claim of misuse. That’s one of the claims that I see would be incorporated from what I said before.
      “Number three. Third special defense. ‘Any injuries, losses or damages the plaintiff sustained as a result of the failure to warn were directly and proximately caused by the carelessness of the plaintiff James Norrie in one or more of the following respects. He opened the rear door of the packer trailer improperly although he knew the proper way of opening said door. He failed to follow instructions for properly unloading the packer trailer when he was trained and experienced in the proper way to unload the packer trailer.’ So again, it’s basically the defendant’s claim that you’re not supposed to unload this truck—trailer—that way, and again it’s a question of whether or not it was, first of all, a defect unreasonably dangerous and whether or not on the warnings whether or not it was foreseeable by Heil that somebody would get back there and try and open the trailer that way. So that’s for you to decide.
      “Now the fourth special defense basically only applies to the claim of whether or not the trailer at the time of the injury was in substantially the same condition when it left the defendant’s hands, and I’ve already described that to you so I’m not going to describe that any more.
      “Now the fifth special defense was as to the second count of the complaint, and I’ll get to that a little later on.”

       The defendant objected and excepted to this charge on several grounds, including the one we now address.

       The jury’s responses are shown in brackets after each interrogatory.

       See responses to special interrogatories numbers three and four.


author: Shea, J.

text:
    Raymond G. Alfano, Sr. v. Insurance Center of Torrington
    (12957)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued March 11
    decision released May 26, 1987

      Charles F. Brower, for the appellant (plaintiff).

      John W. Lemega, with whom, on the brief, was Thomas J. Hagarty, Jr., for the appellee (defendant).
   Shea, J.

The plaintiff, Raymond G. Alfano, brought this action against the defendant, Insurance Center of Torrington, for its negligence in failing to procure fire insurance coverage for a building in Torrington that he had bought three days before a fire occurred. The original complaint also contained a malpractice claim against the attorney who had represented the plaintiff in purchasing the property for having failed to advise him of the need for insurance at the time the property was transferred to him. Before trial, the claim against the attorney was settled by a payment of $15,000 to the plaintiff, and the complaint was amended accordingly to withdraw the malpractice claim. The claim against the defendant insurance agency was then tried to a jury, which returned a verdict for the plaintiff, finding that he had sustained damages of $30,000 but had been 35 percent contributorily negligent and thus should be awarded $19,500.

The trial court denied the defendant’s motion to set aside the verdict but ordered a remittitur of $15,000, the amount the plaintiff had received from his attorney in settlement of the malpractice claim, of which the jury had been unaware. Initially, the defendant appealed from the judgment rendered after the court had refused to set aside the verdict. After the court had ordered a new trial pursuant to General Statutes § 52-216a following the plaintiffs refusal to comply with the remittitur, the plaintiff filed a cross appeal. The defendant later withdrew its appeal, leaving only the cross appeal to be decided.

The plaintiff claims the order of remittitur was erroneous for two reasons: (1) there was evidence before the jury that would have supported a finding that he had sustained damages substantially in excess of the $30,000 found by the jury; and (2) the remittitur effectively penalized him a second time for the negligence of his attorney, which the jury, pursuant to the charge, had imputed to him in reducing his recovery by 35 percent because of contributory negligence. We find no error.

I

With respect to his claim that the evidence supported a larger verdict, the plaintiff refers to some testimony that the value of his building on December 24, 1981, when it was destroyed by fire, was greater than the $30,000 found by the jury. He does not contend, however, that the jury was bound to give full credit to this testimony. Although his complaint also alleged other elements of damage, such as the rental value of the building from the date of the fire, interest and attorney’s fees, he has not challenged the refusal of the court to submit these items to the jury for its consideration. The finding of the jury that the plaintiff had sustained damages of $30,000, therefore, cannot be successfully attacked and must be deemed a proper basis for the trial court to have relied upon in ordering the remittitur.

In Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985), this court construed General Statutes § 52-216a, as it had been amended following our decision in Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), to permit a payment by one joint tortfeasor resulting from a settlement before trial to reduce a jury verdict against another joint tortfeasor only where the verdict otherwise would be excessive as a matter of law. “In making its postverdict determination on the issue of any claimed excessiveness . . . the trial court [is] directed to consider the amount of money paid to a plaintiff as the result of [a settlement with another tortfeasor].” Peck v. Jacquemin, supra, 71.

It can hardly be disputed that in this case the award of $19,500 to the plaintiff was excessive as a matter of law, because, when the $15,000 received in the settlement with his attorney is added to that sum, the plaintiff would receive total compensation of $34,500. This amount is $4500 greater than the jury’s finding of $30,000 as the amount of the plaintiff’s loss from the fire. The verdict was, therefore, excessive as a matter of law by $4500, even if the jury had made no deduction for the contributory negligence of the plaintiff.

Like the finding of $30,000 as the total loss the plaintiff sustained, the finding of 35 percent contributory negligence by the jury, corresponding to a reduction of $10,500 in the award, cannot be successfully challenged, nor has the plaintiff attempted to do so. Since the resulting verdict of $19,500 represents a legally unassailable determination of fair compensation for the plaintiff’s loss under our comparative negligence statute, General Statutes (Rev. to 1981) § 52-572h, any additional compensation received by the plaintiff for that loss must be deemed excessive as a matter of law. Accordingly, the trial court’s order that the plaintiff remit the $15,000 he had received in the settlement of his claim against his attorney, of which the jury was unaware in rendering its verdict, was entirely appropriate, unless the effect of the order was to duplicate wholly or partly the $10,500 reduction in the award attributable to the plaintiff’s contributory negligence. The plaintiff does not claim otherwise, but maintains that such a duplication did result from the remittitur order.

II

The plaintiff claims that the finding of 35 percent contributory negligence on his part was based wholly or partly on the negligence of the attorney who represented him in purchasing the property, which was imputed to him under the court’s instructions. Thus he maintains that the remittitur order reduced the award a second time for the same negligence of his attorney that had been the basis for the jury’s reduction of $10,500 in the award. To the extent that the contributory negligence finding may have been based upon the plaintiff’s personal negligence, of course, the application of the payment received from the attorney as a joint tortfeasor would not duplicate any reduction in the verdict corresponding to that finding.

The special defense of contributory negligence pleaded by the defendant relied upon the negligence of both the plaintiff and his attorney in failing to contact the insurance agency before the closing in sufficient time “to obtain coverage on this building which was substandard and not insurable through normal commercial insurers.” The trial court submitted to the jury both the personal negligence of the plaintiff and the negligence of his attorney, which was imputed to the plaintiff, as the basis for finding contributory negligence. In finding contributory negligence on the part of the plaintiff, the jury did not differentiate between his negligence and that of his attorney, imputed to him under principles of agency. See Nowak v. Nowak, 175 Conn. 112, 126, 394 A.2d 716 (1978). Neither party submitted interrogatories for the purpose of resolving this factual question. See Practice Book § 312. It cannot be ascertained, therefore, to what extent, if any, the finding of contributory negligence rests upon the negligence of the plaintiff’s attorney.

The plaintiff contends, however, that there was insufficient evidence to justify a finding of any personal negligence on his part and, therefore, the contributory negligence determination must rest entirely upon the imputed negligence of his attorney. The trial court has rejected this claim in the articulation of its decision that has been filed. That conclusion is adequately supported by the trial transcript. There was testimony that the plaintiff, an experienced businessman, was aware that fire insurance was needed at the time of the closing of title. The mortgage commitment he had received from his bank so informed him, but he failed to contact the defendant agency until after the closing. We agree with the trial court that there was substantial evidence to support a jury finding of personal negligence on the part of the plaintiff, apart from the negligence of his attorney.

The defendant, in contradistinction to the plaintiffs position, maintains that, because it is conceivable that the finding of contributory negligence rests entirely upon the personal negligence of the plaintiff, his argument “that the remittitur constituted a double deduction is nothing more than speculation.” According to the defendant, the general verdict rule forecloses consideration of the claim that the remittitur may have twice penalized the plaintiff for the same negligence, because the actual basis for the jury’s decision remains unknown.

It is not entirely clear that the general verdict rule is applicable to a verdict resolving some issues in favor of the plaintiff and others in favor of the defendant, as in the present case. The usual statement of the rule is that a general verdict for one party raises a presumption that the jury found every issue in favor of “the prevailing party.” Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Colucci v. Pinette, 185 Conn. 483, 489-90, 441 A.2d 574 (1981). The plaintiff would ordinarily be regarded as “the prevailing party,” since he did recover damages against the defendant, but it is plain that he did not prevail on the issue of contributory negligence. Even if the finding of contributory negligence on the part of the plaintiff may be regarded as a separate verdict as to which the defendant has prevailed, the presumption dictated by the general verdict rule that all the issues concerned in that determination must have been decided in favor of the defendant would indicate that the finding was based upon both the personal negligence of the plaintiff and the imputed negligence of his attorney, as the special defense alleged.

Although we find the general verdict rule inapplicable, we nevertheless uphold the trial court’s remittitur order. Since the plaintiff cannot demonstrate that the finding of contributory negligence was based wholly on the imputed negligence of his attorney and the defendant cannot show that it was based wholly on the personal negligence of the plaintiff, it is fair to assume only that it was based partly on each. Accordingly, some part of the $15,000 the plaintiff had received from his attorney should have been applied to reduce the $19,500 verdict, which would otherwise be excessive. The assumption that the jury based its finding on both imputed and personal negligence, however, while useful in establishing that the verdict was probably excessive in some degree, is not helpful in deciding the amount of a remittitur to order. Such a question can only be resolved by submitting a proper inquiry to the jury at a new trial.

When a verdict is excessive as a matter of law, the amount of the remittitur, which the statutes, General Statutes §§ 52-216a and 52-228b, require to be ordered before a new trial may be had, rests largely within the discretion of the trial court. “Its action is entitled to full support unless it abused its discretion.” Allen v. Giuliano, 144 Conn. 573, 578, 135 A.2d 904 (1957). “In determining whether the trial court abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960).

In ordering a remittitur of $15,000, the trial court chose an alternative corresponding to the assumption that the contributory negligence finding was based entirely on the personal negligence of the plaintiff and, therefore, no duplication of the reduction made by the jury could occur. The denial of any remittitur whatsoever would require the assumption that the finding was based wholly on the imputed negligence of the plaintiffs attorney, which had already resulted in reducing the award from $30,000 to $19,500. The trial court was not obliged to select a sum between these two extremes for the purpose of a remittitur, because any basis for doing so must be viewed as speculative.

Under the unique circumstances of this case, the choice made by the trial court in order to comply with the statutes directing a remittitur before ordering a new trial where a verdict is excessive was appropriate. See General Statutes §§ 52-216a, 52-228b. The remittitur order gave the plaintiff the choice of complying therewith or having a new trial where he would have an opportunity to clarify any finding of contributory negligence made by the jury through the use of interrogatories. A refusal to order any remittitur, on the other hand, would have left the defendant without any effective remedy for a verdict that must be deemed excessive unless no personal negligence of the plaintiff was relied upon by the jury in making its finding of contributory negligence, an assumption that is wholly speculative. On an appeal following such a refusal, the defendant could not have demonstrated that the finding of contributory negligence is based wholly upon such personal negligence any more successfully than the plaintiff has shown that the finding rests entirely on imputed negligence. The defendant, however, would have been deprived of the further opportunity to resolve this ambiguity in the finding that the remittitur order provides to the plaintiff through the alternative of a new trial. We conclude that the trial court chose the preferable alternative.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-216a, as amended to the date of trial in 1985, provided: “BEADING OF AGREEMENTS OR RELEASES TO JURY PROHIBITED. ADJUSTMENTS FOR EXCESSIVE AND INADEQUATE VERDICTS PERMITTED. An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”
      In Peck v. Jacquemin, 196 Conn. 53, 60-61, 491 A.2d 1043 (1985), it was held that the amendments to § 52-216a effectuated by Public Acts 1982, No. 82-406, applied to cases tried after its effective date, October 1, 1982, even though the claim may have arisen before that date. The amended version of § 52-216a, therefore, was applicable to this case, in which the jury rendered its verdict on November 25,1985, although the fire loss occurred on December 24, 1981.

       In his brief the plaintiff refers to evidence of the valuation of the property at $30,667 for the purpose of assessment by the town of Torrington. He also refers to testimony of one of his appraisers that the building had a value of “approximately $30,000” and of another that its value was between $50,000 and $55,000.

       We note the amendment to General Statutes § 52-225a, effective October 1, 1986, which requires the reduction of a damages award in a personal injury or wrongful death action by amounts received from collateral sources, including joint tortfeasors. See General Statutes § 52-225b. That amendment, even upon a retrial, would not apply to this action for a fire loss because it is limited to personal injury and wrongful death actions and also because it applies by its terms only to actions “occurring on or after October 1, 1986.”