Schenck v. Pelkey

• Decision Date: 21 November 1978
• Citation: 176 Conn. 245,405 A.2d 665
• Court: Connecticut Supreme Court
• Parties: , 6 A.L.R.4th 481, 25 UCC Rep.Serv. 416 Russell SCHENCK et al. v. Theodore PELKEY et al.

Page 665

405 A.2d 665

176 Conn. 245, 6 A.L.R.4th 481, 25

UCC Rep.Serv. 416

Russell SCHENCK et al. v. Theodore PELKEY et al.

Supreme Court of Connecticut.

Argued Oct. 3, 1978.

Decided Nov. 21, 1978.

Ralph P. Dupont, Boston, Mass., with whom were Kevin T. Nixon, Naugatuck and Robert D. Tobin, New London, for appellants (plaintiffs).

Philip S. Walker, Hartford, with whom were Dean M. Cordiano and Scott P. Moser, Hartford, for appellee (defendant Sears, Roebuck & Company).

Kevin T. Gormley, New Haven, for appellee (defendant Goshen Manufacturing Company).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Associate Justice.

The plaintiff, Russell Schenck, and his father, John Schenck, brought an action in Superior Court against Goshen Manufacturing Company (hereinafter Goshen) and Sears, Roebuck & Company (hereinafter Sears), claiming damages and alleging three counts against each defendant: strict liability in tort, negligence, and breach of implied warranty. The defendants asserted the two special defenses of contributory negligence and assumption of risk. These allegations arose out of an accident that occurred when Russell Schenck used a pool slide in a swimming pool at the home of Theodore and Margaret Pelkey. The slide was manufactured by Goshen, purchased from Sears in 1967, and sold by the original purchasers to the Pelkeys in 1968. The initial complaint was brought against the Pelkeys alone, alleging only negligence. Prior to trial, Sears and Goshen were joined as defendants, the claim against the Pelkeys was settled, and the action was withdrawn as to them. On each of the three counts, the slide was alleged to be "defective" in that it contained no warning or directions for use concerning the size or depth of the pool with which it should be used, or concerning the hazards of headfirst sliding. The case was tried to a jury, which returned a verdict for the remaining defendants, responding in their favor in reply to specific interrogatories on all counts. The trial court denied the plaintiffs' motion to set aside the verdict, and the plaintiffs have appealed, citing as error that denial, certain evidentiary rulings, and portions of the charge to the jury.

From the evidence, the jury could have found the following facts, which were virtually uncontested: The plaintiff, Russell Schenck, sustained quadriplegic injuries on August 10, 1970, while going down a swimming pool slide at the home of a neighboring family, the Pelkeys; he was using the pool with their permission. Russell was then thirteen years old. The pool was above ground, three feet in height, not completely level, and contained 25 to 27 inches of water at the time of the accident. There was a two-foot gap between the end of the slide and the top of the water. Russell was using the pool and slide with a friend, David Hill, and with the Pelkeys' two young daughters. After using the slide twice in the sitting position, Russell began to slide down headfirst. He stopped his slide part way down by grabbing the side of the slide, then continued forward with his arms in back of his body. Without the protection of his hands and arms in front of him, he struck his head on the bottom of the pool, sustaining severe injury. Prior to Russell's injury, the pool slide had been used by the other children without injury, including at least one headfirst slide by David Hill. The slide had also been used without incident for over a year by both adults and children at the home of the previous owners, but they had used the slide with a larger, four-foot pool.

I

The plaintiffs assign as error a number of evidentiary rulings by the trial court: (1) The court admitted the original complaint against the Pelkeys into evidence on the issue of proximate cause; (2) the court excluded from evidence as full exhibits certain literature concerning the safety of pool slides; and (3) the court permitted prior statements of a witness to be used to refresh her recollection. We find none of these rulings to have been in error.

The original complaint against the Pelkeys was introduced into evidence as a judicial admission on the issue of proximate cause. Statements in pleadings that are inconsistent with claims advanced at trial are admissible as judicial admissions. In Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972), we held that a plaintiff's complaint against the drivers of cars involved in an accident was relevant in her subsequent suit against the highway commissioner alleging that icy road conditions had proximately caused her injury. For the same reason, the original complaint was correctly admitted in this case. See also Kucza v. Stone, 155 Conn. 194, 197, 230 A.2d 559 (1967). While Tough and Kucza involved admissions by way of pleadings from separate actions, that is a distinction without a difference, since "(a) superseded pleading remains in the case as a part of its history and is available to the adverse party as an admission." Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591, 594 (1940).

Admission of the original complaint on the issue of proximate cause is not interdicted by § 52-216a of the General Statutes. ¹ That statute forbids introduction in a jury trial of a covenant not to sue, or a release of joint tortfeasor. It is clear that no such covenant or release was ever introduced into evidence in this case, despite the defendants' efforts to the contrary. It would be entirely speculative to assume that the jury, warned that the original complaint had been admitted solely on the issue of causation, would have drawn improper inferences concerning settlement.

The court made a number of evidentiary rulings concerning certain warnings, literature, standards, and test results relating to the safety of pool slides. Some proffered evidence was excluded as hearsay, other as too remote, immaterial, or irrelevant; its admissibility rested within the sound discretion of the trial court; State v. Carbone, 172 Conn. 242, 262, 374 A.2d 215 (1977), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063; Steiber v. Bridgeport, 145 Conn. 363, 366, 143 A.2d 434 (1958). Standards promulgated by the Consumer Product Safety Commission in 1976, nine years after the sale of the slide and six years after the injury, were properly excluded as irrelevant under Tomer v. American Home Products Corporation, 170 Conn. 681, 687, 368 A.2d 35, 38 (1976), which held that "(s)ince the defendants could not be held to standards which exceeded the limits of scientific advances existing at the time of their allegedly tortious conduct, expert testimony tending to show the scope of duties owed could have been properly limited to scientific knowledge existing at that time." For similar reasons, the trial court acted within its discretion in admitting, only for the limited purpose of demonstrating feasibility of warning, the post-1970 warnings of another manufacturer of pool slides, and in excluding a potentially prejudicial film. See Tait & LaPlante, Handbook of Connecticut Evidence, § 9.1(c) (1976).

The plaintiffs' final evidentiary claim on appeal is equally without merit, since again it concerns a matter entrusted to the sound discretion of the trial court. One of the plaintiffs' witnesses was a young girl, Tracey Pelkey, who was eight years old at the time of the accident, and fourteen years old at the time of the trial. Her testimony concerned the place on the slide where Russell had stopped before proceeding to push himself off into the pool. Her original testimony at trial allegedly differed from that contained in a prior deposition and in a prior statement temporally nearer to the time of the accident. The court permitted the defendants' counsel to refresh her recollection by showing her these allegedly contradictory statements, and she then modified her testimony. Whether there was a need for her recollection to be refreshed and whether in all the circumstances it was appropriate to do so were questions for the trial court's exercise of discretion. State v. Grimes, 154 Conn. 314, 322, 228 A.2d 141 (1966).

II

The plaintiffs' assignments of error concerning the charge to the jury raise questions about the charge with respect to each of the plaintiffs' various counts. Since the jury returned verdicts for the defendants on each count, it is appropriate to consider separately objections to the charge on the issues of strict liability in tort, negligence, and breach of warranty.

With respect to strict liability in tort, the plaintiffs claim that the trial court erred in its statement of contributory negligence as a defense. The trial court charged, in accordance with Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 505-506, 365 A.2d 1064 (1976), that contributory negligence is a defense to strict liability when the plaintiff's conduct involves misuse of the product, but not when the conduct consists of a mere failure to discover the defect in the product or to guard against the possibility of its existence. This charge accurately stated the law of Connecticut at the time of the accident, and at the time of the trial. Thereafter, the General Assembly enacted a statute, 1977 Public Acts, No. 77-335, abolishing the defense of contributory negligence in causes of action based on strict tort liability. Although Public Act 77-335 is in terms applicable to all actions "pending on or brought after the effective date (June 7, 1977) of this act," that statute cannot govern this case, in which judgment was entered more than five months before the effective date of the act. After the entry of judgment, an action is no longer "pending." See Salem Park, Inc. v. Town of Salem, 149 Conn.141, 144, 176 A.2d 571 (1961); Walsh v. Gurman, 132 Conn. 58, 65, 42 A.2d 362 (1945), cert. denied, 326 U.S. 719, 66 S.Ct. 24, 90 L.Ed. 426.

With respect to negligence, the plaintiffs claim error in the court's failure to charge on the defendants' duty to test their...