Acampora v. Ledewitz

• Decision Date: 19 May 1970
• Citation: 159 Conn. 377,269 A.2d 288
• Court: Connecticut Supreme Court
• Parties: Bridget ACAMPORA et al. v. William LEDEWITZ et al.

Page 288

269 A.2d 288

159 Conn. 377

Bridget ACAMPORA et al. v. William LEDEWITZ et al.

Supreme Court of Connecticut.

May 19, 1970.

Howard F. Zoarski, New Haven, for appellants (defendants).

Albert R. Annunziata, New Haven, with whom were Frank Toro, Jr., and, on the brief, Jerrold H. Barnett, New Haven, for appellee (named plaintiff).

No appearance for appellee (plaintiff Mercury Sportswear, Inc.).

Before ALCORN, HOUSE, THIM, RYAN and SHAPIRO, ^* JJ.

SHAPIRO, Associate Justice.

This is an action in negligence in which Bridget Acampora, hereinafter referred to as the plaintiff, claimed that she was injured as a result of the failure of the defendants properly to maintain a parking lot which they owned in New Haven. The plaintiff was employed in a building owned by the defendants and leased to several businesses, including the plaintiff's employer. A parking lot in front of the building was used by employees working in the building. On her way to take a bus home from work, the plaintiff walked across the defendants' parking lot, where she slipped on some snow and ice and was injured. After a verdict and judgment for the plaintiff the defendants appealed to this court.

The defendants' first and main claim of error is that the court erred in denying their motion for a directed verdict. This motion was grounded on the claim that while the plaintiff alleged that the place of her fall was at a certain location the only evidence adduced at the trial indicated that the fall occurred approximately eighty feet away. The defendants further claim that this variance between the proof and the pleadings was a material one and that they were surprised by the evidence and, because of the changed location, were put at a disadvantage in preparing a defense.

As far as the record indicates, defense counsel did not object to the admission of the plaintiff's testimony as to the place of the fall. Had counsel objected, and if it is assumed that the proof did materially vary from the pleadings, the evidence should have been excluded. Conti v. Brown, 149 Conn. 465, 468, 181 A.2d 591. At that time the plaintiff would have had an opportunity to request permission to amend her complaint, and the court would have had the opportunity to exercise its discretion as to whether to permit the amendment and, if it was granted, to determine what conditions were necessary to protect the rights of the defendants. Practice Book § 134; State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13; James, Civil Procedure §§ 5.4-5.8. Here, where the defendants failed to object to the admission of evidence which was claimed to be at variance with the pleadings, the issue of amending those pleadings was not brought before the court, and thus the defendants have, in effect, waived the objection. Indeed, we have repeatedly held that the proper way to attack a variance is by objection to the admissibility of evidence which varies from the pleadings rather than by a motion to set aside the verdict. State v. Rafanello, supra; Chapin v. Popilowski, 139 Conn. 84, 86, 90 A.2d 167; Broderick v. Hart, 97 Conn. 492, 495, 117 A. 491. Thus, it was not sufficient for the defendants to have raised the issue of variance by a motion for a directed verdict. See James, op. cit. § 5.8; see also Ditmars v. Grand Stores, Inc., 134 N.J.L. 570, 49 A.2d 286.

The defendants make several claims of error in regard to rulings on evidence. The plaintiff testified that she had walked across the defendants' parking lot in the evening, when she fell, along the same route she had taken on the way to work that morning. Defense counsel then read from a deposition in which the plaintiff had indicated that she had taken different routes to and from her place of employment on the date of the fall. Defense counsel attempted to read from the deposition a statement made by the attorney representing the plaintiff at the time of the deposition which also indicated that the plaintiff had taken different routes. After objection, the court excluded this testimony. Whether or not this evidence might have been admissible under an exception to the hearsay rule, the court's ruling cannot be upset. Defense counsel, of course, had the duty to state to the court the proper grounds for the admission of this evidence. Practice Book § 226; Krattenstein v. G. Fox & Co., 155 Conn. 609, 612, 236 A.2d 466; Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153. In response to the objection, defense counsel stated, 'It's very relevant. Her attorney was there with her. He took part in the conversation. It's all part of the deposition.' Then he added that the statement of the plaintiff's attorney had 'a direct bearing on this woman's testimony at this time.' Certainly neither of these statements would have indicated to the court any recognizable exception to the hearsay rule under which the attorney's statement might have been admitted. Since, although the defendants did state grounds for the admission of the evidence, they were not valid ones, this claim must fail. Casalo v. Claro, supra.

The defendants also claim error in the court's refusal to permit them to introduce into evidence their motion for a more specific statement and the plaintiff's compliance with that motion. The defendants sought to introduce these as exhibits in order to establish a judicial admission on the part of the plaintiff. The plaintiff's compliance with the motion was, however, in substance a part of the record as contained in the substituted complaint and was available to the jury without the necessity of the motion and its compliance having been made exhibits in the case. There was no error in the ruling.

The defendants also make several claims of error in regard to the court's refusal to charge as requested. The first deals with the allegation of the plaintiff that she fell upon the parking lot provided for employees of the company where she worked. The plaintiff, apparently wishing to take a shorter route, walked over the parking lot in leaving the building rather than over a concrete sidewalk which was available to her. The defendants requested that the jury be charged to the effect that the plaintiff may have lost her status as an invitee once she walked across the parking area rather than the sidewalk. In support of their claim, the defendants rely on cases such as Dickau v. Rafala, 141 Conn. 121, 125, 104 A.2d 214, and Guilford v. Yale University, 128 Conn. 449, 454, 23 A.2d 917. But these cases differ significantly from the case at bar in that each involved the issue of whether an invitee had wandered off into an area which was not open to his use and which he could not have reasonably anticipated would be open for his use. In the present case there is nothing in the claims of proof to indicate that the parking area was a restricted area so far as the plaintiff was concerned, and indeed all the evidence indicates that the lot was for the use of all employees. The claim that the plaintiff neglected to walk along a sidewalk but rather took a shortcut across the parking lot is relevant to the...