Alpha Crane Service, Inc. v. Capitol Crane Co.

• Citation: 504 A.2d 1376,6 Conn.App. 60
• Decision Date: 21 January 1986
• Docket Number: Nos. 2835-2841,s. 2835-2841
• Parties: ALPHA CRANE SERVICE, INC., et al. v. CAPITOL CRANE COMPANY et al. v. Paul J. APARO, Administrator (ESTATE OF Steven J. PALMERI) v. UNITED TECHNOLOGIES CORPORATION et al.
• Court: Connecticut Court of Appeals

Page 1376

504 A.2d 1376

6 Conn.App. 60

ALPHA CRANE SERVICE, INC., et al. v. CAPITOL CRANE COMPANY et al. v. Paul J. APARO, Administrator (ESTATE OF Steven J. PALMERI) v. UNITED TECHNOLOGIES CORPORATION et al.

Nos. 2835-2841.

Appellate Court of Connecticut.

Argued Oct. 8, 1985.

Decided Jan. 21, 1986.

Jeremiah M. Keefe, with whom was James E. Kernan, Waterbury, for appellant in both cases (defendant Wetherell Corp.).

William R. Davis, with whom was Michael C. Jainchill, Hartford, for appellant in the second case (plaintiff Paul J. Aparo).

Stephen C. Lattanzio, with whom, on the brief, was Albert G. Murphy, Hartford, for appellees in the first case (plaintiff Alpha Crane Service, Inc., et al.).

Joseph G. Lynch, with whom, on the brief, were John W. Lemega and Karen E. Young, Hartford, for appellee in both cases (defendant Capitol Crane Co.).

John R. FitzGerald, with whom were Constance L. Epstein and, on the brief, James T. Haviland II, Hartford, for appellee in both cases (defendant United Technologies Corp.).

Before SPALLONE, DALY and BIELUCH, JJ.

BIELUCH, Judge.

These appeals arise out of the denial by the trial court of seven motions to set aside various verdicts rendered in two actions consolidated for trial. The two cases are the result of a construction accident in which a crane operator died and a crane was damaged. The appellants have claimed a total of sixteen errors on appeal. We find error.

Because of the complex nature of these appeals, preliminary facts are set forth as follows, and detailed facts will be outlined in the discussion of specific issues. The jury could reasonably have found the following facts. The defendant United Technologies Corporation (UTC) contracted with the defendant Wetherell Corporation for the latter to dismantle and transport to a storage area large exhaust ducts from UTC's Wilgoos Gas Turbine Laboratory. In connection with that contract, Wetherell hired the defendant Capitol Crane Company to assist by lowering the heavy pieces of ductwork to the ground. The size and weight of the dismantled ductwork, however, made it necessary to engage a second crane to assist in the operation. For that purpose, the plaintiff Alpha Crane Service, Inc., was employed.

On September 5, 1978, while lowering an elbow section of ductwork weighing approximately twenty tons, the choker cable suspending the elbow from the boom of Alpha's crane broke. The elbow dropped onto the cab of Alpha's crane, crushing it, and killing the crane operator, Steven J. Palmeri, the plaintiff Aparo's decedent.

As a result of the accident, two separate actions were instituted against the defendants UTC, Wetherell and Capitol jointly: (1) Alpha Crane Service, Inc. v. Capitol Crane Co. (Alpha's case), ¹ an action for damage to the crane; and (2) Aparo v. United Technologies Corporation (Aparo's case), an action for the wrongful death of Steven J. Palmeri. The defendants responded to these actions with an avalanche of answers, special defenses, cross claims and counterclaims.

Aparo's case and Alpha's case were consolidated for trial. The jury, in two separate phases of deliberation, found only Wetherell to be liable to the plaintiffs. In addition, Capitol and UTC were each awarded damages from Wetherell on their cross claims. Wetherell and Aparo filed motions to set aside these bifurcated verdicts on various grounds. The motions were denied and appeals taken from the denials.

I

At trial, UTC called Robert DeBenedictis to testify as an expert witness on crane and rigging safety. UTC first disclosed its intent to call DeBenedictis as a witness on Monday, September 12, 1983, approximately three weeks into the trial. The disclosure was made as a supplemental response to an interrogatory, propounded by Aparo about three years earlier, requesting the names of all experts expected to testify, and the subject matter of their anticipated testimony.

Four days later, on Friday, September 16, 1983, DeBenedictis was called to the stand and counsel for Aparo immediately objected to his offered testimony on the ground of insufficient notice of UTC's intended offer to allow proper preparation for cross-examination. After a lengthy series of arguments and a conference in chambers, the court ruled that DeBenedictis would be allowed to testify on the following Tuesday when court reconvened. The court also granted an early adjournment that day to allow the parties to depose DeBenedictis in the courtroom during the afternoon, four days prior to his testimony.

Aparo now claims that the court erred in permitting DeBenedictis to testify at all. In support of this claim, Aparo points to Practice Book § 231 which provides for sanctions where a party has "failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead." Aparo asserts that by its delay in supplementing its disclosure, UTC failed to answer the interrogatory fairly and thereby prejudiced Aparo's ability to prepare his case. In response, UTC contends that DeBenedictis was disclosed fairly to Aparo as soon as the decision was made to call him as a witness. Although, by the admission of counsel for UTC, DeBenedictis had been in court earlier in the trial, and although he had examined some of the exhibits during court recesses on those occasions, UTC did not decide to call him to the stand until September 8, 1983, four days before his disclosure. At that point, the supplemental disclosure was prepared and filed on the next court day. Aparo did not object to the witness until DeBenedictis took the stand four days later, despite the fact that he had prepared a brief on this issue in anticipation of an offered objection.

The court properly concluded that "no one here is without fault in this situation." Aparo could have given far more notice of his objection than he did, but UTC was also at fault for failing to prepare its case fully and to disclose its expert despite having had more than three years in which to do so.

The decision to impose sanctions such as the possible exclusion of DeBenedictis' testimony rested in the trial court's discretion. Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 107, 476 A.2d 1074 (1984). Here, the court's decision to allow the testimony, after a deposition of the witness, adequately served to inform opposing counsel of both the existence of the witness, and the nature of his testimony. Further, his testimony before the jury was limited strictly to the scope of the deposition. Under these circumstances, it cannot be said that the plaintiff was prejudiced or that the trial court abused its discretion in ruling as it did. Although sanctions should be imposed to deter those who would use trial-by-ambush tactics; Id., 108, 476 A.2d 1074; the trial court is in the best position to assess the intent behind the behavior of the offending party and, therefore, its decision must be given great weight and deference. See id.

II

Aparo's second claim of error is that the court erred in denying his motion to set aside the jury's verdict in favor of the defendant UTC. " 'The ruling of the trial court on a motion to set aside a verdict is entitled to great weight.' Darling v. Burrone Bros., Inc., 162 Conn. 187, 200, 292 A.2d 912 (1972)...." Hearl v. Waterbury YMCA, 187 Conn. 1, 3, 444 A.2d 211 (1982). The jury's verdict must stand " 'if [it is] one at which honest men acting fairly and intelligently might arrive reasonably ... even though the opinion of the trial court and this court be that a different result should have been reached.' Horvath v. Tontini, 126 Conn. 462, 464, 11 A.2d 846 (1940)." Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980); see also Trzcinski v. Richey, 190 Conn. 285, 299, 460 A.2d 1269 (1983). In the present case, the transcript reveals that the testimony, although not entirely favorable to UTC, was susceptible of the reasonable interpretation that Wetherell was liable to Aparo to the exclusion of UTC. Consequently, the trial court was correct in refusing to set aside the jury verdict in favor of UTC.

III

Despite the order of the court, Dupont, J., consolidating the Alpha and Aparo cases for trial, counsel for Wetherell moved, at the commencement of jury selection, on August 9, 1983, that the trial of the cross claims and counterclaims between the respective defendants be severed from the trial of the plaintiffs' actions. The court, Hon. Harold Missal, state trial referee, ordered that the cases be tried together unless Judge Dupont's permission to sever was obtained. Although the record does not reflect whether such permission was, in fact, requested, the motion to sever was renewed before the commencement of evidence, was denied again, this time unconditionally, and an exception was taken to that ruling.

From August 24, 1983, until September 21, 1983, evidence was taken at trial. On September 15, 1983, Judge Missal ruled that the jury's deliberations would be separated into different parts, the first of which would be to consider Aparo's case against the three defendants. The court reserved deliberation on all other claims between the various parties in the Aparo and Alpha cases until after a verdict was reached as to the plaintiff's claims in Aparo's suit.

On September 30, 1983, the jury completed its first deliberation and returned a verdict in favor of the plaintiff Aparo, solely against the defendant Wetherell, in the amount of $700,000. Thereafter, the court submitted all of the remaining issues to the jury on October 4, 1983. At this time the court submitted the first count of UTC's two cross complaints to the jury for a determination of damages only. UTC's motions for summary judgment as to liability on these counts had been granted one day earlier, at which time the remaining counts were withdrawn. The court also directed a verdict for Capitol on the first count of its cross complaint against Wetherell and...