Baldwin v. Jablecki

• Decision Date: 23 March 1999
• Docket Number: (AC 17917)
• Citation: 726 A.2d 1164,52 Conn. App. 379
• Court: Connecticut Court of Appeals
• Parties: MARYANN BALDWIN v. FRANK JABLECKI ET AL.

52 Conn. App. 379

726 A.2d 1164

MARYANN BALDWIN v. FRANK JABLECKI ET AL.

(AC 17917)

Appellate Court of Connecticut.

Argued January 25, 1999.

Officially released March 23, 1999.

O'Connell, C. J., and Sullivan and Daly, Js.

Arthur C. Laske, with whom was Raymond G. Baldwin, Jr., for the appellant (plaintiff).

Dennis F. McCarthy, for the appellees (defendants).

Opinion

SULLIVAN, J.

The plaintiff, Maryann Baldwin, appeals from the judgment rendered, following a jury trial, for the defendants, Ann Jablecki and Frank Jablecki, on a two count complaint sounding in negligence. The plaintiff claims that the trial court improperly (1) directed a verdict as to the second count of statutory negligence and (2) denied her motion for an evidentiary hearing or to set aside the judgment because of juror misconduct. We affirm the judgment.

The jury reasonably could have found the following facts. The defendants owned and leased to the plaintiff's son an apartment in a three-family house in Bridgeport. On March 11, 1993, at about 7:40 a.m., the plaintiff left the apartment through the front door onto a common porch and fell on the concrete steps due to an accumulation of ice.

The complaint alleged in the first count a breach of duty for failure to remove ice from the steps. The second count alleged violations of the building code that the defendants had failed to remedy. The trial court directed a verdict for the defendants as to the second count, and the jury returned a defendants' verdict as to the first count. The trial court denied the plaintiffs motion to set aside the verdict and to hold an evidentiary hearing of the jurors. This appeal followed.

I

The plaintiff claims that the trial court improperly directed a verdict for the defendants as to the second count of her complaint. We disagree.

At the close of evidence, the defendants moved for a directed verdict as to the second count because the plaintiff failed to produce evidence that proved the statutory violations alleged in her complaint. The plaintiff objected on the grounds that the second count of her complaint alleged common law negligence as well as statutory negligence and that the common law negligence claim should be determined by the jury. Granting the defendants' motion, the trial court concluded that the second count alleged only statutory negligence.¹ The dispositive issue, then, is whether a fair reading of the second count of the complaint reasonably forecloses a common law negligence claim.

"The interpretation of pleadings is always a question of law for the court.... In addition, [t]he allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.... Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 302, 635 A.2d 839 (1993)

. It is axiomatic that the parties are bound by their pleadings.... Geren v. Board of Education, 36 Conn. App. 282, 289, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Kunst v. Vitale, 42 Conn. App. 528, 532, 680 A.2d 339 (1996). Although statutory negligence and common-law negligence may be pleaded in one count; Root v. Connecticut Co., 94 Conn. 227, 108 A. 506 (1919); we do not presume that they have been so pleaded.

We first note that the complaint contains two counts, one clearly based on common-law negligence and the second on statutory negligence. As the trial court noted, an initial reading would suggest that the pleader intended to plead common-law negligence and statutory negligence separately. This is an indicium, but our inquiry cannot end here because the first count arises out of the failure to remove ice and snow whereas the second arises out of the physical structure of the building.

It is undisputed that count two of the complaint alleges at least negligence per se based on building code violations. The plaintiff argues that paragraph four and subsection b of paragraph five also provide a basis for common-law negligence. Paragraph four alleges that the plaintiff "slipped on the dangerous and defective exterior stairs." Subsection b of paragraph five alleges that the defendants should have known of and remedied the "violation/conditions" but did not. A fair reading of the complaint, however, cannot ignore subsection a of paragraph five, which specifies the defects alluded to in paragraph four and provides the antecedents to "these violations/conditions." The defects and negligence alleged in count two are defined in terms of the building code. Indeed, the building code violations are the centerpiece of count two. Moreover, the plaintiffs statutory negligence claim failed because the building was erected prior to the enactment of the building code, not because the plaintiff abandoned the claim in favor of a common-law negligence claim. Because we agree with the trial court that the gravamen of count two is the violation of the building code, we conclude that the trial court properly directed a defendants' verdict.

II

The plaintiff claims that the trial court improperly denied her motion for an evidentiary hearing or to set aside the verdict for juror misconduct. We disagree.

The plaintiff argues that the jurors disregarded their duty to deliberate and to consider the evidence and, instead, delivered a quick verdict to her prejudice because they were inconvenienced by delays, the length of the trial and their service in general. Specifically, she notes that (1) the trial started a day later and ended about a week later than the jury had previously been told; (2) the jurors had to wait in the deliberation room while the trial court held an evidentiary hearing into why an alternate juror failed to appear;² (3) the jurors were further delayed while the clerk's office tried to contact three jurors who had not appeared because of a clerical error;³ and (4) the jurors, having asked the court on the previous day when the trial would end, deliberated for only one and one-half hours before returning a defendants' verdict.

A specific allegation of juror misconduct requires some inquiry by the trial court. State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995). "Where juror misconduct is alleged in civil cases, the rule is that if the prevailing party is not implicated in the misconduct, [t]he burden rests on the moving party ... to demonstrate that the juror misconduct complained of resulted in probable prejudice to him.... Lukstas v. Saint Francis Hospital & Medical Center, 23 Conn. App. 680, 685, 583 A.2d 941 (1990); see Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 37, 674 A.2d 444 (1996). Our Supreme Court has made it clear that a party has been prejudiced by juror misconduct if the misbehavior is such to make it probable that the juror's mind was influenced by it so as to render him or her an unfair and prejudicial juror.... Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984); see Speed v. DeLibero, 215 Conn. 308, 314, 575 A.2d 1021 (1990); Klingeman v. MacKay, 25 Conn. App. 217, 220, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991)." (Internal...