Callender v. Lakewood Realty Co.

• Decision Date: 04 August 1967
• Docket Number: No. CV,CV
• Citation: 4 Conn.Cir.Ct. 556,237 A.2d 106
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: Richard CALLENDER v. LAKEWOOD REALTY COMPANY, Inc., et al. 14-666-23020.

Page 106

237 A.2d 106

4 Conn.Cir.Ct. 556

Richard CALLENDER v. LAKEWOOD REALTY COMPANY, Inc., et al.

No. CV 14-666-23020.

Circuit Court of Connecticut, Appellate Division.

Argued May 15, 1967.

Decided Aug. 4, 1967.

Robert L. Trowbridge, Hartford, for appellants (defendants).

Seymour P. Dunn, Hartford, for appellee (plaintiff).

JACOBS, Judge.

The plaintiff sued to recover damages for personal injuries resulting from a blast of gas which exploded while he was attempting to light the gas oven in Richard's Bake Shop, owned and operated by the defendants, and located in the town of Wethersfield. Trial in the court below resulted in a verdict and judgment in favor of the plaintiff for $2500. On this appeal from the judgment, the defendants claim that the court erred (1) in denying the defendants' motion to set aside the verdict because the verdict was not supported by the evidence and the damages awarded were excessive; and (2) in refusing to charge the jury as requested.

We first consider the attack upon the denial of the motion to set aside the verdict upon the ground of insufficiency of the evidence. For the attack on the court's refusal to set aside the verdict to successed, it must appear that the evidence furnished no reasonable basis for the conclusion of the jury that the defendants were negligent and that they failed to sustain their burden of proving that the plaintiff was chargeable with contributory negligence and had assumed the risk of what befell him. See Petrizzo v. Commercial Contractors Corporation, 152 Conn. 491, 499, 208 A.2d 748, 752. 'In our approach to that issue, the evidence must be given the most favorable construction to which it is reasonably entitled in support of the verdict.' Ibid.; see Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449; Petrillo v. Bess, 149 Conn. 166, 167, 179 A.2d 600. 'We are hampered in our review of this ruling by the court's failure to file any memorandum accompanying and explaining its denial of the motion. * * * While a memorandum of decision is not legally required on the denial of a motion to set aside the verdict, but only on the granting of it (Practice Book § 256), it is sound practice, where, as in this case, the motion is not frivolous, to set forth in a memorandum the basic reasons why the motion is denied.' Lancaster v. Bank of New York, 147 Conn. 566, 573, 164 A.2d 392, 395; see Lombardi v. J. A. Bergren Dairy Farms, Inc., supra, 153 Conn. 21, 213 A.2d 449. 'Even without such a memorandum, however, the court's denial of the motion is entitled to considerable weight. Although we have not the reassurance which a carefully prepared memorandum would have furnished, we should assume that the court properly performed its function in passing upon the motion.' Lupak v. Karalekas, 147 Conn. 432, 433, 162 A.2d 180, 181; see Putney v. Lehigh Truck Equipment Corporation, 145 Conn. 731, 732, 141 A.2d 482. ¹

There was evidence in the record from which the jury could have found these operative facts: For a period of some seven years prior to March 15, 1964, the plaintiff owned and operated Richard's Bake Shop, in Wethersfield. In the latter part of December, 1963, the plaintiff decided to put the bakery shop up for sale and, in pursuance of his plans, placed an advertisement for the sale of his business in a newspaper. Abraham Piasek, the other defendant in this action, was the only prospective customer who responded to the advertisement and came forward with a reasonable offer. Negotiations leading to the sale were carried on. For a week prior to the consummation of the sale of the business, Piasek came to the bakery every day and was fully and carefully instructed by the plaintiff on the normal day-to-day operation of the bakery business, including the proper method of lighting the oven. The oven was of a Ferris-wheel type, electrically driven, but was gas-fired for baking purposes. The main gas supply of the burners passed through a thermostatically controlled regulator so contrived that, when the desired heat was attained, the supply was automatically cut off, but when the temperature fell below the required level, the supply recommenced to pass through the burners. The master control switch controlled the flow of gas into the burners, but the pilot light remained at all times independent of and separate from the master control. In other words, the burners could be shut off and the supply of gas cut off, but the pilot light remained unaffected by either the master control switch or the flow of gas into the burners. On March 16, 1964, the last day of business prior to the transfer of title from the plaintiff to the defendants, the plaintiff, in the presence of Piasek turned off the master control switch, put out the pilot light, and shut down the oven wall.

On March 17, 1964, at about 5 a.m., Piasek called the plaintiff by telephone and reported that he undertook to fire the oven but was unable to do so. The plaintiff, who lived in Windsor, got dressed and proceeded at once to the bakery. Upon his arrival there, Piasek told the plaintiff that he had shut off the flow of gas into the burners, whereupon the plaintiff, as was his long-established custom over the years, obtained a straw and 'lit the straw (at) waist level; then reached down into the slot where the pilot light * * * (was located) * * * (and before he) had a chance to do that, the oven blew.' The force of the explosion knocked the plaintiff over backwards; the front windows of the bakery were blown out and the glass showcases and partitions were shattered. As an aftermath of the explosion, the plaintiff suffered first- and second-degree burns of the face and second-degree burns of the dorsum of the right hand; his mouth and lips were blistered and his eyebrows burned. He was disabled to the extent that he was out of work for a period of eleven days.

The defendants were sued in negligence. Negligence is a breach of duty. Ordinarily, a conclusion of negligence is one of fact. Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79; Palombizio v. Murphy, 146 Conn. 352, 358, 150 A.2d 825, 73 A.L.R.2d 1173, 65A C.J.S. Negligence § 269; 9 Wigmore, Evidence (3d Ed.) § 2552. This is so because 'the law itself furnishes no certain, specific, sufficient standard of conduct, and, of necessity, leaves the trier to determine, both what the conduct is, and whether it comes up to the standard, as such standard exists in the mind of the trier. In a case of this kind the inference or conclusion of the trier, upon the question whether the ascertained conduct does or does not come up to such standard, is * * * called a 'question of fact', and, generally speaking, it cannot be reviewed by this court. If such inference is drawn by a jury, it is final and conclusive because their opinion of what a man of ordinary prudence would or would not do, under the circumstances, is the rule of decision in that special case.' Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 250, 21 A. 675, 677; see Cappiello v. Haselman, supra; Palombizio v. Murphy, supra.

It was the claim of the defendants that on the issue of negligence the jury were 'left to guess as to the cause of the explosion as there was not one word of testimony on causation.' 'In short,' the defendants contended, 'the plaintiff failed to introduce any evidence of any negligent act of the defendants on which the jury could predicate a finding of liability.' We cannot agree with this contention.

It was incumbent upon the plaintiff to allege some recognizable cause of action in his complaint. Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22, 213 A.2d 449, 450; Stavnezer v. Sage-Allen & Co., 146 Conn. 460, 461, 152 A.2d 312. Moreover, '(i)n a negligence action it is incumbent upon the plaintiff to allege and prove not only the negligence of the defendant but a causal relation between the negligence alleged and the damages claimed. A causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case. Hence, this causal relation must be alleged and proved.' Lombardi v. J. A. Bergren Dairy Farms, Inc., supra. 'In the establishment of causation between negligence and injuries which follow, the court is not concerned with possibilities but with reasonable probabilities. * * * The correct method of determining the existence of the causal relationship is to look back from the injury to the negligent act.' Palombizio v. Murphy, supra. 'The test to be applied was, 'would the ordinary man in * * * (Piasek's) position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Collins v. City National Bank & Trust Co., 131 Conn. 167, 170, 38 A.2d 582, 583, 153 A.L.R. 1030. 'In the last resort, the practical task of drawing the line where recovery should cease is one which defies precise verbal definition and formulation in fixed rules.' Fleming, Torts, p. 186. '(T...