City of Hartford v. Anderson Fairoaks, Inc.

• Citation: 7 Conn.App. 591,510 A.2d 200
• Decision Date: 03 June 1986
• Docket Number: No. 3368,3368
• Parties: CITY OF HARTFORD v. ANDERSON FAIROAKS, INC., et al.
• Court: Appellate Court of Connecticut

Page 200

510 A.2d 200

7 Conn.App. 591

CITY OF HARTFORD v. ANDERSON FAIROAKS, INC., et al.

No. 3368.

Appellate Court of Connecticut.

Argued Feb. 10, 1986.

Decided June 3, 1986.

Louis R. Pepe, Hartford, for appellant (plaintiff).

Louis B. Blumenfeld, Hartford, filed a brief, for appellees (defendants John W. Huntington et al.).

Before BORDEN, SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

This appeal arises out of a judgment for the defendants John W. Huntington, ¹ Henry Darbee and John L. Dollard, ² who were the architects employed by the plaintiff in connection with the construction of the Burgdorf Health Center in Hartford. The plaintiff has appealed to this court after its motion to set aside a defendants' verdict was denied. The plaintiff claims error in several of the trial court's rulings and in its charge to the jury. We find error.

The jury could have reasonably found the following facts. In 1966, the plaintiff contracted with the defendants for their design and construction services pertaining to the Burgdorf Health Center. Pursuant to that contract, the defendants provided the plaintiff with drawings and specifications for the project. The plaintiff then solicited bids for its construction. All of the bids received exceeded the amount which had been appropriated by the plaintiff for the facility, however, and the bids consequently were rejected.

The defendants, in particular Henry Darbee, then reworked the plans and specifications for the project subsequently built. These reworked plans included variations in the design and specifications of the built-up roof system for the building. While both designs consisted of a level structural roof to permit the subsequent addition of more floors, they were otherwise substantially different. The first design, drawn principally by Dollard, was to be based upon precast concrete planks while the second design called for a series of nine poured concrete slabs, each connected to adjoining slabs by expansion joints. Above this concrete structural roof, the two built-up roof designs each provided for several layers of material to ventilate, insulate and waterproof the roof.

As built in accordance with the second set of plans and specifications, the layers of roofing, from bottom to top, consisted of a Dyzone ventilating board, covered by lightweight aggregate concrete insulation known as Zonolite, two layers of asbestos felt sheeting alternating with two layers of asphalt, and a topping of gravel. This built-up roof incorporated two addenda which had been issued separately during the final bid period: (1) the Dyzone ventilating board was substituted for urethane insulation between the roof deck and the light-weight aggregate fill; and (2) two layers of asbestos felt replaced three layers of rag felt sheeting in the roofing membrane. The Dyzone ventilating board was a new product in 1967; Zonolite was not.

The Zonolite lightweight aggregate fill used in the construction of the built-up roof was a form of cement poured into place after being mixed with large quantities of water. Darbee specified the product by name in the second design and specifications.

The focus of the plaintiff's claim for relief is upon the defendants' use of Zonolite in the construction of the built-up roof. The plaintiff claimed at trial that the defendants failed to acquaint themselves fully with the characteristics of Zonolite before using it in their design; that their design was defective because it did not permit sufficient ventilation to allow the Zonolite fill to dry properly; and that they failed to inspect the work adequately as it progressed on the project to insure the proper use and drying of the Zonolite. The plaintiff claims that these professional failures of the defendants constituted both negligence and breach of contract. After a lengthy trial, the jury returned its verdict in favor of the defendants. The plaintiff's motion to set the verdict aside was denied, and this appeal followed the judgment rendered on the verdict.

I

The first error claimed by the plaintiff is the court's submission to the jury of three interrogatories drafted by the defendants. The plaintiff asserts that those interrogatories misstated the issues before the jury and omitted vital facts in the characterization of the roofing system in question, thereby confusing and misleading the jury. ³ We agree.

Where two or more counts have been alleged in a complaint, or when two or more causes of action are incorporated in one count, as here, the defendant has the right to save himself from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories. Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359 (1951). In such situations, it is the duty of the trial court, upon request, to submit such interrogatories as would accomplish this purpose. Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105 (1928).

This duty arises from the "general verdict" rule. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979); Sheeler v. Waterbury, supra; Pentino v. Gallo, supra, 107 Conn. 244, 140 A. 105. Under that rule, "[a] general verdict for [a party] imports that the jury resolved all of the disputed issues in favor of [that party]." Eagar v. Barron, 2 Conn.App. 468, 472, 480 A.2d 576 (1984). Hence, if any of the theories alleged in a complaint could properly support a plaintiff's verdict, that verdict will not be overturned, even where there is error relating to another of the theories alleged. See Meyer v. Barnes, 2 Conn.App. 485, 489, 479 A.2d 1236 (1984). Nonetheless, the trial court has broad discretion regarding the number and content of such interrogatories. Freedman v. New York, N.H. & H.R. Co., 81 Conn. 601, 613-14, 71 A. 901 (1909).

Only broad general rules exist to guide the trial court in submitting jury interrogatories: "They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered." Id., 614, 71 A. 901.

The procedural rule for submitting interrogatories to a jury is found in Practice Book § 312, which provides: "The court may submit to the jury interrogatories for the purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. The clerk will take the verdict and then the answers to the several interrogatories, and thereafter he will take the court's acceptance of the verdict returned and the questions as answered, and proceed according to the usual practice. The court will not accept a verdict until the interrogatories which are essential to the verdict have been answered." (Emphasis added.) It is the duty of the court to examine the substance of jury questionnaires to verify their appropriateness to the evidence and issues presented to the jury. If jury questionnaires are improper in form or content, it is incumbent upon the court to rephrase the interrogatories in order that they will guide the jury in reaching a proper verdict. In such event, it is preferable for the court to provide counsel with copies of its interrogatories prior to oral argument. Gaulton v. Reno Paint & Wallpaper, Co., supra, 177 Conn. 130, 412 A.2d 311.

Turning to the interrogatories in the present case, we first note that, although the plaintiff claims all three of them were erroneous, we find that only the last two were improper. The first interrogatory simply requested that the jury find whether or not the roof was defective. Although the defect was not admitted in the defendant's answer, the plaintiff acknowledges that this issue was uncontested at trial, and the jury's response simply confirmed that the basic defect upon which this case was predicated did exist. While such confirmation by the jury was unnecessary, this finding was preliminary to the jury's ultimate verdict, and therefore, it was not error for the court to submit this question.

The remaining two interrogatories, however, were improper for two reasons. First, both interrogatories 2a and 3a failed to present adequately the facts and issues of the case to the jury. Interrogatory 2a did so by failing to include, in its summary of the design of the roof, the structural poured concrete base of the roof upon which the remaining elements of the roof were built and the lack of an attachment or adhesive between the concrete deck and the layers of built-up roofing above it. There was professional evidence that the solid concrete structural roof provided inadequate ventilation for the moisture in the Zonolite fill which was located above it and trapped by the watertight asbestos felts in the roofing membrane. The wet Zonolite was effectively sealed into the roof by the waterproof layers above and below it. The lack of an adhesive between the structural concrete base and the built-up layers above it permitted those upper layers to expand and contract, eventually causing them to crack. Interrogatory 3a similarly failed to state the factual basis for the defendants' undefined, unexplained and unlimited "duty to inspect and...