Clini v. Home Depot USA, Inc., No. 465524 (CT 7/28/2005)

• Decision Date: 28 July 2005
• Docket Number: No. 465524,465524
• Court: Connecticut Supreme Court
• Parties: Edward Clini v. The Home Depot USA, Inc. Opinion No.: 89708

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Unpublished Opinion

Edward Clini v. The Home Depot USA, Inc Opinion No.: 89708

No. 465524

Superior Court of Connecticut

Judicial District of New Haven at New Haven

July 28, 2005

MEMORANDUM OF DECISION

BRUCE L. LEVIN, JUDGE.

Applying the settled standard for determining the sufficiency of the evidence in a case tried to a jury; Salaman v. City of Waterbury, 246 Conn. 298, 304, 717 A.2d 161 (1998); the court agrees with the defendant that no reasonable juror could find that Mike Spiggs told the plaintiff to load the window onto his truck. The plaintiff's attempts to semantically circumnavigate this fact were not successful. Notably, the plaintiff's deposition testimony, in which he admitted that he never spoke with Mr. Spiggs, was admitted not just for impeachment purposes but as substantive evidence. See Code of Ev. §8-3(1); Practice Book §13-31(a)(3).

Thus, had the plaintiff taken it upon himself, as volunteer, to attempt to lift the window alone and injured himself, the defendant would not have owed him a duty of care. But cf. Schmartz v. Harger, 22 Conn.Sup. 308, 171 A.2d 89 (1961) (defendants negligently creating an emergency, liable to volunteer who undertook to protect defendants' property.) Such, however, is not the case. Rather, as volunteer, he undertook to lift the window with "TJ," the defendant's employee. As TJ attempted to lift the window, he lost control of it, causing the weight of the window to shift disproportionately onto the plaintiff, bringing about the injuries he sustained.

"Negligence may be the outgrowth of such a relationship, as that of master and servant, landlord and tenant, physician and patient, and the like; but it also may arise out of the mere hope of the future establishment of such a relationship, as where a storekeeper throws open his place of business for all who may come to see his goods in the hope that they will purchase; and the duty to exercise reasonable care may arise where there is no thought of any such underlying relationship, as in the ordinary case where two automobiles meet upon a highway." Swentusky v. Prudential Ins. Co., 116 Conn. 526, 532-33, 165 A. 686 (1933). "`The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. Botticelli v. Winters, 125 Conn. 537, 542, 7 A.2d 443 [1939]. By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?' Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 [1941]. `Broadly considered, it might be said that the duty to exercise a reasonable care arises whenever the activities of two persons come so in conjunction that the failure to exercise that care by one is liable to cause injury to the other.' Swentusky v. Prudential Ins. Co., 116 Conn. 526, 533, 165 A. 686 [1933]." Borsoi v. Sparico, 141 Conn. 366, 369-70, 106 A.2d 170 (1954).¹ "Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." (Internal quotation marks omitted.) Dean v. Hershowitz, 119 Conn. 398, 408, 177 A. 262 (1935). This is the rule of law that imposed a duty on TJ to use ordinary care and vicarious liability on the defendant.

Paragraph 5(a) of the plaintiff's amended complaint alleges that "[t]he injuries to the plaintiff were caused by the negligence of the defendant, acting through its agents, servants and employees, in one or more of tine following ways in that it: (a) Failed to properly assist the plaintiff in lifting the windows . . ." There is sufficient evidence from which the jury could find that TJ failed to properly assist the plaintiff in lifting the windows. Thus, there was a duty upon him which the jury could find he breached. The defendant is vicariously liable for the injuries proximately caused by that breach.²

The defendant also claims that the court charged that whether the defendant owed a duty to the plaintiff was a question of fact for the jury. "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). Once a duty is found to exist, whether the defendant breached that duty is a question of fact for the jury. Id.

The relevant portion of the charge, provided in advance to counsel together with annotations, was as follows:

In a general sense, a civil trial such as this has two parts: liability—meaning whether the defendant was negligent and whether that negligence caused the plaintiff's injuries—and, on the other hand, damages. You will reach the issue of damages only if you find the liability issue—that is negligence and causation—in favor of the plaintiff. If you find that liability is established, you will have occasion to apply my instructions concerning damages. If you find that liability has not been established, then you will not consider damages. The fact that I will be instructing you on both liability and damages should not be taken by you as any indication as to how the court would decide liability. Rather, my charge includes both liability and damages because I must give you instructions on all the issues.³

I will now address the specific legal elements, the laws which you must apply to the facts. The plaintiff claims that the defendant was negligent. In general, in order to get a verdict in his favor, the plaintiff must prove (1) that the defendant was negligent, (2) that if the plaintiff sustained injuries, the defendant's negligence was a proximate cause of his injuries, meaning that his negligence was a substantial factor in causing his injuries. And (3), that if the plaintiff was also negligent, his negligence did not causally contribute to his injuries by more than 50%.⁴

By way of background, we've had evidence that the plaintiff was an employee of a trucking company that had a contract with the defendant, Home Depot, to deliver Home Depot merchandise to its customers. While he and a Home Depot employee were attempting to load a set of windows onto his truck, the plaintiff claims to have injured his back.

Negligence is the violation of a legal duty which one person owes to another to care for the safety of that person.⁵ It is the failure to exercise reasonable care under the circumstances. It is the doing of something which a reasonably prudent person would not have done under like circumstances or conditions, or it may be an omission to do that which a reasonably prudent person would have done under similar circumstances. Reasonable care is the care that a reasonably prudent person would use in the same circumstances.⁶ In determining the care that a reasonably prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the defendant at the time of the conduct in question. Whether care is reasonable depends on the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised.⁷

To find that the defendant failed to use reasonable care is not in all cases a sufficient basis for recovery by the plaintiff because before the plaintiff can avail himself of that failure the defendant must owe the plaintiff a duty to use that care. Speaking broadly, such a duty comes into existence whenever the activities of two persons come into such conjunction that injury is likely to result unless reasonable care is taken. A test for whether the defendant owed a duty of care to the plaintiff is, should the defendant, knowing what he knew or in the reasonable exercise of his faculties, have anticipated that, unless he used reasonable care, harm was likely to result, not necessarily the precise harm which the plaintiff in fact suffered, but harm of the same general nature.⁸

The plaintiff claims that the defendant was negligent in certain respects. Proof that the defendant was negligent in just one of the ways claimed is sufficient to prove negligence.⁹ The plaintiff alleges in his complaint that the defendant was negligent in that it (a) failed to properly assist the plaintiff in lifting the windows; (b) failed to put the windows on a pallet so that it could be mechanically placed on the plaintiff's truck; (c) failed to provide enough employees to assist the plaintiff in lifting the windows; (d) failed to assign competent employees to assist the plaintiff in lifting the windows; and (e) failed to load the windows onto the plaintiff's truck. To prove negligence, it is not necessary for the plaintiff to prove that the defendant was negligent in all of the ways claimed.

As have said, if an employee of the defendant was negligent, then the defendant is deemed negligent.¹⁰

The court did not state nor otherwise suggest that duty, rather than breach of duty, was a question of fact for the jury.¹¹

Finally, the court observes that there was no evidentiary foundation for the adverse inference instruction that the defendant requested. Such an...