Cruz v. Drezek

• Decision Date: 30 May 1978
• Court: Connecticut Supreme Court
• Parties: Hector CRUZ et al. v. Edward DREZEK et al.

Page 1335

397 A.2d 1335

175 Conn. 230

Hector CRUZ et al. v. Edward DREZEK et al.

Supreme Court of Connecticut.

Argued March 8, 1978.

Decided May 30, 1978.

Joseph T. Sweeney, Hartford, for appellants-appellees (defendants).

Harold J. Geragosian, New Britain, for appellees-appellants (plaintiffs).

Before COTTER, LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

HEALEY, Associate Justice.

This is a negligence action brought in two counts. In the first count the minor plaintiff, Hector Cruz, brought the action by his mother and next friend, Lucia Cruz, seeking damages for personal injuries allegedly received as the result of a fall on July 12, 1970, from a third-floor front porch on premises at 25 City Avenue in New Britain owned by the defendants Edward Drezek and Jeanette Drezek. In the second count Lucia Cruz sought damages for medical and hospital expenses allegedly arising out of this accident. The defendants filed special defenses alleging contributory negligence and assumption of risk on the part of Hector. At the close of the evidence, the court denied the defendants' motion for a directed verdict. No interrogatories were submitted to the jury and the jury returned a general verdict. The case was tried to a jury which first returned a plaintiffs' verdict on both counts, awarding $35,000 to Hector on the first count and $1952.40 to Lucia on the second count. The court did not accept that verdict, but returned the jury to reconsider the verdict as to Hector. Thereafter, the jury returned a plaintiffs' verdict on both counts, awarding $20,000 to Hector on the first count and $1952.40 to Lucia on the second count, which the court accepted. The court denied the defendants' motions to set aside the verdict and for judgment notwithstanding the verdict.

The defendants have appealed, claiming that the court erred in denying their motion for a directed verdict, in refusing to set aside the verdict, and in refusing to render judgment notwithstanding the verdict on the basis of their motion.

The plaintiffs have taken a cross appeal in which they claim that the court erred in refusing to accept the jury's first verdict for Hector and in its further instructions and charge to the jury dealing "with the claimed excessiveness of the original verdict for the plaintiff Hector Cruz."

A motion for a directed verdict is a prerequisite to a motion for judgment notwithstanding the verdict. Practice Book § 255; State v. Amara, 152 Conn. 296, 298, 206 A.2d 438; Masterson v. Atherton, 149 Conn. 302, 314, 179 A.2d 592. If the court correctly refused to set aside the verdict, it then necessarily follows that it also properly denied the defendants' motion for judgment notwithstanding the verdict. Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 77, 245 A.2d 129; Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141. "In reviewing the decision of the trial court on the motion to set aside the verdict and for judgment notwithstanding the verdict, we must consider the evidence in the light most favorable to the plaintiff. Kopjanski v. Festa, 160 Conn. 61, 63, 273 A.2d 692; Lewis v. Kasimer, 153 Conn. 13, 15, 211 A.2d 837; see 53 Am.Jur., Trial, § 349." Bartholomew v. Catania, 161 Conn. 130, 132, 285 A.2d 350, 351. "This court does not favor the direction of verdicts; Mott v. Hillman, 133 Conn. 552, 555 52 A.2d 861; and has pointed out that motions to direct should only be granted in exceptional cases; McWilliams v. American Fidelity Co., 140 Conn. 572, 578, 102 A.2d 345; and where the circumstances are such that, if the jury had rendered a verdict upon the evidence, the court might properly have set it aside. Mott v. Hillman, supra." Gosselin v. Perry, 166 Conn. 152, 167, 348 A.2d 623, 631.

Among the facts which the jury could reasonably have found from the evidence are the following: Hector was fourteen years old at the time of this accident of July 12, 1970. His family consisted of his mother Lucia, two sisters, and himself. About three or four days prior to July 12, 1970, the family met with Edward Drezek and discussed moving on the coming weekend into the third-floor apartment of the three-family house at 25 City Avenue in New Britain owned by Edward Drezek and Jeanette Drezek. The Cruz family had already paid one month's rent in advance. Edward Drezek, who lived in Bristol, told them to pick up the key from the first-floor tenant. Hector's family picked up the key on Saturday, July 11, and started moving some boxes in that day.

On Sunday, July 12, 1970, Hector was helping his family move into the third-floor apartment which they had rented. Located at the front of the plaintiffs' apartment was an exterior porch facing on City Avenue. This exterior porch was not an enclosed porch and it was exposed to the elements. It was enclosed by railings on two sides and the other two sides were enclosed by the building itself. The control of this porch area was in the defendants. Friends were also helping the Cruz family move in their belongings, and one of them called Hector out onto the porch to help them pull up a mattress from ground level. Hector went out onto the porch where there were three men, and there were two rope ends, with each rope end being held by two persons. Hector was one of the front persons on one of the two rope ends and he and the other front person were standing closer to the porch's front railing than the other two men who were standing back, also holding the rope ends. Hector was standing about six to twelve inches from the front railing just prior to the accident and was holding onto the rope waiting for a man below to tell him to pull on it to haul up the mattress. The last thing which Hector can remember before his recollection of waking up in the hospital is that he was standing between six inches and twelve inches away from this front railing, holding onto the rope with his hands. Josephine Ehritz, the sole eyewitness to this accident and a neighbor, saw a "small mattress" being raised by a rope and, at this point, she said the railing gave way and "all fell down." According to Mrs. Ehritz, the mattress never got stuck under anything as it was coming up. Hector fell to the ground below. The entire front porch railing also fell, in one piece, to the ground. This front porch rail which gave way and fell measured about nine or ten feet in length and about forty inches in height. The top and bottom parts of this railing were two-by-four pieces of wood and the railing was held in place by nails at each end of the top and bottom parts of the railing. New Britain Police Detective Robert Walsh arrived at the accident scene by car within two or three minutes. Certain photographs of the house, porch and fallen railing, taken at the scene by a police photographer, were in evidence.

The defendants argue that the trial court erred in failing either to direct the verdict or to render judgment for the defendants notwithstanding the verdict because there was not any evidence of any unsafe or defective condition nor of any actual or constructive notice of any such condition pertaining to the alleged porch railing. Essentially, they argue that the evidence was not sufficient to support a finding of negligence by the jury against them.

The defendants were under the duty to use reasonable care to keep those portions of the premises, and specifically the third-floor porch, together with its railings, over which they had control, in a reasonably safe condition. Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 82 245 A.2d 129; Klahr v. Kostopoulos, 138 Conn. 653, 654, 88 A.2d 332. It was for the jury to determine whether there was in fact such a defective condition. There could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it because, had they exercised a reasonable inspection of their premises, they would have discovered it; Kirby v. Zlotnick, 160 Conn. 341, 344, 278 A.2d 822; White v. E & F Construction Co., 151 Conn. 110, 112, 193 A.2d 716; and it was the defendants' duty to make a reasonable inspection of premises in their control to discover possible defects therein. Klahr v. Kostopoulos, supra, 138 Conn. 655, 88 A.2d 332. "We have repeatedly stated that the notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. White v. E & F Construction Co., . . . (151 Conn. 110, 114, 193 A.2d 716); New Britain Trust Co. v. New York, N. H. & H. R. Co., 145 Conn. 390, 393, 143 A.2d 438; Drible v. Village Improvement Co., 123 Conn. 20, 23, 192 A. 308." Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824, 826. On the question of notice, the trier's consideration must be confined to the defendants' knowledge of the specific condition causing the injury, and such knowledge cannot be found to exist from a knowledge of the general or overall conditions obtaining on the premises. Kirby v. Zlotnick, supra, 160 Conn. 344-45, 278 A.2d 822; Monahan v. Montgomery, supra. Circumstantial evidence is, of course, also available on the question of notice or knowledge of the specific defects, keeping in mind that in an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier's mind a reasonable belief that it is more probable than otherwise that the fact or issue is true. Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473. In many cases, including this case, circumstantial evidence is the only evidence available to a party to prove a fact material or essential to his cause of action. Hennessey v. Hennessey, supra, 215, 140 A.2d 473.

Turning to the question of the specific defective condition, the evidence, while contradictory, considered most...