Futterleib v. Mr. Happy's, Inc.

• Decision Date: 04 October 1988
• Docket Number: No. 5782,5782
• Citation: Futterleib v. Mr. Happy's, Inc., 548 A.2d 728, 16 Conn.App. 497 (Conn. App. 1988)
• Court: Connecticut Court of Appeals
• Parties: George FUTTERLEIB et al. v. MR. HAPPY'S, INC., et al.

Page 728

548 A.2d 728

16 Conn.App. 497

George FUTTERLEIB et al. v. MR. HAPPY'S, INC., et al.

No. 5782.

Appellate Court of Connecticut.

Argued May 10, 1988.

Decided Oct. 4, 1988.

Kenneth B. Katz, Hartford, for the appellant (defendant Trepid Fox, Inc.).

Ronald E. Cassidento, West Hartford, with whom, on the brief, were Eric Carlson, Hartford, and Jeffrey A. Gutin, law student intern, for the appellees (plaintiffs).

Before BORDEN, DALY and NORCOTT, JJ.

DALY, Judge.

The plaintiffs, George and Marcia Futterleib, instituted these consolidated actions against the defendants, Douglas Medina, Mr. Happy's, Inc., and Trepid Fox, Inc., for their gross negligence and wanton and reckless conduct in dispensing alcoholic beverages to an intoxicated person and for their violation of General Statutes § 30-102. ¹ From the judgment rendered upon a jury verdict in favor of the plaintiffs against the defendant Trepid Fox, Inc., this appeal ensued. ²

The defendant claims that the trial court erred in the following manner: (1) in failing to charge on a party's duty to mitigate damages; (2) in precluding the defendant from making an offer of proof relating to mitigation of damages; (3) in disallowing into evidence a pleading in a companion matter; (4) in failing to instruct the jury adequately on proximate cause; (5) in denying the defendant's motion in limine regarding an intoximeter test; (6) in denying the defendant's motion for a directed verdict; (7) in denying the defendant's motion to set aside the verdict; and (8) in improperly charging the jury concerning the $20,000 damage limitation prescribed under General Statutes § 30-102.

The plaintiffs, in their preliminary statement of issues, claim that the trial court erred in granting the defendant's motion to strike the plaintiff's count brought under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a. Since the plaintiffs have failed to comply with Practice Book § 4005 relating to the filing of a cross appeal in this matter, we need not consider this claim.

The jury could reasonably have found the following facts. On December 5, 1983, Douglas Medina and James Mosakowski left their place of employment in Waterbury and proceeded in separate vehicles to Mr. Happy's, a Waterbury bar that features exotic dancers. There the two drank both beer and several shots of liquor. After approximately two hours at Mr. Happy's, Mosakowski and Medina proceeded to the Trepid Fox, a bar approximately two miles away. At the Trepid Fox, Medina drank beer and several shots of tequila. He and Mosakowski were treated to a round of shots by a bartender at the Trepid Fox and by one of the dancers. Mosakowski observed Medina swaying back and forth while standing at the bar and noticed that Medina was having some difficulty standing. In addition, Mosakowski observed that Medina was staggering. At no time did any employee of the Trepid Fox refuse to serve Medina or ask him to leave, despite his being observed "biting the bar," which the jury could have interpreted as his head dropping and contacting the top of the bar.

Medina could not recall at what time he left the Trepid Fox but subsequently thought that he had stopped drinking about 5:30 p.m. Shortly after 6 p.m., his truck emerged from a McDonald's restaurant driveway without stopping and proceeded to halt and block the traveled lane. William Huber, whose vehicle came within six inches of Medina's truck, observed that Medina looked "real drunk," stating that Medina's elbow was on the window, his head was resting on his shoulder and his face was red.

At about 6:23 p.m., the plaintiffs were proceeding northerly on Wolcott Road in Wolcott approximately two to three miles from the Trepid Fox. Medina's truck, which was proceeding in a southerly direction, swerved into the oncoming lane and collided with the plaintiffs' vehicle. Upon arrival at the scene, Wolcott police officer John Gagain observed Medina swaying and staggering. Gagain also noticed that Medina's speech was slurred and detected a strong odor of alcohol on his breath. Medina admitted to having a few beers and subsequently failed the sobriety tests administered at the scene. An examination of the cab of his truck revealed an eight pack of beer bottles, four empties and four unopened ones. Additionally, twenty empty beer containers were also found in the cab. An intoximeter test, administered at the Wolcott police department one hour and twenty-five minutes later, indicated that Medina was highly intoxicated with a .225 percent blood alcohol content.

As a result of the collision, the plaintiffs sustained serious injuries. The named plaintiff suffered, inter alia, a fracture of the left hip. Kevin Dowling, an orthopedist, recommended a total hip replacement procedure, which entailed joint replacement and bone grafting. The patient, however refused this procedure. Dowling indicated that the hip replacement surgery as recommended would not only have enabled the named plaintiff to walk without crutches, but would have reduced the pain and disability as well. Timothy Wallace, a pain specialist and psychologist, opined that the pain might not have been eliminated by the surgery.

The jury returned a verdict in favor of the named plaintiff in the amount of $20,000 in the dram shop action and $500,000 on the common law complaint. Additional verdicts were entered in favor of Marcia Futterleib for $10,000 in her dram shop action and $60,000 on her common law complaint.

I

In the defendant's first claim of error, it argues that the trial court erred in failing to charge on a party's duty to mitigate damages. Specifically, the defendant asserts that it was error for the court to refuse to instruct the jury on the duty to mitigate when there was evidence, produced at trial, to support the defendant's request. The defendant argues that the named plaintiff's decision not to pursue the recommended joint replacement and bone grafting advised by his doctor was sufficient evidence of a failure to use reasonable care to mitigate his damages. We agree.

"It has long been a ' "rule of general application that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries." ' Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 [1946]. When there are facts in evidence that indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages." Jancura v. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978); see also Geer v. First National Supermarkets, Inc., 5 Conn.App. 175, 178, 497 A.2d 999 (1985).

In the present case, there was evidence from Dowling, the named plaintiff's doctor, that the joint replacement and bone grafting would enable the named plaintiff to walk without crutches, that the pain would be reduced, and that there would be a reduction in his disability. Moreover, Dowling testified that the decision whether or not to elect the recommended surgery was with the named plaintiff and that there was nothing gained by delaying surgery. In view of Dowling's testimony that supported the defendant's request to charge, the trial court committed error in not charging on the named plaintiff's duty to mitigate.

II

The defendant next claims that the trial court erred in precluding the defendant from making an offer of proof on the plaintiffs' failure to use seatbelts. In making this claim, however, the defendant merely assumes, without legal argument on the matter, that such evidence would have been relevant to the issue of mitigation. The underlying issue of how the use of seatbelts would have mitigated damages, which is necessary to the resolution of the issue, is not briefed. In the absence of any legal argument on this issue, we will not address the merits of the defendant's claim. See Hawkins v. Hawkins, 11 Conn.App. 195, 198 n. 1, 526 A.2d 872 (1987); Griffin v. Muzio, 10 Conn.App. 90, 94, 521 A.2d 607 (1987).

In reaching this decision, we first note that the accident in this case occurred in 1983, two years prior to the legislature's adoption of General Statutes § 14-100a(c)(4) which provides: "Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action." Accordingly, the provisions of § 14-100a(c)(4) are not applicable to this case. Next, we note that, in the absence of a statute dealing with the issue, it is far from clear that evidence of the failure to use seatbelts can be introduced to show either the failure to mitigate damages or contributory negligence. Neither our Supreme Court nor this court have addressed this issue. See Wassell v. Hamblin, 196 Conn. 463, 467-68 n. 3, 493 A.2d 870 (1985). The trial bench is quite divided on the issue. Trial court decisions rejecting the seatbelt defense as it relates to mitigation of damages include Delumba v. Magda, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV840073370S (October 31, 1985); and Jemison v. Lowe, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 284839 (June 6, 1985). Trial court decisions holding that the seatbelt defense is allowable for mitigation of damages include Fiore v. Wilson, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 241653 (May 27, 1980); Ceforetti v. Elkins, Superior Court, judicial district of Waterbury, Docket No. 048496 (November 29, 1979). Because this issue is so unclear, we will not consider the defendant's claim in the absence of proper legal argument on the viability of the seatbelt defense as applied to claims arising before the effective date of General Statutes § 14-100a(c)(4).

III

In the third claim of error, the defendant argues that ...