Gajewski v. Pavelo

• Decision Date: 16 February 1995
• Docket Number: No. 11404,11404
• Citation: 652 A.2d 509,36 Conn.App. 601
• Court: Connecticut Court of Appeals
• Parties: Maria GAJEWSKI et al. v. Arthur PAVELO et al.

Page 509

652 A.2d 509

36 Conn.App. 601

Maria GAJEWSKI et al. v. Arthur PAVELO et al.

No. 11404.

Appellate Court of Connecticut.

Argued Sept. 13, 1994.

Decided Dec. 22, 1994.

Certification Granted Limited to the Following Issue Feb. 16, 1995.

Richard A. Fuchs, with whom, on the brief, was Rosalind J. Koskoff, Bridgeport, for appellants (plaintiffs).

Arthur C. Laske III, Asst. City Atty., with whom, on the brief was Barbara Brazzel-Massaro, Associate City Atty., for appellees (defendant city of Bridgeport et al.).

James E. Coyne, with whom, on the brief, was Colleen D. Fries, Bridgeport, for appellee (defendant Utica Radiator Corp.).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

DUPONT, Chief Judge.

This matter is currently before us on remand from our Supreme Court. Gajewski v. Pavelo, 229 Conn. 829, 643 A.2d 1276 (1994). When we first heard this case, we applied the general verdict rule and affirmed a judgment for the defendants that followed the denial of the plaintiffs' motion to set aside the jury verdict. Gajewski v. Pavelo, 32 Conn.App. 373, 629 A.2d 465 (1993), rev'd, 229 Conn. 829, 643 A.2d 1276 (1994). Our judgment was reversed because we should not have applied the general verdict rule. We, therefore, must now reach the plaintiff's claims of instructional error not addressed in our initial decision.

The facts necessary to the resolution of this appeal were set forth in our earlier decision. "The plaintiffs' amended complaint consisted of ten counts, ¹ essentially involving three causes of action, a product liability claim against Utica Radiator Corporation (Utica) arising out of its manufacture of a gas fired boiler, ² a negligence claim against two employees of the city of Bridgeport, Joseph Savino and Guido Vagnini, for failure to inspect or to make reasonable efforts to inspect the installation of the boiler, and an indemnification claim against the city of Bridgeport pursuant to General Statutes § 7-465. Utica denied that its gas fired boiler filled the Gajewski residence with dangerous and toxic levels of carbon monoxide that allegedly caused serious, painful and permanent injuries to the plaintiffs. Utica also denied that it introduced its boilers into the stream of commerce, that its products were expected to reach consumers without substantial change, and that one of its boilers had reached the plaintiffs' household without substantial change. Utica denied that its boiler was a defective and unreasonably dangerous product and also denied that it had failed to provide proper instructions for installation, had failed to warn the plaintiffs adequately of various dangers arising from use of the boiler and had failed to design a safe product. Further, Utica denied that the plaintiffs' injuries were proximately caused by its allegedly defective gas boiler. Utica's answer also raised two special defenses, one claiming that any injuries sustained by the plaintiffs were caused by their own negligence and carelessness, and the other claiming that the amount of any verdict against Utica should be reduced by any amounts paid or agreed to be paid by any present or prior defendants to the action. Utica filed a cross claim against the Southern Connecticut Gas Company and the city of Bridgeport for indemnification and filed a cross claim against all the codefendants for contribution pursuant to General Statutes § 52-572o. ³ Southern Connecticut Gas Company denied all cross claims by Utica.

"The plaintiffs' negligence claim against the two city employees was based on the failure to inspect, to make provisions to inspect, to warn and to establish standards for inspection. The plaintiffs alleged that, as a result of the city employees' negligence and carelessness, the plaintiffs sustained their injuries. The individual defendants and the city denied all allegations of negligence and denied that any failure to act was the proximate cause of the plaintiffs' injuries. The individual defendants and the city of Bridgeport also raised four special defenses. The defenses claimed were sovereign immunity, contributory negligence, immunity provided by General Statutes § 52-557n, and that any verdict against them should be reduced by any amounts paid by Southern Connecticut Gas Company and Arthur Pavelo, the installer of the boiler. They also filed a counterclaim against Jan Gajewski for indemnification claiming that he was primarily liable for the plaintiffs' injuries because he failed to clean his chimney when advised to do so, replaced a door to the furnace room when advised not to do so and failed to respond to notices calling for inspection of the furnace. ⁴

"The jury heard evidence that in the fall of 1981 the plaintiffs had a gas fired boiler manufactured by Utica installed in their residence by Pavelo. The plaintiffs had previously used an oil fired boiler, which generated a buildup of soot in the chimney flue. At the time of installation, Pavelo, a licensed plumber, cleaned the chimney sufficiently to render the furnace operational. The plaintiffs were advised by Pavelo, prior to the installation of the boiler, of the necessity of having the chimney thoroughly cleaned but were never directly warned of the necessity by Utica. ⁵

"On January 9, 1982, Maria was found unconscious in her home. Her husband, Jan, and adult son, Janusz, were found semiconscious. They were diagnosed as having carbon monoxide poisoning. The poisonous gases resulted from a buildup of soot in the chimney flue. This buildup prevented proper ventilation of the boiler. At no time prior to January 9, 1982, was the installation of the boiler inspected by the employees of the city of Bridgeport or the gas company, although they had attempted to make appointments for inspection with the plaintiffs. Jan and Janusz substantially recovered from the poisoning. Maria suffered permanent total disability of her nervous system manifested as cognitive impairment and difficulty with speech, coordination and gait. She also experiences bouts of depression due to her condition." Gajewski v. Pavelo, supra, 32 Conn.App. at 375-78, 629 A.2d 465.

"The jury returned a handwritten verdict that read: 'We, the jury, based upon the evidence presented to us, unanimously agree that all claims against the defendants: The Utica Radiator Corp., The City of Bridgeport et al., and Southern New England Gas Co. are inconclusive. We, therefore, find them not liable for the injuries sustained in the suit brought by the Gajewski family.' The trial court accepted the verdict and rendered judgment 'in favor of Utica Radiator Corporation, the city of Bridgeport, Joseph Savino, Guido Vagnini, and Southern Connecticut Gas Company, and that the plaintiffs recover no damages of said defendants.' " ⁶ Id., at 378-79, 629 A.2d 465. The plaintiffs moved on December 2, 1991, to set aside the verdict as being contrary to law and against the evidence. The plaintiffs subsequently, on February 25, 1992, supplemented their motion to set aside the verdict. ⁷ The motion to set aside the verdict was denied. The trial court's refusal to set aside the verdict is entitled to great weight in our assessment of the plaintiffs' claims. Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987).

The essence of the three claims raised by the plaintiffs on appeal ⁸ concerns the propriety of the jury instructions as to the defendants Utica, the city of Bridgeport and the city's employees. The claims on appeal are virtually identical to those raised in the plaintiffs' supplementary motion to set aside the verdict. ⁹ The plaintiffs claim that the jury instructions were so contradictory and inconsistent that the jury was left to decide not only the facts of the case but what law to apply. The defendants argue that, viewed as a whole, if there were any inconsistencies in the charge, they were neither harmful nor prejudicial. We agree with the defendants.

To require reversal, any error committed by the trial court in charging the jury must be harmful. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 295, 465 A.2d 294 (1983); see also Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). To be harmful, an error must be so fundamental and material that it may work an injustice. West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 318, 541 A.2d. 858 (1988); Bell v. Bihary, supra, 168 Conn. at 273, 362 A.2d 963, citing Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 316, 268 A.2d 639 (1970). Contradictory instructions that force a jury to decide a material question of law in either one of two inconsistent ways are impermissible. Bell v. Bihary, supra, 168 Conn. at 273, 362 A.2d 963, citing Connors v. Connolly, 86 Conn. 641, 650, 86 A. 600 (1913); W. Maltbie, Connecticut Appellate Procedure §§ 76, 87, 91, 92 (2d Ed.1957). Flatly inconsistent statements in close proximity to one another, without any attempted clarification or correction will likely cause a jury to be misled and will result in reversal. Alaimo v. Royer, 188 Conn. 36, 40, 448 A.2d 207 (1982).

A charge, however, is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. Norrie v. Heil Co., supra, 203 Conn. at 606, 525 A.2d 1332; Tripp v. Anderson, 1 Conn.App. 433, 435-36, 472 A.2d 804 (1984). The charge must be examined to determine whether it fairly presents a case to a jury so that no injustice results and is not to be examined "with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements." (Internal quotation marks omitted.) Tripp v. Anderson, supra, 1 Conn.App. at 436, 472 A.2d 804, citing Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981). Bearing these axioms in mind, we will now consider the plaintiffs' claims.

The plaintiffs argue that the trial court first gave the plaintiffs' requests to...