Giannitti v. City of Stamford

• Citation: 593 A.2d 140,25 Conn.App. 67
• Decision Date: 18 June 1991
• Docket Number: No. 8286,8286
• Court: Appellate Court of Connecticut
• Parties: Angela GIANNITTI v. CITY OF STAMFORD.

Page 140

593 A.2d 140

25 Conn.App. 67

Angela GIANNITTI v. CITY OF STAMFORD.

No. 8286.

Appellate Court of Connecticut.

Argued Dec. 12, 1990.

Decided June 18, 1991.

Kenneth B. Povodator, Asst. Corp. Counsel, with whom, on the brief, was Mary E. Sommer, Corp. Counsel, Stamford, for appellant (defendant).

Stephen A. Finn, Stamford, for appellee (plaintiff).

Before SPALLONE, FOTI and LAVERY, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of the trial court awarding the plaintiff $130,000 in damages plus interest and costs after a bifurcated jury trial on liability and damages. The defendant raises numerous claims which may be summarized as follows: first, that the trial court was incorrect in its evidentiary and discovery rulings, the cumulative effect of which denied the defendant the right to prepare a defense as to liability and damages; second, that the trial court incorrectly refused to allow the jury to view the scene of the accident; third, that the court failed to charge the jury properly as to (1) the significance of the fall area, (2) the issue of whether inadequate lighting could constitute a defect under General Statutes § 13a-149, (3) the plaintiff's duty to mitigate damages for lost earnings and loss of earning capacity, and (4) the defendant's liability for injuries caused in whole or in part by the defendant rather than those injuries caused solely by the defendant; fourth, that the court was incorrect in concluding, as a matter of law, that the plaintiff's notice to the defendant was adequate under General Statutes § 13a-149 and therefore that the court should have allowed testimony offered by the defendant that such notice was inadequate and should not have allowed the plaintiff to assert as evidence of the defendant's negligence its failure to correct the defect after receiving such notice; fifth, that the court was incorrect in awarding interest to the plaintiff based on her offer of judgment. We affirm the judgment of the trial court.

The following facts are pertinent to the resolution of this case. On October 10, 1983, at dusk, the plaintiff, a nurse, was walking on a public sidewalk in the city of Stamford. The plaintiff stepped into a depression in the sidewalk when she moved over to allow some people who were approaching her from the opposite direction to pass. The plaintiff lost her footing and fell, sustaining injuries diagnosed as a fracture in her right foot, a deep venous thrombosis in her right leg and an injured peroneal tendon. The plaintiff attempted to return to full-time work as a nurse several times after her accident, but found herself physically unable to resume full-time responsibilities due to the excessive amount of time that she was required to stand. She was, therefore, forced to accept work as a staff nurse on a per diem, part-time basis.

On or about October 14, 1983, the plaintiff sent a letter to the defendant's city clerk to notify the defendant of her name, address, the fact that she had been injured, and the date and the approximate time and location of the injury. In that letter, the plaintiff also offered to make additional information available on request. Receipt of her letter was acknowledged by a return letter dated October 25, 1983, from the defendant's legal department. On December 22, 1983, the defendant's city clerk received another written notice prepared by the plaintiff's then attorney. Pursuant to the provisions of General Statutes § 13a-149, this second notice stated, with specificity, the injuries sustained by the plaintiff, the cause of those injuries and the time and place of the occurrence.

I

The defendant claims that the cumulative effect of a series of rulings by the trial court on evidentiary and discovery matters rendered the defendant unable to prepare an adequate defense as to liability and damages. Taken individually, each of the rulings of which the defendant complains was within the broad discretion of the court and under our limited review does not constitute an abuse of discretion.

"The action of the trial court is not to be disturbed unless it has abused its broad discretion...." Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). When determining whether the court has abused its discretion, we must make every reasonable presumption in favor of the correctness of the action. Id. The ultimate issue in making such a determination is "whether the court could reasonably conclude as it did." DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). A review of the transcripts makes it clear that the court could reasonably have concluded that the continued tactical maneuvering and the extended period of time during which discovery could have been, but was not, sought served only to delay the trial unreasonably. The court could also reasonably have concluded that for the sake of judicial economy and in the interests of the parties the best course would be to end discovery and to proceed directly to trial. There is no question that the defendant had ample opportunity to mount an adequate defense both in the trial on liability and in the trial on damages.

The defendant has failed to cite and we are unable to find any authority to support the proposition that a number of correct discretionary rulings when taken together would constitute an abuse of discretion. See State v. Suarez, 23 Conn.App. 705, 707 n. 1, 584 A.2d 1194 (1991). If the defendant was prevented from mounting an adequate defense after having more than four years to do so, we do not conclude that it was due to the court's collective correct discretionary responses to a series of eleventh hour discovery requests.

II

The defendant next challenges the court's refusal to allow the jury to view the scene of the fall. The trial court may exercise broad discretion in deciding whether a jury should view the scene of an incident from which a controversy arose. Tarquinio v. Diglio, 175 Conn. 97, 100, 394 A.2d 198 (1978); Meizoso v. Bajoros, 12 Conn.App. 516, 519, 531 A.2d 943 (1987). In exercising its discretion, the court should determine whether viewing the scene is necessary for the jury to form a more intelligent understanding of the issues in the case and the proper applications of evidence for the resolution of those issues. Dickson v. Yale University, 141 Conn. 250, 256, 105 A.2d 463 (1954). Although discretionary, the power to authorize a view of the scene should be invoked only after the court is satisfied that the present conditions at the site are the same as those that existed on the date of the underlying incident, and that such a personal inspection is fair to both parties and "reasonably necessary to do justice." Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982).

A careful review of the transcribed dialogue between the court and defense counsel regarding the defendant's motion to view the premises reveals that, despite arguments to the contrary advanced by defense counsel, the court found that the six intervening years between the date of the incident and the date of trial made it unlikely that the present conditions were the same as those in existence when the plaintiff fell. Further, the court could have reasonably concluded that there were other equally effective, if not more effective, methods available to apprise the jury of conditions existing at the scene at the time of the defendant's fall and that a trip to the site would accomplish nothing in the way of creating a more "intelligent understanding" of the issues confronting the jury. We conclude that the court did not abuse its discretion in making that determination.

III

The defendant's third claim challenges the court's instructions to the jury. The defendant framed these issues in its request to charge on liability dated June 12, 1989, in its request to charge on damages dated June 28, 1989, and in exceptions taken immediately following the charge on damages. Thus, pursuant to Practice Book § 315, ¹ these claims were preserved for our review.

The test of a jury charge is whether it fairly presents the case to the jury for its deliberations on the facts. Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590, 356 A.2d 873 (1975). This must be accomplished in a manner that does not subject either party to injustice under established principles of law. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988). When delivering its charge to the jury, the court is bound by the overarching consideration that its comments be fair to all parties, dispassionate, proportional and avoid misplaced emphasis or omission. Anderson & McPadden, Inc. v. Tunucci, supra, 167 Conn. at 589, 356 A.2d 873. To meet this difficult and important task the trial court is afforded broad discretion. Bruneau v. Quick, 187 Conn. 617, 628-29, 447 A.2d 742 (1982). The court may choose whether to discuss particular items of testimony or specific facts in its charge. Although this discretion is subject to some appellate oversight, we will not disturb the trial court's jury charge unless it is demonstrated that the court's discretion has been abused to the "manifest injury of a litigant." Geer v. First National Supermarkets, Inc., 5 Conn.App. 175, 178-79, 497 A.2d 999 (1985).

On review, we must determine whether the jury charge taken as a whole fairly presents the case to the jury in a way that prevents injustice to either party under the established rules of law. Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

The nature and extent of a trial court's comments to the jury on the evidence must, within constitutional limitations relating to trial by jury, depend on the facts of the case at bar and the way it has been tried. Quednau v. Langrish, 144 Conn. 706, 710, 137 A.2d 544 (1957). The trial judge, not the reviewing court, enjoys the best vantage to sense the...