Green v. HNS MANAGEMENT CO., INC.

• Decision Date: 04 October 2005
• Docket Number: No. 25666.,25666.
• Citation: 881 A.2d 1072,91 Conn.App. 751
• Parties: Lakeshia GREEN v. H.N.S. MANAGEMENT COMPANY, INC.
• Court: Connecticut Court of Appeals

881 A.2d 1072

91 Conn.App. 751

Lakeshia GREEN v. H.N.S. MANAGEMENT COMPANY, INC.

No. 25666.

Appellate Court of Connecticut.

Argued May 26, 2005.

Decided October 4, 2005.

John A. Blazi, Waterbury, for the appellant (defendant).

Frederick P. Leaf, with whom, on the brief, was Susan Shaw, New Haven, for the appellee (plaintiff).

SCHALLER, FLYNN and GRUENDEL, Js.

SCHALLER, J.

The defendant, H.N.S. Management Company, Inc., doing business as Connecticut Transit, appeals from the judgment of the trial court rendered after the jury's verdict in favor of the plaintiff, Lakeshia Green, in this personal injury action. On appeal, the defendant claims that the court improperly submitted certain issues to the jury that were unsupported by the evidence.¹ We agree and, accordingly, reverse the judgment and remand the case for a new trial.

The jury reasonably could have found the following facts. On the morning of March 17, 2000, rain and sleet were falling and slush had accumulated on the ground. As part of her morning commute, the plaintiff boarded a bus operated by the defendant and proceeded to the back of the bus to find a seat. There were other passengers already on the bus. While the plaintiff was walking in the aisle, she slipped on ice and slush on the floor of the bus just as the driver started to move the bus away from the curb. The plaintiff fell to the floor, injuring her left knee.

The plaintiff brought a one count complaint against the defendant in which she alleged that as a result of the defendant's negligence, she sustained personal injuries and damages. In her complaint, the plaintiff alleged that as she was "walking down the aisle of [the] bus in an effort to take a seat, the operator of [the] bus suddenly, without warning, and without smoothly and gradually accelerating, pulled away from the bus stop causing the plaintiff to lose her balance on the water, snow and ice on [the] aisle" and fall to the floor. The complaint included allegations of several specifications of negligence.² The defendant denied having been negligent and raised comparative negligence as a special defense.

After trial, in its instructions to the jury, the court summarized the allegations made by the plaintiff in her complaint, including the specifications of negligence. Neither party requested interrogatories. The plaintiff's verdict form included sections for total damages, comparative percentage of responsibility for each party and total recoverable damages. It did not, however, contain interrogatories regarding any of the specifications of negligence that the plaintiff alleged in the complaint. The jury returned a plaintiff's verdict awarding damages of $15,000 with a 45 percent reduction for her comparative negligence. The defendant filed a motion to set aside the verdict, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

Before addressing the merits of the defendant's claims, we must first determine whether our review of those claims is barred by the general verdict rule. "The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict." Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 558, 616 A.2d 819 (1992). "Under the general verdict rule, if a jury [returns] a general verdict for one party, and [the party raising a claim of error on appeal did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall." (Internal quotation marks omitted.) DeGennaro v. Tandon, 89 Conn.App. 183, 198, 873 A.2d 191, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005). "A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts." (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

Our Supreme Court has held that "the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded." (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 472, 857 A.2d 888 (2004).

In this case, although the plaintiff's one count complaint alleged numerous factual theories, it asserted only one legal theory of recovery—negligence. The plaintiff argues that the general verdict rule applies because the various specifications of negligence are actually different theories of recovery. The plaintiff further argues that in the absence of interrogatories, it is improper to speculate as to which of the complaint's eleven specifications of negligence the jury used as a basis for its verdict and that it was incumbent on the defendant to request interrogatories on each of the specifications of negligence in the complaint. We disagree.

In addition to limiting application of the rule to the five situations previously set forth, our Supreme Court in Curry provided further guidance on when the rule is inapplicable. See Curry v. Burns, supra, 225 Conn. at 794-95, 626 A.2d 719. In so doing, the court discussed Ziman v. Whitley, 110 Conn. 108, 147 A. 370 (1929), which overruled prior cases that had applied the rule to "different specifications of fact alleged in support of one essential right. . . ." Id., at 116, 147 A. 370. In outlining the proper parameters of the general verdict rule, Curry stated that the rule does not apply if a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence. Curry v. Burns, supra, at 787, 626 A.2d 719. "The rationale [as expressed in Ziman] for declining to apply the rule in such a situation is that the various grounds of negligence alleged are often so interlocked as to make it difficult to consider them separately, and formulating interrogatories to obtain separate findings on the various claims would complicate the work of court, jury and counsel." (Internal quotation marks omitted.) Id. As explained in Ziman, "[w]here. . . different specifications of fact are alleged in support of one essential right, as where various grounds of negligence are alleged as a basis for a recovery for injuries resulting from a particular accident, it is the sounder policy to permit an appellant to take advantage upon appeal of errors affecting one specification of negligence only, even though no interrogatories have been submitted." Ziman v. Whitley, supra, at 116, 147 A. 370.

As discussed, in her complaint, the plaintiff asserted only one theory of recovery—negligence —and alleged several specifications of negligent conduct in support of that single cause of action.³ Through those specifications of negligence, the plaintiff sought to establish that the bus driver's allegedly negligent operation of the bus, in conjunction with the defendant's alleged negligence with regard to the condition of the aisle, caused her to slip and fall. The interlocking nature of the specifications of negligence and the plaintiff's general allegation regarding the factors that caused her fall would make it difficult to consider each separately. For the reasons discussed in Ziman and outlined in Curry, we conclude that the general verdict rule is inapplicable in this case.⁴ We are not precluded, therefore, from reversing the judgment in favor of the plaintiff if we conclude that any ground on which the jury could have based its verdict was improper.

II

The defendant claims that the court improperly submitted to the jury certain issues that were unsupported by the evidence. Specifically, the defendant argues that the court improperly instructed the jury on the plaintiff's specification of negligence relating to the alleged failure of the defendant to warn the plaintiff about the allegedly dangerous condition of the aisle of the bus. The defendant contends that there was no evidence to establish that the slippery condition created by snow and ice on the aisle of the bus had existed for a sufficient period of time to give rise to a duty to warn.⁵

As a preliminary matter, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant's claim. "A challenge to the validity of jury instructions presents a question of law. Our review of this claim, therefore, is plenary. . . . We must decide whether the instructions, read as a whole, properly adapt the law to the case in question and provide the jury with sufficient guidance in reaching a correct verdict." (Citations omitted.) Otero v. Housing Authority, 86 Conn.App. 103, 106-107, 860 A.2d 285 (2004). "[T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 289-90, 838 A.2d 135 (2004).

"[T]he trial court has a duty not to submit any issue to the jury upon which the evidence would not support a finding. . . . Accordingly, the right to a jury instruction is limited to those theories for which there is any...