Johnson v. Pagano

Decision Date14 July 1981
Citation440 A.2d 244,184 Conn. 594
CourtConnecticut Supreme Court
PartiesSilas T. JOHNSON v. Catello PAGANO

Herbert Watstein, Bristol, with whom, on the brief, was Julius Watstein, Bristol, for appellant (plaintiff).

Jon S. Berk, Hartford, with whom, on the brief, was Thomas P. Barrett, Bridgeport, for appellee (defendant).



This is an appeal from an action brought by the plaintiff seeking to recover damages for personal injuries. The jury returned a verdict for the defendant. From that judgment, the plaintiff has appealed.

The jury had the following evidence before it. On July 4, 1971, the plaintiff and his wife were guests of Bud and Theresa Lawrence. Mr. Lawrence arranged for the defendant to take them and their guests by boat from Westbrook to Clinton Beach for some bathing. It was a hot, sunny and calm day at the shoreline. Westbrook and Clinton are adjacent towns on the Connecticut shore. Long Island Sound is a navigable body of water.

Along the way, and when about 300 feet from the shore, the boat suddenly stopped, striking a sandbar. The defendant asked Mr. Lawrence to assist him in getting the outboard motor out of the sand. They entered the water, lifted the engine out of the sand, and pulled the boat closer to shore. The water at this point was about twelve inches deep. The plaintiff's wife entered the water and said to Mr. Lawrence, "there's no water here.... It's only up to my ankles. I can't go swimming."

Meanwhile, the plaintiff, who was sitting in the bow of the boat next to Mr. Lawrence, stood up and said he was going to dive into the water. Both Mrs. Lawrence and the plaintiff's wife, who was standing in the water, tried to stop him. Nevertheless, the plaintiff dove in and in so doing injured his cervical spine.

At oral argument the plaintiff withdrew the second count sounding in nuisance. We thus concern ourselves with the first count only, dealing with a cause of action in negligence. The allegations of negligence raised the issue concerning the duty of the defendant to warn the plaintiff not to dive into shallow water.

In answer to the complaint, the defendant denied being negligent and, by way of special defense, alleged that the plaintiff was negligent and assumed the risk of diving into shallow water when he dove from the defendant's boat.

The plaintiff takes issue with the adequacy of the court's charge as to negligence, contributory negligence 1 and assumption of risk. The jury returned a general verdict for the defendant. No interrogatories were requested. There is therefore a presumption that the jury found every issue in favor of the defendant. Burcaw v. Sykora, 173 Conn. 229, 230, 377 A.2d 298 (1977). One of the defenses raised by the defendant's answer was a denial of any negligence. Thus, if any of the court's instructions are shown to be proper and adequate as to any one of the defenses raised, the general verdict will stand irrespective of any error in the charge as to the others. Kelly v. Bliss, 160 Conn. 128, 132, 273 A.2d 873 (1970); Meglio v. Comeau, 137 Conn. 551, 553, 79 A.2d 187 (1951).

The plaintiff maintains that the charge on reasonable care did not provide the jury with sufficient guidance. Practice Book § 3060F(c)(2) provides, in part: "When error is claimed in the charge to the jury, the brief shall include a verbatim statement of all relevant portions of the charge." A comparison of the charge as reprinted in the plaintiff's brief and the charge as actually given by the court shows that the plaintiff omitted relevant portions of the charge. 2 We cannot condone this practice. Nevertheless, we have examined the court's charge as to reasonable care and find that it was adequate and sufficient for the guidance of the jury. See Messina v. Iannucci, 174 Conn. 275, 278, 386 A.2d 241 (1978). Since, under the general verdict doctrine, the jury could...

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9 cases
  • Batick v. Seymour
    • United States
    • Connecticut Supreme Court
    • April 6, 1982
    ...for the defendant. Colucci v. Pinette, --- Conn. ---, ---, 441 A.2d 574 (43 Conn.L.J., No. 20, pp. 5, 6) (1981); Johnson v. Pagano, --- Conn. ---, ---, 440 A.2d 244 (43 Conn.L.J., No. 2, pp. 6, 7) (1981). In his special defense 4 to this action of nuisance the defendant pleaded that the pla......
  • Colucci v. Pinette
    • United States
    • Connecticut Supreme Court
    • November 17, 1981
    ...negligence, and since the jury returned a general verdict, we should conclude, under the general verdict doctrine; see Johnson v. Pagano, --- Conn. ---, ---, 440 A.2d 244 (43 Conn.L.J., No. 2, pp. 6, 7) (1981); see also Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951); that the j......
  • Stone v. Bastarache
    • United States
    • Connecticut Supreme Court
    • August 24, 1982
    ...Power Co., 187 Conn. 339, 342, 445 A.2d 924 (1982); Colucci v. Pinette, 185 Conn. --- (43 CLJ 20, pp. 5, 6) 441 A.2d 574 (1981); Johnson v. Pagano, 184 Conn. --- (43 CLJ 2, pp. 6, 7) 440 A.2d 244 (1981); Kosko v. Kohler, 176 Conn. 383, 385-86, 407 A.2d 1009 (1978); Burcaw v. Sykora, 173 Con......
  • Yeske v. Avon Old Farms School, Inc., 2270
    • United States
    • Connecticut Court of Appeals
    • January 24, 1984
    ...who received the verdict. Colucci v. Pinette, 185 Conn. 483, ---, (43 CLJ 20, pp. 5, 6) 441 A.2d 574 (1981); Johnson v. Pagano, 184 Conn. 594, 595-96, 440 A.2d 244 (1981); Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980). Furthermore, the parties and the trial court......
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