Keating v. Glass Container Corp.

• Decision Date: 10 September 1985
• Citation: 497 A.2d 763,197 Conn. 428
• Court: Connecticut Supreme Court
• Parties: Esther KEATING v. GLASS CONTAINER CORPORATION et al.

Page 763

497 A.2d 763

197 Conn. 428

Esther KEATING v. GLASS CONTAINER CORPORATION et al.

Supreme Court of Connecticut.

Argued May 8, 1985.

Decided Sept. 10, 1985.

Thomas W. Mochnick, Hartford, for appellant (defendant Pepsi-Cola Bottling Co. of New Haven, Inc.).

Ernest J. Mattei, Hartford, with whom, on brief, was Kim M. Cooke, Hartford, for appellee (defendant Owens-Illinois, Inc.).

Before PETERS, C.J., and SHEA, SANTANIELLO, CALLAHAN and BRENNAN, JJ.

CALLAHAN, Justice.

This action was commenced by the plaintiff, Esther Keating, on March 3, 1977, for injuries received when a cap from a Pepsi-Cola bottle she had purchased blew off and struck her in the eye, causing multiple injuries. The plaintiff's substitute complaint alleged strict liability against four defendants: Pepsi-Cola Bottling Company of New Haven, Inc. (hereinafter Pepsi), the bottler of the soda; Rosemary and Guido Parisi, doing business as the East Rock Package Store (hereinafter East Rock), retailers of the soda; Glass Container Corporation (hereinafter Glass Container), the bottle manufacturer; and Owens-Illinois, Inc., the bottle cap manufacturer. On October 25, 1979, Pepsi filed a cross complaint for indemnification against Owens-Illinois and Glass Container, alleging negligence and breaches of warranty. East Rock also filed a cross complaint for indemnification against the other three defendants alleging similar claims.

The case was tried to the jury only on the plaintiff's substitute complaint in strict liability. On December 17, 1982, the jury returned a plaintiff's verdict against the defendants Pepsi and East Rock in the amount of $95,000, and found for the defendants Owens-Illinois and Glass Container. ¹ On December 24, 1982, the trial court heard the parties on the cross complaints. On February 3, 1983, the court rendered judgment in favor of Owens-Illinois and East Rock on the cross complaints and ordered that Pepsi indemnify East Rock for any liability incurred as a result of the judgment recovered by Esther Keating against East Rock. ²

Pepsi appeals, claiming that the trial court erred in holding that Pepsi did not have a right to a jury trial on its cross complaint against the defendant Owens-Illinois. ³ Because we find that Pepsi failed to make a timely objection concerning the trial court proceedings and has not provided an adequate record for purposes of this appeal, we do not reach the merits of Pepsi's claim that it had a right to a jury trial on its cross complaint. We find no error.

We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim. See Practice Book § 3063; Rybinski v. State Employees' Retirement Commission, 173 Conn. 462, 466, 378 A.2d 547 (1977). The reason for requiring timely objections in judicial proceedings is to enable the judge and opposing counsel to correct possible errors, obviating the need for an appeal. Moreover, it is an appellant's burden, utilizing the rules of practice, to ensure that this court is provided with an adequate appellate record. Practice Book § 3082; Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Kaplan v. Kaplan, 186 Conn. 387, 388, 441 A.2d 629 (1982).

The record in the present case is replete with inconsistencies which could have been resolved by Pepsi at trial. It appears that the trial judge assumed that an agreement had been reached to try the defendants' cross complaints to the court after the jury portion of the trial. This is evident not only in statements made by the court throughout the proceedings, to which counsel acquiesced, but also in the court's memorandum of decision. A brief summary of correspondence prior to trial and statements during trial demonstrates the opportunities Pepsi had to alert the trial court to any possible error that had occurred, and to preserve the record for appeal. Pepsi simply failed to avail itself of these opportunities.

Subsequent to a pretrial conference, the assignment judge, Berdon, J., sent a letter to all attorneys of record, in which the judge said, inter alia, that the parties were not entitled to a jury trial on the cross complaints since a claim for indemnification is equitable. ⁴ 4] The letter also stated that the cross complaints would be tried to the court, and that, if a plaintiff's verdict was returned at trial, the court would give the parties an opportunity to present additional evidence on their cross complaints. In a letter to the trial court, dated the same day as Judge Berdon's letter, counsel for Pepsi informed the court that he had contacted his client and that Pepsi did not wish to waive its right to a jury determination of its cross complaints pursuant to the judge's pretrial conference request. Pepsi now claims that the letter from Judge Berdon "ordered" that a court determine its cross claims in disregard of its right to a jury trial. Pepsi also argues, in essence, that its letter to the court was an objection to this order. We disagree.

First, we do not construe Judge Berdon's letter to counsel to be a ruling or court order. Although the letter did characterize the cross complaints as equitable in nature, it also contained other information concerning the scheduling of motions and it ended with a paragraph indicating that the judge was open to suggestions. It was not framed in the context of a formal ruling on any one issue. Second, Pepsi's letter to the court was nothing more than a response to suggestions made at a pretrial conference. ⁵ It cannot be considered a formal objection. See Rybinski v. State Employees' Retirement Commission, supra, 173 Conn. at 466, 378 A.2d 547. Prior to the start of the jury trial on the plaintiff's complaint, had Pepsi wished to preserve the issue for appeal, it could and should have placed a formal objection on the record and sought a determination by the trial judge as to its right to a jury trial on the cross complaints. Id.

On December 8, 1982, prior to jury selection, Pepsi's counsel asked the court to whom the cross complaints would be tried. The court indicated that the cross complaints would be tried to the court at the end of the jury trial. ⁶ Pepsi did not object at this point or on subsequent occasions when the judge and other counsel referred to a court trial of the cross complaints. The only objection came at the time of the court trial when it was too late for the trial judge to change the course of the proceedings. ⁷ See Sinisgalli v. Warden, 153 Conn. 599, 602, 219 A.2d 724 (1966). Pepsi cannot now claim a new trial because of a situation which was in part caused by its failure to make a timely objection. ⁸ See, e.g., Enquire Printing & Publishing Co. v. O'Reilly, 193 Conn. 370, 378, 477 A.2d 648 (1984); Battistelli v. Connohio, Inc., 138 Conn. 646, 650, 88 A.2d 372 (1952).

Pepsi also had an opportunity to clarify the basis for trying the cross complaints to the court when the trial court's memorandum of decision on the cross complaints was issued. The trial court stated in its decision that by oral stipulation of counsel, the court agreed it would decide all cross complaints. Further, he stated that it was also agreed that the defendants would have an opportunity to file cross complaints and offer additional evidence to supplement what the court had heard during the jury trial. If Pepsi disagreed with these representations, it should have utilized Practice Book § 3082 to clarify the legal or factual basis for the trial court's statements. See Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); Kakalik v. Bernardo, 184 Conn. 386, 390-91, 439 A.2d 1016 (1981). ⁹ Pepsi failed to take advantage of this procedure, and we therefore have no basis to conclude that the trial court erred in its recollection of what had transpired. ¹⁰ See Kakalik v. Bernardo, supra, at 391, 439 A.2d 1016. It is the appellant's responsibility to secure an adequate record, and under normal circumstances a case will not be remanded to correct a deficiency the appellant could have remedied. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); ¹¹ see Grunschlag v. Ethel Walker School, Inc., supra; Kaplan v. Kaplan, 186 Conn. 387, 388 n. 1, 441 A.2d 629 (1982).

There is no error.

In this opinion the other Judges concurred.

1 Pepsi and East Rock filed motions to set aside the verdict, both of which were denied by the trial court.

2 It appears from the record that Pepsi's cross complaint against Glass Container was not pursued at the court trial.

3 The defendant Pepsi presented another issue in its preliminary statement of issues, claiming error in the trial court's admission of and reliance on certain testimony. This claim was not briefed or argued at oral argument and is thus considered abandoned for purposes of this appeal.

4 Judge Berdon cited the case of Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82 (1962), for this proposition. We do not address the issue of whether or not his application of Lockwood was correct.

5 We note that...