Kemp v. Ellington Purchasing Corp., 4085

• Court: Appellate Court of Connecticut
• Citation: 9 Conn.App. 400,519 A.2d 95
• Decision Date: 30 December 1986
• Docket Number: No. 4085,4085
• Parties: Alan M. KEMP et al. v. ELLINGTON PURCHASING CORPORATION et al.

Page 95

519 A.2d 95 9 Conn.App. 400 Alan M. KEMP et al.
v.
ELLINGTON PURCHASING CORPORATION et al. No. 4085. Appellate Court of Connecticut. Argued Nov. 13, 1986.
Decided Dec. 30, 1986.

[9 Conn.App. 401]

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Sanford J. Plepler, with whom, on the brief, was Debra C. Ruel, Manchester, for appellants (plaintiffs).

John W. Lemega, with whom, on the brief, was George D. Royster, Jr., Hartford, for appellees (defendants).

Before [9 Conn.App. 400] HULL, BORDEN and DALY, JJ.

[9 Conn.App. 401] BORDEN, Judge.

The plaintiff ¹ appeals from a judgment rendered for the defendants ² after a jury verdict finding the issue of liability for the defendants. The principal issue is whether the trial court erred in excluding certain testimony of the plaintiff's expert witness, pursuant to the ruling of this court in Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 476 A.2d 1074 (1984). We find no error.

Certain facts are not in dispute: In April, 1981, the plaintiff was part of a large group of people who were being photographed at a party at the Ellington Ridge Country Club. They were standing on a wooden stairway, which led from an upper patio to the swimming pool area, when the stairway collapsed.

The plaintiff's principal claim is that the court erred by prohibiting his expert engineering witness, Irving W. Glater, from testifying as to whether the defendants had constructive notice of the condition of the stairway prior to its collapse. The plaintiff claims that the court abused its discretion and misapplied Sturdivant v. Yale-New Haven Hospital, supra. We disagree.

[9 Conn.App. 402] The plaintiff's claim arises in the following procedural context. In April, 1982, the plaintiff sued the defendants. In October, 1982, the plaintiff responded to an interrogatory of the defendants by disclosing that he had retained Glater as an expert witness and that Glater had not yet completed his investigation or rendered a report to the plaintiff. In January, 1983, the plaintiff sent Glater's three page report to the defendants. The report disclosed Glater's conclusions as to how the stairway collapsed, the cause of the collapse and the nature of the design defect in the stairway. The report did not mention whether any deterioration of the stairway would have been discernible on inspection.

Prior to trial, the defendants deposed Glater. During the deposition, the following

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colloquy took place between the defendants' counsel and Glater:

"Q. And in your report, I take it you were just asked to determine why the railing fell down or why the stairway fell down?

"A. I was asked to examine and--I was asked to examine the surviving artifacts apart to determine the cause of failure if possible.

"Q. And that's all you were asked to determine?

"A. Yes.

"Q. And that's all you did determine?

"A. To the best of my ability."

At trial, Glater testified that the primary cause of the collapse of the stairway was deterioration of the wood and metal fasteners due to insect damage and moisture, and that this deterioration had occurred over a period of years. The plaintiff then asked Glater whether this condition "was discoverable by an inspection." The defendants objected. The court sustained the objection, relying on Sturdivant, and the plaintiff excepted.

[9 Conn.App. 403] At the hearing on the plaintiff's motion to set aside the jury's verdict for the defendants, the plaintiff confined his argument to this ruling. In denying the motion, the trial court stated that it did not believe that the plaintiff intentionally misled the defendants. It explained its ruling, however, by emphasizing that Glater's deposition testimony was that he was only retained to determine the cause of the collapse, and that the defendants were thereby led to believe that he, as an expert witness, would not be testifying as to constructive notice. The court also stated that, if Glater's deposition testimony had been inaccurate, it was incumbent on the plaintiff to correct the misstatement and alert the defendants to the plaintiff's intention to use him as a witness on the issue of constructive notice.

Sturdivant v. Yale-New Haven Hospital, supra, was a medical malpractice case in which the plaintiff informed the defendants prior to trial that she had not retained an expert. During the jury selection process, the plaintiff identified her expert, whom she had previously consulted. Id., 104, 476 A.2d 1074. The plaintiff then responded to the defendants' interrogatories by defining the...