LaFaive v. DiLoreto, 2428

• Decision Date: 29 May 1984
• Docket Number: No. 2428,2428
• Citation: 2 Conn.App. 58,476 A.2d 626
• Court: Connecticut Court of Appeals
• Parties: Elsie LaFAIVE v. Mario DiLORETO et al.

Page 626

476 A.2d 626

2 Conn.App. 58

Elsie LaFAIVE v. Mario DiLORETO et al.

No. 2428.

Appellate Court of Connecticut.

Argued Feb. 28, 1984.

Decided May 29, 1984.

Snow Gene Munford, Hartford, for appellants (defendants).

L. Paul Sullivan, Hartford, for appellee (plaintiff).

Before DANNEHY, C.P.J., and TESTO and HULL, JJ.

TESTO, Judge.

The plaintiff was the tenant in an apartment house owned by the defendants, Mario and Rosa DiLoreto. On January 11, 1972, in the early morning, while the plaintiff was descending the interior stairway of the building from her third floor apartment, she fell, head first, down from the second to the first floor. She alleged that, as she was descending, her heel caught on the edge of the rubber mat on the third tread down from the second floor landing and that the mat was raised above the tread surface. The plaintiff commenced a negligence action against the defendants claiming that they had failed to secure the back edge of the rubber mat onto the stairway, to properly inspect the stairway, to provide a handrail and to take reasonable steps to cure the defect, the raised mat. The jury returned a verdict in favor of the plaintiff in the amount of $46,000. The defendants then filed a motion to set aside the verdict which was denied by the trial court. The defendants appeal ¹ from the judgment denying their motion to set aside the verdict. In their appeal, the defendants claim that the court erred (1) in refusing to set aside the verdict because there was no credible evidence of actual or constructive notice to the defendants of the alleged defect in the rubber mat on the stairs; (2) in refusing to set aside the verdict because the proof did not conform to the pleadings; (3) in admitting the plaintiff's personnel records as business records; (4) in curtailing the defendants' cross-examination of the plaintiff regarding her conversation with her attorney during a recess; and (5) in excusing for cause two prospective jurors who were engineers.

I

Our review of a trial court's refusal to set aside a verdict is limited. If on the evidence the jury could reasonably have decided as they did, we will not find error in the trial court's acceptance of the verdict. Kalleher v. Orr, 183 Conn. 125, 126, 438 A.2d 843 (1981). Upon review in this court, we must give the evidence the construction most favorable to support the verdict. Id., 126-27, 438 A.2d 843. The conclusion of the judge who presided at the trial and denied the defendants' motion to set aside the verdict is significant for he had an opportunity superior to ours to weigh the evidence presented and to determine the credibility and effect to be given the evidence. Swift & Co. v. Rexton, Inc., 187 Conn. 540, 543, 447 A.2d 9 (1982); cf. Rood v. Russo, 161 Conn. 1, 5, 283 A.2d 220 (1971).

Whether the jury's general verdict for the plaintiff was premised on either actual or constructive notice, it is sustainable if either type of notice is supported by the evidence. For the plaintiff to recover for the breach of a duty owed to her as an invitee, ² she had to allege and prove that the defendants had actual or constructive notice of the presence of the specific unsafe condition which caused her fall. See Monahan v. Montgomery, 153 Conn. 386, 390, 216 A.2d 824 (1966). Either type of notice must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. Id.; White v. E & F Construction Co., 151 Conn. 110, 113, 193 A.2d 716 (1963). "On a question of notice, the trier's consideration must be confined to the defendant's knowledge and realization of the specific condition causing the injury, and such knowledge and realization cannot be found to exist from a knowledge of the general or overall conditions ... on the premises." Monahan v. Montgomery, supra; Krause v. Almor Homes, Inc., 149 Conn. 614, 618, 183 A.2d 273 (1962).

The named defendant testified that he saw and perceived the raised condition of the mat prior to the accident, but that he did not pay any attention to it because he perceived that physical condition as normal. There was also evidence presented by a qualified expert in the field of safety engineering, who examined the stairway four weeks after the accident. ³ He testified that the waving or elevated condition of the mat would have occurred during the warm weather, and would have come to an end and remained stable throughout the colder weather months so that a person inspecting ⁴ the stairs would have seen the raised condition of the mat for a period of at least two months before the accident occurred. This was a reasonable length of time in which the defendants in the exercise of due care should have discovered the defective condition in time to have it remedied. See Long v. Savin Rock Amusement Co., 141 Conn. 150, 153, 104 A.2d 221 (1954). Under these circumstances, there was ample evidence from which the jury could reasonably have concluded that the claimed specific defect had existed for such a sufficient length of time that the defendants should have known of it or should have discovered it in the exercise of a reasonable supervision of the premises. We, therefore, cannot say that the trial court abused its discretion in refusing to set aside the verdict.

II

To set aside a verdict on the basis of a variance between the pleadings and the proof, the variance must be material in a way which is essential to the cause of action claimed. Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966); Francis v. Hollauer, 1 Conn.App. 693, 695, 475 A.2d 326 (1984); S.H.V.C., Inc. v. Roy, 37 Conn.Sup. 579, 580-81, 428 A.2d 806 (1981). Not every variance, however, is material. If the variance is immaterial, it is disregarded. Practice Book § 178. An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. Strimiska v. Yates, 158 Conn. 179, 184, 257 A.2d 814 (1969). Thus, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts. Id.

The allegations in the complaint state that "when [the plaintiff] arrived at the third tread down from the second floor landing she was caused to trip and fall down the stairway by reason of a ... defective condition of the stairway at said location ...." The defendants posit that at trial evidence was presented that the plaintiff's left heel became caught on the rubber mat and that the accident was not the result of her tripping on the mat. Any variance between the mechanics of the fall as presented during the trial and the definition of the word "trip" is a difference in semantics and does not change the theory of the cause of actions. We must, therefore, conclude that the variance is immaterial and will not invalidate the judgment.

III

Three statutory criteria for the admission of business records are set forth in General Statutes § 52-180. They are (1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. General Statutes § 52-180; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983). Once these criteria have been met by the party seeking to introduce the record, however, it does not necessarily follow that the record itself is generally admissible, nor does it mean that everything in it is required to be admitted into evidence. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., supra, 384, 461 A.2d 422; Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488 (1978); Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969); Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960). Additionally, the information contained in the record must be relevant to the issues being tried; see Maggi v. Mendillo, supra; and the information contained in the report must be based on the entrant's own observation or on information of others whose business duty it was to transmit it to the entrant. Mucci v. LeMonte, supra.

The plaintiff's personnel records were introduced through the president of the company where she was employed. The defendants claim that the trial court erred in admitting these records into evidence as full exhibits over their objections. The specific grounds were that the "business entry qualifications haven't been met with." On appeal the defendants' objections to their admissibility are twofold: (1) as to all three exhibits, they claim that there was no evidence that these were made by or entered as a result of the witnesses' own personal knowledge or on the personal knowledge of the entrant or upon information of others with personal knowledge of the same, who are or were under a business duty to transmit such information to the entrants; and (2) as to two of the exhibits, the defendants claim there was no evidence or testimony presented that the information was recorded at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.

The trial court is given the discretion under the statute to determine whether the criteria of the statute have been satisfied. In reviewing the decision of the trial court, we must construe the statute liberally. Shuchman v. State Employees Retirement Commission, 1 Conn.App. 454, 458-59, 472 A.2d 1290 (1984). The problem with the defendants' first claim, that the job evaluation reports were not based on the personal observation of the witness, is that they failed...