Mack v. LaValley
| Decision Date | 05 October 1999 |
| Docket Number | (AC 18196) |
| Citation | 738 A.2d 718,55 Conn. App. 150 |
| Court | Connecticut Court of Appeals |
| Parties | LILLIAN MACK v. BERNARD LAVALLEY ET AL. |
Lavery, Schaller and Dupont, JS. Michael S. Taylor, with whom were Brian P. Learning and, on the brief, Daniel P. Scapellati and David G. Hill, for the appellants (defendants).
Brian W. Prucker, for the appellee (plaintiff).
The defendants, Bernard LaValley and Pauline LaValley, appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Lillian Mack, in this premises liability action. On appeal, the defendants claim that the trial court improperly (1) admitted into evidence deposition testimony of a plaintiffs witness and failed to redact the witness' opinion testimony contained in that deposition, (2) denied the defendants' motions to set aside the verdict and for judgment notwithstanding the verdict and (3) failed to reduce the economic damages award by the amount of collateral source payments received by the plaintiff. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of this appeal. On May 29, 1992, the plaintiff, a tenant of the defendants, was injured when she slipped and fell on the exterior stairs of the premises owned by the defendants. Thereafter, the plaintiff commenced a negligence action against the defendants seeking damages for her injuries. The plaintiff claimed that a defective and dangerous condition existed at the top threshold of the steps, which caused her to fall, and that the defendants knew or should have known of the condition and failed to make repairs.
At the close of the plaintiffs case-in-chief, the defendants filed a motion for a directed verdict, which the trial court denied. The defendants rested their case without presenting witnesses or evidence, and the jury returned a verdict in favor of the plaintiff. The defendants then filed motions to set aside the verdict and for judgment notwithstanding the verdict, which the court denied. This appeal followed. Other facts will be discussed where they are relevant to the defendants' claims.
The defendants first claim that the trial court improperly admitted the deposition testimony of a plaintiffs witness because there was insufficient evidence to show that the witness was unavailable as required by Practice Book § 13-31. We disagree.
(Internal quotation marks omitted.) Pelarinos v. Henderson, 34 Conn. App. 726, 728-29, 643 A.2d 894, cert. denied, 231 Conn. 909, 648 A.2d 155 (1994).
Practice Book § 13-31 (a) provides in relevant part:
The following additional facts are relevant to this claim. At trial, the plaintiff sought to introduce the deposition testimony of a witness, John Fitzgerald, an engineer deposed by both parties prior to trial, whom the plaintiff was unable to locate for the trial. The defendants objected to the admissibility of the deposition, claiming that the plaintiff had failed to establish the witness' unavailability. The defendants also requested that if the deposition testimony was admitted, portions of the testimony be redacted.
The plaintiff's counsel then called a paralegal who works in his law office to testify as to the witness' unavailability. She testified that when she called the witness at his home in Westbrook she heard a message on his answering machine stating that he was unavailable, that he was in Florida and that he could be reached at a certain telephone number that was recited. She further testified that she telephoned the number in Florida several times, including the day of trial, and no one answered. The trial court found that there was no indication that the absence of the witness was procured by the plaintiff. The court further found that fair and reasonable efforts were made to locate the witness, who at the time was not within thirty miles of the place of the trial, and, therefore, that the plaintiff had established unavailability as required by Practice Book § 13-31.
Under the circumstances, we conclude that the trial court did not clearly abuse its discretion in finding that the plaintiff had established the witness' unavailability and had satisfied the requirements of Practice Book § 13-31 for the admission of the deposition testimony. The cases relied on by the defendants are inapposite and do not concern the admissibility of deposition testimony under Practice Book § 13-31. The defendants have failed to demonstrate that the trial court clearly abused its discretion in finding that the witness was at a distance greater than thirty miles from the place of trial, as set forth in the rules of practice. Therefore, their claim must fail.
The defendants next claim that the trial court improperly admitted the opinion testimony of the plaintiff's witness. We are not persuaded. The following additional facts are relevant to this claim. After concluding that the plaintiff established the witness' unavailability for trial, the court addressed the issue of the witness' qualifications. The defendants claimed that the plaintiff failed to lay a foundation establishing the witness as an expert and, therefore, the testimony should have been excluded. The court agreed with the defendants that there was nothing in the testimony qualifying the witness as an expert. The court concluded that the witness could not testify as an expert, but found that "there is nothing to prevent [the witness] from being able to testify as an individual person, as a fact witness, as someone who has actually seen and observed circumstances that may be, in fact, relevant."
The trial court determined that the witness could testify as a fact witness because photographs of the stairs he had taken already had been introduced into evidence without objection and had been testified to by the plaintiff as depicting the stairs at the time of the accident. The court concluded that the witness could testify as to two things, namely, the steps being slippery and the fact that there was a portion of the threshold, that sloped away from the door toward the street.1 These conditions are capable of being observed by laypersons.
The defendants claim that the admission of the witness' opinion testimony was improper because (1) it essentially constituted expert opinion, (2) sufficient assurances of reliability were lacking because the defendants did not have an opportunity at trial to cross-examine the witness, (3) the witness' observations were not corroborated because they were too remote in time and there was no evidence that the condition that caused the plaintiffs fall was the same as that observed by the witness, and (4) the plaintiffs introductory comments to the venire panels that the witness was a professional engineer, along with the portion of the testimony that was admitted, left the jury to speculate as to the qualifications of the witness, thereby prejudicing the defendants.
upon a showing of a clear abuse of the court's discretion." (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).
The defendants first claim that the witness' testimony was not a proper lay opinion because it "should have been more properly characterized as expert opinion." The defendants, however, offer no authority or legal analysis in support of this assertion. We therefore decline to review this claim. Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).
The defendants next claim that the testimony was improperly admitted without sufficient assurances of its reliability because the defendants did not have an opportunity at trial to cross-examine the witness. We disagree.
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