Malaguit v. Ski Sundown, Inc.

• Decision Date: 26 June 2012
• Docket Number: No. 33180.,33180.
• Citation: 136 Conn.App. 381,44 A.3d 901
• Court: Connecticut Court of Appeals
• Parties: Nona MALAGUIT et al., v. SKI SUNDOWN, INC.

136 Conn.App. 381

44 A.3d 901

Nona MALAGUIT et al.,

v.SKI SUNDOWN, INC.

No. 33180.

Appellate Court of Connecticut.

Argued Feb. 14, 2012.

Decided June 26, 2012.

Ralph J. Monaco, with whom were Thomas J. Londregan, and on the brief, Jonathan T. Lane, New London, for the appellants (plaintiff James Malaguit).

Elizabeth F. Ahlstrand, with whom, on the brief, were Mark B. Seiger, West Hartford, and Charles F. Gfeller, for the appellee (defendant).

LAVINE, ALVORD and ESPINOSA, Js.

ESPINOSA, J.

The substitute plaintiff James Malaguit ¹ appeals from the judgment of the trial court denying his motion to set aside the verdict, following a jury trial, in favor of the defendant, Ski Sundown, Inc. The plaintiff alleges that the court improperly (1) charged the jury on General Statutes § 29–212, (2) refused to provide the jury with the legislative history of § 29–212 to aid in its application of the statute, (3) failed to deliver an instruction concerning spoliation of evidence, and (4) refused to instruct the jury that exculpatory language contained in documents that the defendant provided to the plaintiff should be disregarded as a matter of public policy. The defendant asserts that the general verdict rule prohibits review of the plaintiff's claims. We agree with the defendant, and, accordingly, affirm the judgment of the trial court.

The following undisputed factual and procedural history is relevant to our consideration of this appeal. On February 17, 2006, the plaintiff, who was fifteen years old at the time, went skiing at a ski area in New Hartford owned and operated by the defendant. While attempting to ski over a snow jump located within an area known as a “terrain park,” the plaintiff lost control and fell, landing in a way that severely injured his spine and left him a quadriplegic.

The plaintiff brought his complaint in the Superior Court on February 5, 2008. The complaint alleged that the defendant was negligent by building and maintaining a snow jump, which created a hazard not inherent in the sport of skiing. In its answer, the defendant denied the allegations made in the complaint and raised two special defenses, namely, that, pursuant to § 29–212, the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing and that his damages were caused by his own negligence.

The defendant claimed that § 29–212² was a complete bar to any recovery by the plaintiff. The defendant argued that, under § 29–212, ski area operators were not liable for any injuries caused by terrain variations that were the result of “snow grooming.” According to the defendant, the snow jump in question had been created by a process of snow grooming, and, therefore, the plaintiff assumed the risk of any injury he suffered by using the jump.

The plaintiff opposed the defendant's invocation of § 29–212, asserting that it was not applicable to the case because, as a matter of law, a snow jump is not a hazard inherent in the sport of skiing. Accordingly, the plaintiff argued that the court should not instruct the jury on § 29–212. The court rejected the plaintiff's argument and, in its charge to the jury, included an instruction on § 29–212.

Before the court charged the jury, the plaintiff requested that the court's instructions include an adverse inference charge on spoliation of evidence. As the basis for this request, the plaintiff cited the defendant's failure (1) to take, in anticipation of litigation, pictures or videos of the snow jump on the night of the accident; (2) to interview witnesses on the night of the accident; and (3) to maintain photographs and videos of the ski jump on its website.

The court denied the plaintiff's request, holding that the plaintiff had failed to demonstrate how this evidence was necessary to prove an essential element of his case. The court noted that the plaintiff had taken his own photographs of the terrain park approximately two weeks after the accident. Furthermore, the court maintained that the plaintiff had failed to show that the defendant controlled the evidence in question.

On October 19, 2010, the jury returned a verdict for the defendant.³ On October 29, 2010, the plaintiff filed a motion to set aside the verdict, which motion the defendant opposed. The court accepted supplemental memoranda from the parties and, on December 23, 2010, it held a hearing on the motion. On February 3, 2011, the court issued its decision denying the motion. The plaintiff filed the present appeal on February 22, 2011. Additional facts will be set forth as necessary.

The defendant alleges that review of the plaintiff's claims is precluded by the general verdict rule. We agree.⁴ “The general verdict rule provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.... In circumstances in which a party has requested interrogatories that fail to flesh out the basis of the jury's verdict, this court has noted that the general verdict rule is still applicable because [i]t is not the mere submission of interrogatories that enables [the reviewing court] to make that determination; rather, it is the submission of properly framed interrogatories that discloses the grounds for the jury's decision.... [I]n a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall....

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.” (Internal quotation marks omitted.) Crews v. Pudlinski, 129 Conn.App. 807, 811–12, 21 A.3d 568, cert. denied, 302 Conn. 948, 31 A.3d 384 (2011), cert. denied sub nom. Crews v. Lime Rock Associates, –––U.S. ––––, 132 S.Ct. 1863, 182 L.Ed.2d 644 (2012).

Our Supreme Court has held that “the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 472, 857 A.2d 888 (2004).

In the present case, the plaintiff made a timely request for interrogatories, but the court declined to submit them to the jury. The court stated in its memorandum of decision on the motion to set aside the verdict that “[t]he plaintiffs' proposed interrogatories focused on the ski statute, and the court was concerned that, if the proposed interrogatories were to be used, the jury would perceive the court to be taking a critical view of the defendant's case.” The defendant also had submitted proposed interrogatories, which, according to the court, “did not appear ... to be balanced.” Ultimately, the court determined that it “was unable to prepare interrogatoriesthat would be useful but would not simultaneously appear to oversimplify the issues that were carefully delineated in the charge to the jury.” The plaintiff did not object to the court's decision not to submit interrogatories to the jury.

This court has stated that “the failure of the plaintiffs to object to jury deliberation without interrogatories is the functional equivalent of a failure to request interrogatories.” Gajewski v. Pavelo, 32 Conn.App. 373, 381, 629 A.2d 465 (1993), rev'd on other grounds, 229 Conn. 829, 643 A.2d 1276 (1994). The plaintiff submitted proposed interrogatories to the court, but he failed to object to the court's decision not to submit them to the jury. Furthermore, the plaintiff does not claim on appeal that the court's submission of the matter to the jury without interrogatories was improper.

We observe that, even if the plaintiff properly had objected to the court's refusal to submit interrogatories to the jury, the plaintiff's proposed interrogatories would not have shed any light on the basis of the jury's verdict. In this case, the defendant denied the allegations of the plaintiff's complaint and pleaded two special defenses: (1) that, under § 29–212, the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing and (2) that his damages were caused by his own negligence. Accordingly, this case falls within the fourth category of cases in which the general verdict rule can apply, namely, the denial of a complaint accompanied by one or more special defenses. See Tetreault v. Eslick, supra, 271 Conn. at 472, 857 A.2d 888.

Critically, as the court noted in its memorandum of decision, the plaintiff's proposed interrogatories dealt only with the defendant's first special defense, that the plaintiff assumed the risk for any injury caused by hazards inherent in the sport of skiing. They did not address either the defendant's denial of the allegations of the complaint or its second special defense of comparative negligence. Therefore, even if the court had submitted these interrogatories to the jury, we still would have to speculate as to whether the jury found that the plaintiff had failed to establish the allegations made in the complaint or that the defendant successfully had demonstrated that the plaintiff was more negligent than the defendant and that his own negligence was the proximate cause of his injuries. “When there are alternative bases for the verdict, it is necessary for the interrogatories to reveal the...