Muscio v. Kalinowski

Decision Date13 December 2016
Docket NumberCV116023831S
CourtConnecticut Superior Court
PartiesElizabeth Muscio et al. v. Paul Kalinowski, Jr

UNPUBLISHED OPINION

MEMORANDUM OF DECISION MOTION TO SET ASIDE VERDICT AND FOR NEW TRIAL (#170)

Robin L. Wilson, J.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The plaintiffs, Elizabeth Muscio, Daniel Muscio and Brianna Muscio commenced this action by service of writ, summons and complaint against the defendant, Paul Kalinowski, Jr. The original complaint is dated September 12, 2011, with a return date of October 4, 2011. The case was returned to court on September 28, 2011. The plaintiffs alleged in their original complaint dated September 12, 2011, the following facts. The plaintiffs, Elizabeth Muscio and Brianna Muscio worked at the defendant Kalinowski's stables from approximately May 2009 to September 15, 2009. The plaintiff, Elizabeth Muscio's duties included, but were not limited to cleaning farm grounds, mucking stalls, filling water buckets feeding the horses, sweeping, cleaning saddles, watering the arena and turning out horses. The plaintiff was not paid for these services in cash or other equivalent, but was engaged in an agreement with Kalinowski to exchange for value by getting riding lessons and use of the stable animals after work was performed in sufficient quantity. The plaintiff had as did her daughter and many other riders at the stables, a verbal agreement with the defendant to perform these duties and, in exchange, the plaintiff could ride a horse and receive lessons at no charge.

On September 15, 2009, plaintiff, Elizabeth Muscio performed her duties and, with the permission and specific direction of the defendant, took a recently gelded, chestnut quarter horse known as " Jolt" for a lesson to a padlock area as directed by the defendant. The horse Jolt was approximately three years old and was very unreliable, recently gelded, and a risky horse for any rider. Plaintiff was never informed that Jolt was recently gelded and she was unaware of the risks in riding him. The defendant, knowing that Jolt was recently gelded and not fully trained or trustworthy suggested she ride Jolt and did not inform the plaintiff of this prior to her riding him.

While the plaintiff was riding Jolt to the area directed by the defendant, two female horses trotted close by and Jolt reacted in a violent and dangerous manner and bucked uncontrollably causing the plaintiff to be hit in the face with the back of Jolt's head, which caused the plaintiff to be thrown into the air, landing on her face in the arena. The plaintiff, Brianna Muscio witnessed Jolt rearing and throwing her mother and injuring her. The plaintiff Brianna Muscio was traumatized from this accident which she observed and ran to the aide of her mother. As a result of being thrown from Jolt, the plaintiff Elizabeth Muscio lost consciousness and sustained severe injuries which required her hospitalization.

The original complaint is in three counts. Count one is as to Elizabeth Muscio and alleges that the defendant was negligent in that he failed to inform the plaintiff that the horse Jolt was recently gelded; failed to advise the plaintiff that the horse Jolt was an unreliable and testy horse; failed to properly advise plaintiff of proper techniques in saddling and tacking the horse before riding, in spite of plaintiff's inquiries about this; failed to properly advise the plaintiff of what to do if the horse became dangerous; failed to properly call for emergency medical personnel after the fall; failed to transport the plaintiff to the hospital in a manner reasonably calculated to prevent further injury and damages to the plaintiff and failed to seek immediate and qualified, emergency care for the plaintiff. Count two is a loss of consortium claim by the plaintiff, Elizabeth Muscio's husband, Daniel Muscio and count three is a negligent infliction of emotional distress/bystander emotional distress claim by the plaintiff's daughter Brianna Muscio.

The defendant in his original answer denied that he was negligent and raised the special defense of assumption of the risk pursuant to General Statutes § 52-557p. The defendant claimed that the plaintiff was a person who assumed the risk and legal responsibility for any injury to her person or property arising out of the hazards inherent in equestrian sports and that her injuries were not caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition use, structure or activity by the person providing the horse or horses or his agents or employees. The defendant also raised the special defense of comparative negligence and alleged that the plaintiff's injuries were the result of her own negligence in that she failed to make proper use of her senses or faculties to avoid the injury and was not watchful.

Approximately four days into the trial, and almost five years after the filing of their original complaint, the plaintiffs requested leave to amend the original complaint. The plaintiffs requested to amend the complaint to add a number of allegations which were not included in their original complaint. The defendant strenuously objected to the majority of the plaintiffs' additional allegations. The court allowed the plaintiffs to amend their complaint to include those allegations which expanded on the allegations contained in the original complaint, however the court excluded those allegations which were never pled in the original complaint, and which were new allegations of negligence. The court also excluded allegations on which there was no evidence submitted to the jury.

Jury selection began on July 7, 2016. The jury heard evidence over a period of eight days, from July 13 through July 21 and on July 22, 2016, the jury returned a verdict for the defendant. On August 1, 2016, the plaintiffs filed a motion to set aside the verdict and for a new trial, and on August 10, 2016, the defendant filed an objection to the motion. Oral argument was heard on the motion at short calendar on September 19, 2016.

DISCUSSION
I Motion For New Trial

" A motion for a new trial is addressed to the sound discretion of the trial court and will never be granted except on substantial grounds." (Internal quotation marks omitted.) Connecticut Light & Power Co. v Gilmore, 289 Conn. 88, 98, 956 A.2d 1145 (2008) . . ." The basic question which the trial court has to decide is whether upon all the evidence an injustice has been done." Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983).

The grounds upon which a trial court may award a new trial is set forth in General Statutes § 52-270 (" Causes for which new trials may be granted"). In particular, § 52-270(a) allows the trial court to grant a new trial in an action which has been heard before the court for the following reasons: " mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases."

In the present case, the ground of " for other reasonable cause" is ostensibly the only ground set forth by the plaintiffs which might apply under the express provisions of § 52-270; there has been no contention by the plaintiffs of newly discovered evidence, mispleading, or want of notice in the underlying action. However, our Supreme Court has stated that " [a]lthough . . . § 52-270 permits the court to grant a new trial upon proof of reasonable cause, the circumstances in which reasonable cause may be found are limited . . . The basic test of reasonable cause is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal . . . A new trial may be granted to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident." (Internal quotation marks omitted.) Murphy v. Zoning Board of Appeals, 86 Conn.App. 147, 152-53, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).[1] Thus, " [§ 52-270] does not furnish a substitute for, nor an alternative to, an ordinary appeal, but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted." (Internal quotation marks omitted.) Jacobs v. Fazzano, 59 Conn.App. 716, 724, 757 A.2d 1215 (2000). Here, the plaintiffs have not cited to any evidence that would meet the reasonable cause test as enunciated above. Accordingly, the court does not find good cause to grant the plaintiffs a new trial and therefore the plaintiffs' motion for a new trial is denied.

II Motion to Set Aside

When presented with a motion to set aside a verdict, " the [trial] court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Cheryl Terry Enters. v. City of Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). " The trial court possesses inherent power to set aside a jury verdict [that], in the court's opinion, is against the law or the evidence . . . [The trial court] should not set aside a verdict [when] it is apparent that there was some evidence [on] which the jury might reasonably reach [its]...

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