New London Federal Sav. Bank v. Tucciarone

• Decision Date: 17 March 1998
• Docket Number: No. 16263,16263
• Citation: 709 A.2d 14,48 Conn.App. 89
• Court: Connecticut Court of Appeals
• Parties: NEW LONDON FEDERAL SAVINGS BANK et al. v. Thomas J. TUCCIARONE et al. Walter R. SOLOMONS et al. v. Thomas J. TUCCIARONE et al.

Page 14

709 A.2d 14

48 Conn.App. 89

NEW LONDON FEDERAL SAVINGS BANK et al. v. Thomas J. TUCCIARONE et al.

Walter R. SOLOMONS et al. v. Thomas J. TUCCIARONE et al.

No. 16263.

Appellate Court of Connecticut.

Argued Nov. 12, 1997.

Decided March 17, 1998.

William R. Moller, Greenwich, with whom were Janet P. Sistare, Stuart G. Blackburn, Windsor Locks, and Anthony F. DiPentima, Hartford, for appellants (plaintiffs).

Michael D. O'Connell, Hartford, with whom, on the brief, were Julia B. Morris and J. Preston Ruddell, for appellees (named defendant et al.).

Before LANDAU, SPEAR and DALY, JJ.

LANDAU, Judge.

These appeals are from the judgments rendered following defendants' verdicts in a jury trial. These consolidated appeals, which are identical, involve cases consolidated in the trial court. ¹ We affirm the judgments of the trial court.

On appeal, the plaintiffs, numerous tenants of commercial real estate and their respective insurance carriers, raise several claims, but only two of the claims are reviewable: (1) that the trial court improperly allowed an expert witness for the defendant owners' to testify beyond the scope of direct examination and to render an opinion not disclosed prior to trial; and (2) that the trial court failed to set aside the verdict, which the plaintiffs claim was against the evidence with respect to their nuisance count.

The jury could reasonably have found the following facts. The plaintiffs conducted their various professions and businesses as tenants on the premises known as Flanders Plaza located at 15 Chesterfield Road in East Lyme, which is owned by the defendants Thomas J. Tucciarone, Michael J. DiProspero, Kaj Snellman and the Snellman Limited Partnership (owners). On September 30, 1988, a fire started in a light fixture on the second floor and spread throughout the premises, causing damage to the property and businesses of the plaintiffs.

To recover the various losses they sustained, the plaintiffs sued several entities; ² the owners, however, were the only defendants remaining at the time of trial. The two relevant complaints each contain two counts, one alleging numerous acts of negligence and carelessness against the owners with respect to the construction and maintenance of the premises and one alleging that those acts or omissions also created a nuisance. The cases were tried to a jury in the late spring and early summer of 1996. After the jury answered interrogatories in favor of the owners and rendered defendants' verdicts in all cases, the plaintiffs moved to set aside the verdicts and for a new trial. The trial court denied the motions and rendered judgment in favor of the owners. These appeals followed.

I

The plaintiffs' first claim concerns the trial court's evidentiary rulings. "It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court's rulings will not be disturbed on appellate review absent abuse of that discretion." Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990). "Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law.... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter.... State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985)." (Internal quotation marks omitted.) Id., at 455, 569 A.2d 10. "In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court's ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987)." Curry v. Burns, 33 Conn.App. 65, 69, 633 A.2d 315 (1993).

The plaintiffs' claim concerns the testimony of the owners' expert witness Beth Anderson, an electrical engineer, who was called to render her opinion as to the cause of the subject fire. Anderson's deposition was taken on numerous days prior to trial. In their briefs and at oral argument, the plaintiffs' claim that Anderson's trial testimony was inconsistent with her deposition testimony and the owners' expert witness disclosure made pursuant to Practice Book § 220(D). ³ The record reveals, however, that the plaintiffs' claim is really an evidentiary one.

The owners, pursuant to § 220(D), disclosed Anderson as an expert witness on April 3, 1991, stating, "Anderson will testify with respect to the facts and circumstances of the fire on September 30, 1988 ... leading [to] her conclusion that the fire was caused within a florescent light fixture...." The owners supplemented their disclosure on April 10, 1996, stating, "Beth Anderson will offer expert opinions, substantially in conformity with her deposition testimony, rendered on October 30, 1995, October 31, 1995, November 1, 1995, and December 18, 1995, as supplemented by the information and opinions set forth in the attached letter, of even date...." In the subject letter, Anderson opines that the fire was due to a defect in the light ballast. Anderson made no mention of insulation in her letter.

Anderson testified on behalf of the owners at trial. On direct examination, defense counsel asked Anderson if she had an opinion about whether there was insulation on top of the light fixture. ⁴ The plaintiffs did not object to the question or testimony at the time it was given. On cross-examination, however, the plaintiffs sought to impeach the credibility of Anderson with a prior inconsistent statement. ⁵ On redirect, counsel for the owners attempted to rehabilitate Anderson. ⁶ The plaintiffs objected to the questioning as being "outside the scope" of prior examination. ⁷ The trial court heard the arguments of counsel and overruled the objection. ⁸ We agree with the trial court and find no abuse of discretion.

Direct examination is conducted by the party who calls a witness and is limited to the substantive facts of the case and is followed by cross-examination, if any. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) §§ 3.4.2, 3.4.3. "While it is settled Connecticut law that inquiry upon cross-examination is limited by the scope of the direct examination; Grievance Committee v. Dacey, 154 Conn. 129, 150, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S.Ct. 1325, 18 L.Ed.2d 404, reh. denied, 387 U.S. 938, 87 S.Ct. 2048, 18 L.Ed.2d 1006 (1967); that scope is determined by all of the evidence offered during direct examination." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn., 518, 525, 457 A.2d 656 (1983). "The court could properly allow the proponents to inquire as to any facts which would tend to rebut or modify any material conclusion or inference resulting from facts elicited on the [cross-examination]...." State v. McCarthy, 197 Conn. 247, 260, 496 A.2d 513 (1985). A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have 'opened the door' to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness. See State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). "The basic function of a redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination.... Where evidence is introduced showing an apparent [contradiction in testimony, the party offering the testimony] is entitled to explain the circumstances so that the trier can properly evaluate it." (Citation omitted; internal quotation marks omitted.) Kucza v. Stone, 155 Conn. 194, 198, 230 A.2d 559 (1967).

Here, the owners elicited testimony about insulation from Anderson on direct examination. If the plaintiffs wanted to prevent Anderson from testifying about insulation over the light fixture because such testimony was beyond the scope of the expert witness disclosure made pursuant to § 220(D), the time to object was during direct examination. Instead, the plaintiffs chose the strategy of impeaching Anderson's credibility. In doing so, they invited further testimony on redirect examination when the owners attempted to rehabilitate their expert. "[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject." (Internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 565, 645 A.2d 993 (1994).

Under the circumstances, the court exercised its sound discretion in permitting Anderson to testify about the insulation on redirect examination. The plaintiffs questioned Anderson about insulation on cross-examination, and, as the trial court noted, Anderson's opinion, or lack of an opinion, about the insulation was not related to the cause of the fire.

We also agree with the trial court's ruling regarding Anderson's opinion on the issue of moisture in the ballast. On cross-examination, the plaintiffs asked Anderson if she knew that the roof leaked and whether moisture would cause a ballast to malfunction. On redirect, the owners asked Anderson if she had an opinion concerning moisture and the ballast in question. The plaintiffs objected to the question claiming the owners had not disclosed Anderson's opinion concerning moisture. The trial court overruled the objection because, again, the owners had opened the door to the issue of moisture on cross-examination.

II

The plaintiffs' second claim, which concerns the sufficiency of the evidence, is that the trial court improperly failed to set aside the verdict with respect to their nuisance count because the jury failed to consider the nuisance count and because there was a preponderance of evidence that the owners breached their duties to the tenants by violating applicable building and safety codes, which created a dangerous condition. We disagree.

A

An examination of the procedural posture of the case is necessary for our review of the first of the...