Sady v. Liberty Mut. Ins. Co.

• Decision Date: 24 November 1992
• Docket Number: No. 11071,11071
• Court: Connecticut Court of Appeals
• Parties: Carol SADY et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.

Page 819

616 A.2d 819

29 Conn.App. 552

Carol SADY et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.

No. 11071.

Appellate Court of Connecticut.

Submitted on Briefs Sept. 24, 1992.

Decided Nov. 24, 1992.

James E. Coyne, Bridgeport, and Colleen D. Fries, Legal Intern, filed a brief, for appellants (plaintiffs).

Gregory C. Willis and Derby F. Anderson, Fairfield, filed a brief, for appellees (defendants).

Before DALY, FOTI and LAVERY, JJ.

LAVERY, Judge.

The plaintiff ¹ appeals from the trial court's denial of her motion to set aside a jury verdict for the defendants ² in a negligence action. The plaintiff claims that the trial court improperly charged the jury with respect to the plaintiff's duty to act with reasonable care in the absence of a contributory negligence defense asserted by the defendants. The defendants claim that the plaintiff's arguments on appeal should be barred by the effect of the general verdict rule. We reverse the judgment of the trial court, and remand the action for a new trial.

The jury could reasonably have found the following facts. In 1986, the plaintiff, Carol Sady, and her late husband, Peter Sady, purchased a house in Norwalk. At about the same time, the defendants issued an insurance policy to the plaintiff and her husband. In August of 1987, Peter Sady died as the result of a work related accident. After her husband's death, the plaintiff contacted the defendant insurance companies regarding benefits that she assumed were due under a mortgage life insurance policy that she claims she and her husband had requested and purchased from the defendants. The defendants responded that the Sadys had not purchased mortgage life insurance, and that the plaintiff would not receive any benefits.

The plaintiff commenced this action in 1988, claiming that the defendants were negligent in not obtaining the type of insurance coverage that the plaintiff and her deceased husband had requested. After a jury trial, a verdict was rendered in favor of the defendants. The plaintiff moved to set aside the verdict, claiming defects in the jury instructions. That motion was denied, and the plaintiff appealed to this court.

Our well settled rules regarding the review of jury charges require that the jury instructions "be read as a whole ... and ... not judged in artificial isolation from the overall charge.... The whole charge must be considered from the standpoint of its effects on the jurors in guiding them to a proper verdict ... and not critically dissected in a microscopic search for possible error." (Citations omitted; internal quotation marks omitted.) Sullivan v. City of Norwalk, 28 Conn.App. 449, 456, 612 A.2d 114 (1992). A proper jury charge "fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to the legal rights of either litigant...." (Internal quotation marks omitted.) Nesbitt v. Mulligan, 11 Conn.App. 348, 354, 527 A.2d 1195 (1987). It "must be correct in law, adapted to the issues and ample for the guidance of the jury...." Id. In order to apply this standard of review, it is necessary to examine the charge and the various objections to it raised by the plaintiff.

At the close of evidence, the court gave instructions to the jury regarding the law of negligence and the burden of proof. The plaintiff objected to the court's charging the jury, on four separate occasions, that the plaintiff was under a duty to exercise "reasonable care." During the main body of the charge, the court twice referred to a general duty of reasonable care owed by the plaintiff.

After the charge, the plaintiff's attorney took exception to the court's mention of a plaintiff's duty to behave as a reasonably prudent person in the absence of a claim by the defendants of contributory negligence. When the jury returned to the courtroom, the court attempted to clarify the charge, but noted that "the plaintiff has to use reasonable care under the ... circumstances." The jury was dismissed for lunch, and the plaintiff's counsel objected to the recharge. After the break, but before the jury retired to deliberate, the court again attempted to clarify the issue of contributory negligence: "In accordance with my general instructions remember, as I said, it's a question of a reasonably prudent person.... Of course this particular case was on a ... question of negligence. So the plaintiff had to prove a negligent act by the defendant[s], as I have defined--and of course contributory negligence, if it was proved, would have had to have been a defense by the defendant[s]...." After the jury left the courtroom to begin its deliberation, the plaintiff's attorney took exception to that subsequent charge.

When the jury returned with a defendants' verdict, the court did not accept the verdict, but instead, over the objection of the defendants' counsel, asked the jury to reconsider its verdict, saying, "If you believe that the plaintiff was guilty of any type of contributory negligence then it may be a question whether your verdict is correct or not." The court instructed the jury to send him a note if it needed further clarification. Shortly after, the jury sent a note from the jury room stating that it needed "assistance to fully understand contributory negligence."

The jury returned to the courtroom, and the court once more charged it on the issue of contributory negligence, stating that 'the defendant[s] did not use a special defense of contributory negligence and he would [have] to plead it, and ... he did not plead it ... the negligence is only the question of the defendant[s'] negligence ... however, the plaintiff must have been using ordinary--it had to be in the exercise of due care...." The jury was excused and asked to reconsider its verdict in light of the recharge. The plaintiff's counsel again took exception. The jury returned with a defendants' verdict, and that verdict was accepted by the court.

General Statutes § 52-114 ³ explicitly states that there is a presumption that the plaintiff in a negligence action was exercising reasonable care at the time of injury, and that the defendant must specially plead contributory negligence. The statute allocates the burden of proof of contributory negligence to the defendant once it has been specially pleaded. The effect of the statute is to "shift the burden of proving freedom from contributory negligence from the plaintiff, where it rested under the common law (Kotler v. Lalley, 112 Conn. 86, 151 A. 433 [1930],) and to place the burden of proving contributory negligence upon the defendant if the latter sees fit to claim it by pleading it." LeBlanc v. Grillo, 129 Conn. 378, 385, 28 A.2d 127 (1942). ⁴ In the present case, the defendants did not plead contributory negligence, so the plaintiff had no burden under the law to prove she exercised reasonable care; it was presumed. The court did state that contributory negligence had to be pleaded by the defendants, but it also consistently stated...