Sanderson v. Steve Snyder Enterprises, Inc.

• Decision Date: 30 April 1985
• Citation: 196 Conn. 134,491 A.2d 389
• Court: Connecticut Supreme Court
• Parties: Owen Mark SANDERSON et al., Co-Administrators (ESTATE OF William SMITH) v. STEVE SNYDER ENTERPRISES, INC., et al.

Page 389

491 A.2d 389

196 Conn. 134

Owen Mark SANDERSON et al., Co-Administrators (ESTATE OF William SMITH) v. STEVE SNYDER ENTERPRISES, INC., et al.

Supreme Court of Connecticut.

Argued Feb. 8, 1985.

Decided April 30, 1985.

Hubert J. Santos, Hartford, with whom, on the brief, was Christopher F. Droney, Hartford, for appellants (plaintiffs).

John W. Lemega, Hartford, with whom, on the brief, was George D. Royster, Jr., Hartford, for appellees (defendants).

Before ARTHUR H. HEALEY, PARSKEY, SHEA, DANNEHY and SATTER, JJ.

SHEA, Associate Justice.

In this products liability action a verdict was returned for the named defendant manufacturer and judgment was rendered thereon. On appeal, the plaintiffs, co-administrators of the decedent's estate, claim that the judgment should be overturned because the trial court erred (1) in admitting hearsay statements contained in a deposition offered at trial, (2) in excluding evidence of a subsequent design modification in the product, (3) in denying the plaintiffs' motion in limine relating to evidence of the remarriage of the decedent's wife, and (4) in charging the jury on the issue of contributory negligence on the part of the decedent. We find error and remand for a new trial.

In reaching its verdict, the jury could reasonably have found the following facts: On September 17, 1977, between 6 and 6:30 p.m., the decedent, William Smith, and two companions, Joseph Gorski and Eric McLarney, boarded a plane, piloted by William Sabine, at the Johnnycake Airport in Burlington for the purpose of making a parachute jump into a Waterbury stadium during halftime of a football game as part of an Army National Guard jump demonstration. The decedent included as part of his parachute equipment a Sentinel MK 2000 automatic emergency parachute pack release system given to him by his wife as a Christmas present in 1973 and used by the decedent regularly thereafter. The Sentinel MK 2000 is a device that can sense both the altitude of a parachutist and his rate of descent. When the parachutist's rate of descent has not been slowed by the deployment of his main parachute, the Sentinel MK 2000 is designed automatically to deploy the parachutist's reserve chute at a critical altitude, usually 1000 feet above ground level. The device must be calibrated before use to take into account the altitude of the anticipated drop zone.

The decedent and one of his companions, Joseph Gorski, had jumped earlier in the day at a Democratic party picnic in Simsbury. The decedent's reserve parachute was not deployed by the Sentinel MK 2000 during that jump. At the picnic, each jumper consumed a ten ounce beer and also some food. The two then drove to the Johnnycake Airport, stopping along the way while each drank two more cans of beer. The decedent and Gorski, joined by McLarney, were served more beer at the airport restaurant before the pilot arrived. The jumpers removed the side door and rear seat of the airplane to facilitate the jump. They then donned and checked their equipment. There was testimony that the decedent calibrated his Sentinel MK 2000 at this time. The three jumpers boarded the plane and the pilot took off.

When the plane reached an altitude of between 700 and 1700 feet, Gorski heard a sharp popping sound, "like a cap pistol, or a 22," and turned to find the decedent attempting to restrain his reserve parachute, which had deployed. Immediately prior to the popping noise, Sabine, the pilot, had seen the decedent adjusting his Sentinel MK 2000. The Sentinel MK 2000 employs an explosive charge to deploy a reserve parachute. There was uncontroverted evidence that the deployment of a parachute inside an airplane is extremely hazardous. The pilot instructed the decedent to jump from the plane, but the decedent refused. Gorski was attempting either to restrain the reserve parachute or to sever it from the decedent when the decedent was pulled out the open side door of the airplane by his reserve chute. The side of the decedent's face was thrown against the side of the plane as he was pulled out the door. The decedent's body was later recovered from a nearby lake. An autopsy revealed that he had suffered a broken neck, probably when exiting the airplane, which resulted in paralysis and, possibly, loss of consciousness. His death was caused by drowning. The autopsy also revealed that the decedent had .15 mg. per ml. of alcohol in his blood at the time of his death. There was testimony that .10 mg. per ml. is prima facie evidence of intoxication.

The plaintiff co-administrators claimed that the named defendant, Steve Snyder Enterprises, Inc. (hereinafter the defendant), which designed, manufactured and marketed the Sentinel MK 2000, was liable for the death of the decedent upon negligence, implied warranty and strict liability theories. The defendant denied these allegations and proffered the defenses of product misuse, contributory negligence and assumption of risk. The jury found for the defendant.

I

At the trial, the defendant introduced the deposition of the pilot, William Sabine. It was not contested that Sabine was outside the state and not amenable to the subpoena power of the court at the time of trial. ¹ The deposition had been noticed and taken by the plaintiffs, who initially sought to introduce portions of the deposition, but withdrew their offer when the trial court ruled that they could not omit other portions that contained hearsay testimony. The plaintiffs later objected to this testimony when the defendant offered the deposition. ² On appeal, the plaintiffs claim they were harmed by the trial court's failure to sustain their objections to this deposition testimony in which Sabine stated that he had been told by a waitress that the decedent and the other jumpers had been served beer at the Johnnycake Airport restaurant. The trial court recognized the statements as hearsay, but admitted them because they had been elicited at the deposition by the plaintiffs, who, the trial court ruled, could not object to their own evidence. ³

Under Practice Book § 248(2), "objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying." ⁴ At the trial the defendant argued, and the trial court agreed, that because the plaintiffs could not have objected to the answers had they elicited them from the witness at trial, they could not object at trial to the answers they elicited at the deposition. This interpretation of Practice Book § 248(2) misapprehends the function of a discovery deposition in our practice.

Our rules of practice provide guidelines to facilitate the discovery of information relevant to a pending suit. The primary purpose of a deposition taken pursuant to these provisions is discovery. Such depositions must be distinguished from those taken pursuant to General Statutes § 52-156, which codifies the ancient bill in equity to perpetuate testimony. See Petition of Christensen, 25 Conn.Sup. 271, 273, 202 A.2d 834 (1964); 1 Stephenson, Conn.Civ.Proc. § 141(a), pp. 591-92. Evidence may be elicited at a discovery deposition even though "the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Practice Book § 218. Thus the allowable scope of inquiry at a discovery deposition clearly exceeds the boundaries of admissible evidence.

Nevertheless, our rules of practice allow the use of discovery depositions as evidence at trial where the deposed witness is unavailable at that time. See Practice Book § 248. Such use is consistent with the rules developed at common law pertaining to previous testimony, which recognize that the need for the evidence coupled with sufficient assurances of reliability, including the availability of cross-examination, may justify the admission of what otherwise would be inadmissible hearsay. "In each case the controlling test is: Can the witness' knowledge be utilized by other means? If not, the use of the former testimony, other conditions in respect to it being met, is justified in the interest of justice by the necessity of the situation." Atwood v. Atwood, 86 Conn. 579, 583, 86 A. 29 (1913); see State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). It would be anomalous, however, to allow the use of discovery depositions at a trial to impinge upon their discovery function, to which their evidentiary use is merely incidental. Yet, this is precisely the result reached by the lower court in subjecting a party seeking to engage in permitted discovery to the risk that at trial he will not be able to object to anything so discovered. Such a rule would create an irrational restriction on the liberal discovery doctrines we have adopted in this jurisdiction and has no support in policy or precedent. See 1 Stephenson, Conn.Civ.Proc. § 141(g), p. 596.

In fact, the weight of authority is plainly to the contrary. In the venerable case of Hatch v. Brown, 63 Me. 410, 416 (1874), the court articulated the rule that has been consistently followed. "When a party uses a deposition taken by his opponent, but not offered in evidence by him, he makes it his own, and his opponent has the same right of objection to the interrogatories and answers which he would have had if the deposition had been taken by the party offering it; and he is not precluded by the fact that the interrogatories objected to were propounded by himself when the deposition was taken." Accord Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 899 (Iowa 1980); Baltimore & Ohio R. Co. v. Dever, 112 Md. 296, 310-11, 75 A. 352 (1910); McLeod v. Miller & Lux, 40 Nev. 447, 153 P. 566 (1917); Graves v. Boston & Maine Railroad, 84 N.H. 225, 149 A. 70 (1930). In the case before us the deposition was offered by the defendant, the plaintiffs having...