Scanlon v. Connecticut Light & Power Co.

• Decision Date: 16 October 2001
• Docket Number: (SC 16466)
• Citation: 258 Conn. 436,782 A.2d 87
• Court: Connecticut Supreme Court
• Parties: LAURENCE SCANLON ET AL. v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.

258 Conn. 436

782 A.2d 87

LAURENCE SCANLON ET AL. v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.

(SC 16466)

Supreme Court of Connecticut.

Argued March 21, 2001.

Officially released October 16, 2001.

Borden, Norcott, Katz, Palmer and Zarella, Js. Brian T. Henebry, with whom, on the brief, was Richard L. Street, for the appellant (named defendant).

Kathryn Calibey, with whom were Andrew Groher and Paul M. Iannaccone, for the appellees (plaintiffs).

Opinion

PALMER, J.

This appeal arises out of an action brought by the plaintiffs, Laurence Scanlon and Louise Scanlon, against the named defendant, Connecticut Light and Power Company (defendant), among others,¹ alleging that the defendant's negligent installation and maintenance of certain electrical equipment caused harm to the plaintiffs' dairy herd, thereby causing economic loss to the plaintiffs' dairy business and severe emotional distress to the plaintiffs themselves. A jury returned a verdict in favor of the plaintiffs and awarded them $601,000 in economic damages for their business losses and $300,000 in noneconomic damages for their emotional distress.

On appeal,² the defendant claims that the trial court improperly instructed the jury on the plaintiffs' negligent infliction of emotional distress claim. The defendant further contends that it is entitled to a new trial on that claim and on the plaintiffs' claim for economic damages arising from the business losses that they had sustained as a result of the defendant's negligence. We agree with the defendant that the trial court improperly instructed the jury on the plaintiffs' emotional distress claim and, further, that that impropriety requires a new trial on that claim. We also conclude, however, that the trial court's instructional error did not affect the jury's verdict on the plaintiffs' claim for economic damages and, therefore, we affirm the judgment of the trial court with respect to that claim.

The jury reasonably could have found the following facts. The plaintiffs began operating a dairy farm in Lebanon in 1976. At that time, the plaintiffs had approximately seventy dairy cows. In 1983 or early 1984, there was an increase in the incidence of infection and sickness among the cows, and the cows also started to exhibit unusual behavior, such as drinking out of mud puddles and drinking one another's urine. At about the same time, the plaintiffs found it increasingly difficult to milk the cows due to their odd behavior and reluctance to eat grain. Consequently, milk production on the plaintiffs' farm decreased significantly.

These problems continued through the early 1990s. In December, 1992, an expert hired by the plaintiffs discovered that stray voltage³ from the defendant's equipment was being released onto the farm. The plaintiffs informed the defendant that, in their view, the stray voltage was the cause of the difficulties that they had been experiencing with their herd. The defendant thereupon made some modifications to its equipment that temporarily corrected the stray voltage problem. The herd's milk production increased dramatically after these modifications were made.

The increase in productivity was temporary, however, and the health and productivity of the cows again began to deteriorate. This deterioration continued until 1994, when the defendant installed additional equipment to control permanently the stray voltage. The cows' behavior, productivity and health all improved markedly after the defendant had installed this equipment. By that time, however, the herd had been so badly damaged by the stray voltage that the plaintiffs found it necessary to replace the herd.

The plaintiffs testified that their inability, over many years, to determine the cause of their cows' bizarre behavior and chronic ailments, along with the consequent damage to their business, caused the plaintiffs serious emotional distress and severely strained their marriage.⁴ As the problems associated with the farm mounted, so, too, did the tension between the plaintiffs. Indeed, the plaintiffs' emotional difficulties, which they attributed to the deterioration of their livestock and resulting damage to their business, caused the plaintiffs to seek marriage counseling and also resulted in a brief period of separation.⁵ The tension between the plaintiffs was greatly eased, however, once they identified the cause of their cows' problems.

The plaintiffs commenced this action against the defendant, claiming that the defendant's negligence in installing and maintaining its equipment resulted in the release of stray voltage onto the plaintiffs' farm, thereby causing serious harm to the plaintiffs' cows and causing the plaintiffs to suffer both economic and noneconomic damages.⁶ The plaintiffs' claim for economic damages included, inter alia, lost income resulting from diminished milk production, the loss of livestock and veterinary costs. The plaintiffs sought noneconomic damages for the "severe psychological distress and emotional trauma" that they allegedly had suffered as a result of the defendant's negligence.⁷

The jury returned a verdict awarding the plaintiffs $601,000 in economic damages for the business losses that they had sustained as a consequence of the defendant's negligence. The jury also awarded the plaintiffs $300,000 in noneconomic damages on their claim of negligent infliction of emotional distress.⁸ The defendant subsequently filed motions to set aside the verdict and for remittitur only with respect to the jury's award of noneconomic damages for the plaintiffs' negligent infliction of emotional distress claim. The trial court denied those motions and rendered judgment in accordance with the jury's verdict, from which the defendant appealed.

On appeal, the defendant claims, inter alia, that: (1) the trial court improperly instructed the jury regarding the tort of negligent infliction of emotional distress; and (2) that instructional impropriety was harmful, thereby entitling the defendant to a new trial on that claim and on the plaintiffs' claim that the defendant's negligence had caused economic harm to the plaintiffs' dairy business.⁹ We conclude that the defendant is entitled to a new trial, limited, however, to the plaintiffs' claim of negligent infliction of emotional distress.¹⁰

I

The defendant contends that the trial court improperly instructed the jury on the plaintiffs' claim of negligent infliction of emotional distress. We agree.¹¹

The following additional facts are necessary to our determination of this issue. Prior to the conclusion of the trial, the defendant submitted a request for an instruction that the plaintiffs could not recover on their claim of negligent infliction of emotional distress unless "[the defendant] or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress, and, from the facts known to it or its agents, knew or should have realized that this emotional distress, if caused, might result in illness or bodily harm."¹² Although the trial court instructed the jury generally with respect to damages awarded in connection with emotional distress claims,¹³ the court did not include the language that the defendant requested. Moreover, the court did not otherwise apprise the jury that the plaintiffs were not entitled to damages for emotional distress unless the plaintiffs established that the defendant knew or should have known that its conduct gave rise to an unreasonable risk of causing emotional distress that might result in illness or bodily harm.¹⁴

Before addressing the defendant's claim of instructional impropriety, we set forth the standards governing our review of that claim. "A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate statement of the law must be given." Wagner v. Clark Equipment Co., 243 Conn. 168, 187, 700 A.2d 38 (1997). However, "[i]nstructions to the jury need not be in the precise language of a request." (Internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 132, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed.2d 225 (1988). Moreover, "jury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge.... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict.... The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

With these principles in mind, we turn to the merits of the defendant's claim. In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), we held that, in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Id., 345. We repeatedly have endorsed this requirement of foreseeability. E.g., Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 655 (1997); Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995); Kilduff v. Adams, Inc., 219 Conn. 314, 325, 593 A.2d 478 (1991); Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988); Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986). As we previously have observed, "[t]his condition differs from the standard foreseeability of the risk of harm requirement for negligence...