Sequenzia v. Guerrieri Masonry, Inc., No. 29308.

• Citation: 113 Conn.App. 448,967 A.2d 508
• Decision Date: 31 March 2009
• Docket Number: No. 29308.
• Parties: John SEQUENZIA et al. v. GUERRIERI MASONRY, INC., et al.
• Court: Appellate Court of Connecticut

967 A.2d 508

113 Conn.App. 448

John SEQUENZIA et al. v. GUERRIERI MASONRY, INC., et al.

No. 29308.

Appellate Court of Connecticut.

Argued October 22, 2008.

Decided March 31, 2009.

William J. Melley III, Hartford, for the appellant (named defendant).

Gregory M. Cantwell, for the appellee (named plaintiff).

FLYNN, C.J., and DiPENTIMA and DUPONT, Js.

FLYNN, C.J.

The defendant Guerrieri Masonry, Inc., appeals from the judgment of the trial court, following a jury verdict, in favor of the plaintiff John Sequenzia.¹ Although the defendant's brief primarily focuses on the findings of the court as set forth in the court's postverdict memorandum of decision on the defendant's post-trial motions, rather than focusing on the merits of the defendant's motion for judgment notwithstanding the verdict and the defendant's motion for a new trial, and is inadequate in that regard, we do agree with its claim that it was entitled to a new trial after the court charged the jury on a specification of common-law negligence for which there had been no evidence. Accordingly, we reverse the judgment of the trial court.

The following facts reasonably could have been found by the jury. The town of Glastonbury contracted with Hodess Building Company (Hodess) to construct an addition to an assisted living building. Hodess, which acted as the general contractor for the job, entered into a subcontract with the defendant to perform masonry work on the site. On the morning of November 14, 2003, the plaintiff arrived on site to deliver a truckload of bricks. It was a windy day. A Hodess employee pointed to the area where the plaintiff should deliver the bricks, and the plaintiff moved his truck to that area. Shortly thereafter, Corrado Guerrieri, the owner of the defendant, arrived on site and, seeing that there were power lines nearby, suggested that the plaintiff move his truck because it was too close to the power lines. Despite knowing that there was a sign posted on his truck that stated "look up keep boom 15 feet from power lines," the plaintiff responded that he could make the delivery from that location. Using a boom attached to the truck, which was operated through a control box, the plaintiff began to remove the pallets of bricks from the truck, but, during the process, the boom came into contact with the power lines, shocking him and causing very serious injuries. Guerrieri immediately grabbed the control box and pulled it from the plaintiff's hand. There was evidence that the plaintiff's injuries were painful, disfiguring and disabling.

The plaintiff brought this action against Hodess and the defendant. Prior to trial, Hodess and the plaintiff reached a settlement, and the plaintiff withdrew its claims against Hodess. The case between the plaintiff and the defendant proceeded to be tried on a single count of common-law negligence. The court charged the jury on two specifications of negligence, as alleged in the complaint, one of which was a failure to warn.² The jury returned a verdict in favor of the plaintiff, finding the defendant to be 30 percent negligent, Hodess 25 percent negligent and the plaintiff 45 percent negligent.³ Following the jury's verdict, the defendant renewed its earlier motion for a directed verdict and filed motions for judgment notwithstanding the verdict and for a new trial, arguing, in part, that the court improperly had charged the jury on the failure to warn specification of common-law negligence and that there was no evidence to support such a charge.⁴ The motions were denied. After reviewing the record and the briefs in this case, we have determined, in light of what has been raised before us on appeal, that the dispositive issue is whether the defendant was entitled to a new trial after the court conceded that it improperly had charged the jury on a specification of negligence for which there was no evidence. Agreeing with the court that there was no evidence to support the charge, we conclude that the defendant is entitled to a new trial.

"[O]ur standard of review of the trial court's denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion.... As a reviewing court considering the trial court's decision granting or denying a motion for a new trial, we must be mindful of the trial judge's superior opportunity to assess the proceedings over which he or she ... personally [has] presided." (Citation omitted; internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn.App. 184, 194-95, 609 A.2d 1066 (1992).

In the defendant's motion for a new trial, it claimed, among other things, that the court improperly had charged the jury on the failure to warn specification of negligence. The defendant argued in relevant part: "The plaintiff testified at length regarding his knowledge of the existence of the power lines near the site where he was to work. The plaintiff knew that striking the power lines with his truck would cause severe injury.... It is abundantly clear that the plaintiff knew and appreciated the danger. Where the plaintiff's own testimony established his awareness of the precise danger that caused his injuries and his testimony was uncontroverted, the court erred in submitting to the jury the issue of whether the defendant had a duty to warn the plaintiff." In its postverdict memorandum of decision, the court explained: "Regarding the failure of the court to exclude from its charge to the jury the issue of the duty to warn ... the court did err in charging the jury regarding this issue because there was no evidence to support such a claim. However, since this was not the sole basis of the plaintiff's claim, and the court charged on alternative grounds on which the defendant could be held liable, this does not warrant a new trial." We conclude that the court improperly denied the defendant's motion for a new trial on this ground.

The plaintiff's complaint sounded in one cause of action, common-law negligence. Although there were submitted to the jury two different specifications of negligent conduct, both of these were in support of that single cause of action. See Green v. H.N.S. Management Co., 91 Conn.App. 751, 764, 881 A.2d 1072 (2005) (where more than one specification of negligence pleaded, defendant still entitled to new trial where court charged on specification not supported by evidence), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).

In his complaint, the plaintiff had alleged, in part, that the defendant "had control and knowledge of the area of the site where the [p]laintiff was injured yet failed to warn the [p]laintiff of the danger of using a boom under the conditions then and there existing at the site...." Although the plaintiff's memory of the day of his accident was impaired, there were certain things that he did remember. The plaintiff testified at trial that on the day of the accident, he waited outside of the gate for someone to let him onto the site and that it was a windy day. He also remembered that after getting onto the site, he waited for Guerrieri to arrive. The plaintiff testified that he was aware of the sticker on his vehicle, which stated that the boom must be kept fifteen feet from power lines, but that he routinely made deliveries within fifteen feet of power lines because the wires "are right there" at the work sites. He stated that it was his responsibility to park the truck and to offload the product and that he had nearly twenty years of experience, making as many as twelve deliveries in one day. He averaged approximately three to five deliveries on a normal day, however, which meant that he made 1000 or more deliveries each year for almost twenty years using this same vehicle or a vehicle very similar to it. He further testified that he had a great deal of experience with the vehicle that he operated on the day of the accident, and, when asked by defense counsel: "So when it came time to operate — not only the vehicle on the roadway, but the vehicle in terms of what it was designed to do, that is unload bricks at construction sites, is it fair to say that you had a great deal of knowledge, experience and...