State v. Tippetts-Abbett-McCarthy-Stratton

• Decision Date: 23 June 1987
• Docket Number: CARTHY-STRATTON,KNAPPEN-TIPPETTS-ABBETT-M,13050,TIPPETTS-ABBETT-M,Nos. 13049,s. 13049
• Citation: 204 Conn. 177,527 A.2d 688
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v.cSTATE of Connecticut v.cCARTHY, et al.

Page 688

527 A.2d 688

204 Conn. 177

STATE of Connecticut v. TIPPETTS-ABBETT-McCARTHY-STRATTON

STATE of Connecticut v. KNAPPEN-TIPPETTS-ABBETT-McCARTHY, et al.

Nos. 13049, 13050.

Supreme Court of Connecticut.

Argued May 7, 1987.

Decided June 23, 1987.

Arnold J. Bai, with whom were Garie J. Mulcahey, Bridgeport, Robert J. Morrin, Asst. Atty. Gen., and, on the brief, Joseph I. Lieberman, Atty. Gen., and Arnold K. Shimelman, Asst. Atty. Gen., for appellant (State).

William B. Rush, with whom was Sharon A. Cregeen, Bridgeport, for appellees (defendants in each case).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and SPALLONE, JJ.

PETERS, Chief Justice.

The dispositive issue in these appeals is the propriety of the trial court's refusal to allow the jury to consider whether the defendants were liable to the plaintiff under a theory of absolute public nuisance. The defendants, Tippetts-Abbett-McCarthy-Stratton and Knappen-Tippetts-Abbett-McCarthy, ¹ designed and supervised the construction of the Mianus River bridge (the bridge) on the Connecticut Turnpike in Greenwich. On June 28, 1983, a span of the bridge collapsed into the Mianus River. The plaintiff, the state of Connecticut, brought actions against the defendants seeking damages for expenses it allegedly incurred as a result of the collapse, including, inter alia, the expense of reconstructing the bridge. The cases against the two defendants were consolidated for a jury trial. On August 14, 1986, the jury returned a verdict in the defendants' favor. The plaintiff appealed the judgments in favor of both defendants to the Appellate Court. This court subsequently transferred the appeals to itself. We find no error.

The following facts are undisputed. The defendants designed the bridge and supervised and inspected its construction pursuant to a June 24, 1954 contract with the plaintiff. The plaintiff approved the design of the bridge and accepted the bridge as part of its highway system on June 18, 1959.

The plaintiff's revised complaint, identical in both cases, was in three counts. The first count, sounding in negligence, alleged that the defendants had improperly designed, inspected and supervised construction of the bridge. Specifically, the plaintiff alleged that the defendants had improperly designed the mechanisms that supported and linked the bridge's horizontal spans, and that these design flaws ultimately had led to the collapse of the bridge and the plaintiff's resulting damages. The second count of the complaint alleged that the design and construction of the bridge, for which the defendants were responsible, constituted an absolute public nuisance which had continued unabated until the bridge collapsed. The third count of the complaint sought indemnification from the defendants for claims that the plaintiff had paid to third parties as compensation for deaths and injuries that had occurred as a result of the bridge's collapse.

Trial commenced before a jury of six on July 8, 1986. On August 13, 1986, at the conclusion of all of the testimony, the trial court ordered the plaintiff's second count, alleging absolute public nuisance, to be stricken. The plaintiff later took exception to the trial court's failure to charge the jury on the nuisance count.

On August 14, 1986, the jury returned a verdict in the defendants' favor on the two remaining counts of the plaintiff's complaint. In addition, the jury answered several interrogatories submitted to it by the trial court. Interrogatory question one on the negligence count read: "Did the plaintiff, State of Connecticut, prove that the defendants were negligent and that such negligence was the proximate cause of the plaintiff's injuries?" The jury's answer was "No." Interrogatory question two on the indemnification count read: "Did the plaintiff, State of Connecticut, prove that the injuries to third parties were proximately caused by the defendants' performance of the work covered by the [indemnification] agreement [in the 1954 contract]?" The jury's answer was "No." ²

On August 18, 1986, the plaintiff filed a motion to set the verdict aside, claiming, inter alia, that the court had erred in failing to charge the jury on the second count of the plaintiff's complaint alleging absolute public nuisance. ³ In a September 3, 1986 memorandum denying the motion to set aside the verdict, the trial court justified its refusal to submit the nuisance claim to the jury on two grounds: (1) the defendants had not used property in an unlawful or unreasonable manner, as required to establish nuisance liability; and (2) the plaintiff, the owner of the bridge, having at most suffered a "private proprietary injury" as a result of the collapse, had not exercised a public right and thus could not make out a claim for public nuisance.

On appeal, the plaintiff reiterates its claim that the trial court erred in refusing to submit the nuisance claim to the jury. Essentially, the plaintiff argues that it produced sufficient evidence at trial to permit the jury reasonably to find that the bridge, as designed and engineered by the defendants, constituted an absolute public nuisance for which the defendants could be held liable. In response, the defendants claim that the trial court acted properly because: (1) the plaintiff failed to prove the elements of nuisance; (2) the defendants could not be held liable for nuisance in the absence of a showing of an unreasonable or unlawful use of land on their part; (3) the defendants could not be held liable for nuisance when they did not create or maintain the bridge, which was the source of the claimed nuisance; and (4) the plaintiff could not recover for public nuisance because it had not established its exercise of a public right.

Apart from these arguments about the parameters of the law of nuisance, the defendants also claim that the plaintiff's appeals are moot. This argument relies on the inferences to be drawn from the findings of the jury, evidenced by its responses to the interrogatories, that, according to the defendants, definitively establish that "the collapse was not caused by the negligence of the defendants and that the damages and injuries claimed by the [plaintiff] were not 'proximately caused by the defendants' performance of the work covered by the agreement.' "

If this claim were truly one of mootness, we would be obligated to consider its validity before turning to the merits of the remaining issues concerning the law of nuisance. It is familiar learning that mootness is jurisdictional. Hartford Principals' & Supervisors' Assn. v. Shedd, 202 Conn. 492, 496-97, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). The defendants' label of mootness does not, however, characterize their claim appropriately. In reality, they are raising an argument of collateral estoppel: that is, that the plaintiff is precluded from challenging the jury's disposition of an essential question of fact, namely proximate causation, in any subsequent litigation. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 205, 520 A.2d 208 (1987); see generally State v. Fritz, 204 Conn. 156, 527 A.2d 156 (1987). The term "mootness," by contrast, typically applies to a situation where, during the pendency of an appeal, events have occurred that make an appeals court incapable of granting practical relief through a disposition on the merits. See State v. Hope, 203 Conn. 420, 424, 524 A.2d 1148 (1987); Hartford Principals' & Supervisors' Assn. v. Shedd, supra, 202 Conn. at 496-97, 522 A.2d 264; Shays v. Local Grievance Committee, supra, 197 Conn. at 571-72, 499 A.2d 1158. As a claim of collateral estoppel, the defendants' argument would require us to undertake a close examination of the record to discern what issues, if any, have been determined in prior litigation and thus may not be relitigated. ⁴ See generally Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); State v. Ellis, 197 Conn. 436, 467-70, 497 A.2d 974 (1985). In the circumstances of this case, we have decided that it is preferable for us to address the merits of the nuisance claim directly.

On the merits, we agree with the trial court, and the defendants, that the count of the plaintiff's complaint alleging absolute public nuisance was properly withdrawn from the jury because the defendants did not use property in an unreasonable or unlawful manner, and thus could not, as a matter of law, be found liable on a nuisance theory. Accordingly, we need not address the other issues concerning the law of public nuisance raised by the parties in these appeals.

As a threshold matter, we agree with the plaintiff that the trial court's withdrawal of the nuisance claim from the jury was tantamount to a directed verdict on that issue. For this reason, in reviewing the court's refusal to charge the jury on the nuisance claim, and its subsequent denial of the plaintiff's motion to set aside the verdict based on that refusal, " 'this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff.' " Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

Our prior decisions have established that in order to prevail on a claim of nuisance, a plaintiff must prove that: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages." Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972); Heilig v. LeQuire, 4 Conn.App. 125, 127, 492 A.2d 542 (1985). In this case, where absolute public nuisance is...