Sullivan v. Metro-North Commuter R. Co.

• Decision Date: 16 June 2009
• Docket Number: No. 17739.,17739.
• Citation: 292 Conn. 150,971 A.2d 676
• Parties: James E. SULLIVAN, Administrator (Estate of James P. Sullivan) v. METRO-NORTH COMMUTER RAILROAD COMPANY et al.
• Court: Connecticut Supreme Court

971 A.2d 676

292 Conn. 150

James E. SULLIVAN, Administrator (Estate of James P. Sullivan) v. METRO-NORTH COMMUTER RAILROAD COMPANY et al.

No. 17739.

Supreme Court of Connecticut.

Argued December 4, 2008.

Decided June 16, 2009.

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellant (plaintiff).

Robert C.E. Laney, with whom, on the brief, were Charles A. Deluca and Sarah F. DePanfilis, Stamford, for the appellee (named defendant).

Ann Walsh Henderson, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Claudia A. Baio and Neha S. Parikh, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

This certified appeal¹ arises from an action brought by the plaintiff, James E. Sullivan, as administrator of the estate of his deceased son, James P. Sullivan (decedent), against the named defendant,² Metro-North Commuter Railroad Company, for the wrongful death of the decedent resulting from the defendant's alleged negligence in failing to provide and maintain adequate security at one of its train stations. On appeal, the plaintiff claims that the Appellate Court improperly affirmed the judgment of the trial court, which had rendered judgment in accordance with the jury's verdict in favor of the defendant. Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 901 A.2d 1258 (2006). Specifically, the plaintiff claims that the Appellate Court improperly concluded that: (1) the trial court properly excluded the testimony of the plaintiff's expert witness; and (2) the trial court properly instructed the jury on the superseding cause doctrine. We agree with the plaintiff that the Appellate Court improperly affirmed the trial court's exclusion of testimony by the plaintiff's expert witness, and that such preclusion was harmful. Accordingly, we reverse the judgment of the Appellate Court and remand the case for a new trial. We also address the merits of the plaintiff's second claim because it is likely to arise on retrial. See Burns v. Hanson, 249 Conn. 809, 830, 734 A.2d 964 (1999).

The Appellate Court opinion sets forth the procedural history of this case and the following facts, which the jury reasonably could have found. "On [an] evening [in] August [of] 1992, the decedent was shot and killed by Larone Hines in a stairway leading up from Monroe Street to the westbound platform of the South Norwalk train station. The station is located in a relatively high crime area of Norwalk. The city of Norwalk owns the two railroad station buildings at the South Norwalk station, a parking lot and an underground tunnel connecting the railroad station buildings. The state owns the railroad platforms and stairways leading up to the platforms from Monroe Street, including the stairway where the incident took place. The department of transportation has a service agreement with the Metropolitan Transportation Authority, the parent organization of the defendant, and the defendant for commuter rail service in Connecticut. Since 1983, the defendant has provided this rail service and is responsible for its daily operations.

"On the night of the incident, the decedent was a passenger on one of the defendant's trains from West-port to Norwalk. He arrived at the station at approximately 10:39 p.m. After frequenting a few establishments in Norwalk, the decedent had a brief encounter with Hines and a group of men outside a local nightclub on Monroe Street. The encounter became increasingly hostile. When the decedent walked away, Hines and the group of men followed him underneath a railroad trestle where they again exchanged angry words. The decedent ran from the group and made his way to the stairway underneath the trestle where a physical altercation ensued, and then Hines shot him.

"The plaintiff filed a complaint alleging that the death of his decedent was a result of the defendant's failure to maintain and to provide adequate security at the station. The defendant raised several special defenses, including that the decedent's death was a result of the `intentional and/or criminal actions of a third person' that superseded any possible negligence on the part of the defendant.

"The jury returned a verdict finding that the decedent was an invitee of the defendant and that his death was not foreseeable to the defendant. The court rendered judgment in favor of the defendant in accordance with the verdict." Sullivan v. Metro-North Commuter Railroad Co., supra, 96 Conn.App. at 744-45, 901 A.2d 1258. The plaintiff thereafter appealed from the trial court judgment to the Appellate Court, the majority of which affirmed the judgment of the trial court. Id., at 743, 901 A.2d 1258. The majority of the Appellate Court concluded that the trial court did not abuse its discretion when it precluded the testimony of the plaintiff's expert witness and that the trial court properly instructed the jury on the superseding cause doctrine because that doctrine is still valid in Connecticut.³

Id., at 745, 751, 901 A.2d 1258. This certified appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff first claims that the Appellate Court improperly affirmed the trial court's exclusion of the testimony of his expert witness. Specifically, the plaintiff contends that the trial court abused its discretion when it precluded the testimony of John W. Kennish, a premises security expert, on the ground that he was not qualified to render properly supported expert testimony on railroad security, the precise issue before the court. In response, the defendant claims that the trial court properly acted within its broad discretion when it precluded the testimony of Kennish because it correctly determined that he was not qualified as an expert in railroad security. We agree with the plaintiff.

The following additional facts and procedural history are relevant to our resolution of this claim. Before trial the plaintiff disclosed Kennish as his expert in premises security. Kennish has extensive education, training and experience in the area of premises security. He has two master's degrees, one in industrial security, and one in industrial safety, as well as a bachelor of science degree in criminal justice and sociology. He completed safety training at two different police academies, served as a police officer for a total of eight years in two different cities, and worked as a security specialist and director of security for two financial institutions for a total of fourteen years. Kennish has authored numerous publications concerning premises security issues, including, but not limited to, bank security, robbery prevention, employee crime, and general premises security litigation and advisory measures. He also has rendered advice and testified in a number of different premises security cases.

In his supplemental disclosure of this expert witness, the plaintiff asserted that in light of these qualifications, Kennish was expected to testify as to the lack of security at the South Norwalk train station, as well as to "those measures that the defendant could have and should have taken to protect the public...." The plaintiff also intended to have Kennish testify that the fatal attack against the decedent was foreseeable given the overall lack of security at the train station as well as the high crime rate in the surrounding area. The defendant thereafter moved to preclude Kennish's testimony, claiming that Kennish was unqualified to render an expert opinion on the security of a railroad station. The trial court granted the defendant's motion, concluding that the matter specifically in issue was one of railroad security and not premises security. Because it found that Kennish "had no railroad experience, no involvement in railroad security, [and] that he was not a railroad expert, a railroad police procedure expert [or] a railroad police security expert," the trial court precluded Kennish's testimony.

On appeal, the majority of the Appellate Court concluded that the trial court properly "determined that Kennish lacked the necessary qualifications to render an expert opinion for which his testimony was offered." Sullivan v. Metro-North Commuter Railroad Co., supra, 96 Conn.App. at 747, 901 A.2d 1258. The court identified the specific issue before the trial court as being whether the defendant negligently had failed to provide adequate railroad security, and thus concluded that because Kennish's expertise was in the field of premises security, and not railroad security, the trial court properly precluded his testimony. Id. The Appellate Court relied primarily on Kennish's testimony at his deposition, which revealed that he had police and premises security experience, but no experience, training or knowledge of railroad security. The court therefore concluded that the trial court had not abused its discretion in precluding Kennish's testimony.

We begin our review of this issue by setting forth the well established standard of review regarding a trial court's ruling on the admissibility of expert testimony. "[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 514-15, 853 A.2d 460 (2004); see also State v. Griffin, 273 Conn. 266, 274-75, 869 A.2d 640 (2005); Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002); Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 371, 889 A.2d 829 (2006). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) New Hartford v. Connecticut ...