Szachon v. Town of Windsor, 10428

• Decision Date: 29 December 1992
• Docket Number: No. 10428,10428
• Citation: 618 A.2d 74,29 Conn.App. 791
• Court: Connecticut Court of Appeals
• Parties: Joseph SZACHON, Jr. v. TOWN OF WINDSOR et al.

Page 74

618 A.2d 74

29 Conn.App. 791

Joseph SZACHON, Jr. v. TOWN OF WINDSOR et al.

No. 10428.

Appellate Court of Connecticut.

Argued Oct. 5, 1992.

Decided Dec. 29, 1992.

Neil A. McPhail, with whom, on the brief, was Philip K. Meister, Hartford, for appellant (plaintiff).

John W. Bradley, Jr., with whom, on the brief, was John S. Rosania, Bloomfield, for appellee (named defendant).

Andrew J. O'Keefe, with whom were Peter K. O'Keefe and, on the brief, Maureen Sullivan Dinnan, Hartford, for appellee (defendant Central Paving Co., Inc.).

Before FOTI, LAVERY and FREDERICK A. FREEDMAN, JJ.

FOTI, Judge.

The plaintiff appeals from a judgment for the defendants, rendered after a jury trial, in an action for personal injuries. The plaintiff brought this action against the defendant town of Windsor in two counts, the first under the defective highway statute, General Statutes § 13a-149, and the second under a common law absolute nuisance theory. A third count was directed against the defendant Central Paving Company, Inc. (Central Paving), and claimed negligence. The plaintiff claims that the trial court (1) abused its discretion in admitting into evidence certain testimony and documents related to the plaintiff's blood and urine tests, and (2) improperly instructed the jury on contributory negligence. The defendants have raised the additional issue of whether the general verdict rule precludes our review of the plaintiff's claims. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 28, 1985, at approximately 10 p.m., the plaintiff was involved in a motorcycle accident on Prospect Hill Road near its intersection with Day Hill Road in Windsor. There were no witnesses to the accident, which did not involve any other vehicles. The area was under reconstruction at the time, with the work being done by Central Paving. The plaintiff alleged that the accident was caused by a "depressed area or a trench or indentation" filled with sand, gravel and stone across the middle of Prospect Hill Road. The jury returned general verdicts for the defendants on each of the three counts separately.

As a preliminary matter we first address the defendants' claim that the general verdict rule applies and, therefore, that any error by the trial court in admitting evidence or instructing the jury should be considered harmless. "The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964). A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts. Ziman v. Whitley, 110 Conn. 108, 113-15, 147 A. 370 (1929)." Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202-203, 520 A.2d 208 (1987).

"The application of the general verdict rule ... does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial." Id. at 203, 520 A.2d 208. "[I]t is the distinctness of the defenses raised, and not the form of their pleading, that is the decisive test governing the applicability of the general verdict rule. Meglio v. Comeau, 137 Conn. 551, 553-54, 79 A.2d 187 (1951). 'If the defenses are clearly distinct, the fact that one has not been specially pleaded ... will not prevent the application of the rule.' Royal Homes, Inc. v. Dalene Hardwood Flooring Co., supra [151 Conn. at], 466 ...." (Citations omitted.) Id., 202 Conn. at 203-204, 520 A.2d 208.

The plaintiff's third count against Central Paving alleged negligence. Central Paving filed a special defense of contributory negligence. At trial, the plaintiff requested that eighteen interrogatories be submitted to the jury. That request was denied by the court, which found the interrogatories to be too numerous and confusing. "[I]nterrogatories are ordinarily submitted at the discretion of the trial court"; Burns v. Koellmer, 11 Conn.App. 375, 389, 527 A.2d 1210 (1987); but the plaintiff may receive protection against the application of the general verdict rule by the use of properly framed interrogatories. Hammer v. Mount Sinai Hospital, 25 Conn.App. 702, 708, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). "A court has a duty to grant a ... proper request for interrogatories when there are two or more causes of action." (Emphasis added.) Id.

The plaintiff argues that under Pedersen v. Vahidy, 209 Conn. 510, 552 A.2d 419 (1989), a party's merely requesting the court to submit interrogatories to the jury will prevent application of the general verdict rule. We do not agree with this reading of the case. In Pedersen, our Supreme Court stated that "where the court has denied a proper request for interrogatories ... the general verdict rule does not apply so as to preclude appellate review of the error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed." (Emphasis added.) Id. at 514, 552 A.2d 419. In Pedersen, the trial court had denied the defendant's request for submission of interrogatories, the jury returned a general verdict for the plaintiff, and the trial court later denied the defendant's motion to set aside the verdict. On appeal, the defendant's arguments were directed at the trial court's instructions to the jury and its failure to grant a mistrial. The plaintiff countered with two procedural arguments: first, that the defendant's submission of the interrogatories had been untimely; and second, that, because the defendant had not relied on the trial court's refusal to submit the interrogatories as a ground for his motion to set aside the verdict, he was precluded on appeal from relying on this refusal as a reason for not applying the general verdict rule.

The defendant in Pedersen did not appeal from the trial court's denial of its request to submit interrogatories to the jury. Id. at 517, 552 A.2d 419. Nor did the plaintiff "on appeal maintain that submission of the interrogatories would have been inappropriate...." Id. at 514, 552 A.2d 419. The court therefore never squarely addressed whether the defendant had made a "proper request for interrogatories" that was then denied by the trial court. Moreover, the court concluded that the general verdict rule was inapplicable, not because the defendant had requested the submission of interrogatories to the jury, but because the defendant had "made every reasonable effort to protect himself from the consequences of such a verdict" and could not "at the time he prepared his motion to set aside the verdict ... anticipate that the general verdict rule would be invoked...." Id. at 517, 552 A.2d 419.

Here, the trial court refused to submit the requested interrogatories because they were not properly framed. Under Pedersen, the plaintiff was not required to include the court's refusal as an independent ground for seeking a new trial. On appeal, however, he must make such a claim in order to obtain appellate review of the appropriateness of those interrogatories, so that this court may determine whether the trial court properly exercised its discretion. The plaintiff's failure to do so deprives us of the benefit of briefs and oral arguments by both parties regarding the appropriateness of the requested interrogatories. We cannot determine whether the court denied a "proper request for interrogatories," which denial would preclude application of the general verdict rule and permit "appellate review of error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed." Id. at 514, 552 A.2d 419.

Since the plaintiff has not, on appeal, challenged the trial court's denial of his request for submission of interrogatories to the jury, he cannot now claim that the trial court abused its discretion when it determined that the interrogatories were not properly drawn. "Every reasonable presumption will be made in favor of the trial court's proper exercise of its discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985)." State v. Graham, 21 Conn.App. 688, 703, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990); Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). We must presume that in rendering a general verdict the jury found every issue in favor of the defendant Central Paving. Stone v. Bastarache, supra, 188 Conn. at 204, 449 A.2d 142. The defendant's denial of negligence and its allegation of contributory negligence constituted two separate and distinct defenses, either of which would support the jury's general verdict. Spitzer v. Haims & Co., 217 Conn. 532, 551-52, 587 A.2d 105 (1991). Therefore, irrespective of any finding of the jury regarding the plaintiff's contributory negligence, we may presume that the plaintiff did not sustain his burden of proof on his claim of negligence. Any possible error in the trial court's instructions to the jury on Central Paving's special defense of contributory negligence was harmless. Id. at 552-53, 587 A.2d 105.

The defendant town also claims application of the general verdict rule. The plaintiff's first count alleged a breach of the town's statutory duty under General Statutes §...