Vichas v. Heckman, HHDCV146052317S
| Decision Date | 18 September 2019 |
| Docket Number | HHDCV146052317S |
| Court | Connecticut Superior Court |
| Parties | Richard VICHAS v. Timothy HECKMAN et al. |
UNPUBLISHED OPINION
Before the court are several post-trial motions. Defendant T&T Landscaping, LLC (T&T) moves for judgment notwithstanding the verdict, to set aside the verdict, and for a new trial. T&T also moves for a remittitur of the $1, 851, 075.00 jury verdict. Plaintiff Richard Vichas objects to T&T’s motions. For his part, Mr. Vichas asks the court to approve his bill of costs and moves for entry of judgment. T&T objects to Mr Vichas’ motions.
For the reasons set for below, the court denies T&T’s motions for judgment notwithstanding the verdict, to set aside the verdict, and for a new trial. The court grants in part T&T’s motion for remittitur and enters judgment in favor of Mr Vichas in the amount of $1, 843, 335.13. The court grants Mr Vichas’ bill of costs in the amount of $22, 301.42.
This case was filed on July 14, 2014. After motion practice and numerous trial continuances, a trial was finally held from October 30 through November 8, 2018. The facts were hotly contested. Each side presented evidence and testimony that was frequently in direct conflict with the evidence and testimony presented by the opposing side. On critical factual issues, witnesses testified that certain events or conversations took place, while other witnesses flatly denied any such events or conversations ever occurred. This was particularly true on the central issue in this case- the parties’ knowledge of the presence of lead paint on defendant Timothy Heckman’s house.[1] The parties filed more than 20 written motions in limine during trial. The jury heard from 9 witnesses, reviewed 80 exhibits, and deliberated for a day and a half. On November 8, 2018, the jury found by a preponderance of the evidence that Mr. Vichas had proven his claim of intentional tort against T&T and awarded total damages in the amount of $1, 851, 075.00.[2] It was an attentive jury and a well tried case on all sides.
As the trier of fact, it is for the jury to weigh the evidence and determine the credibility of witnesses. Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). It is the exclusive province of the jury to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. Palkimas v. Fernandez, 159 Conn.App. 129, 133, 122 A.3d 704 (2015). In deciding the instant post-trial motions, the court’s role is to view the evidence offered at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534 (1999). The trial court does not sit as a seventh juror, but should decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. Id. With these principles in mind, the court concludes that the jury could have reasonably found the following facts from the evidence presented at trial.
At the time of trial, Mr. Vichas was 54 years old. He is an experienced painter. Mr. Vichas is trained as a certified "lead renovator," which, generally, and as relevant to this case, means that Mr. Vichas has been trained on how to safely repaint houses that already contain lead paint. Mr. Vichas is not a certified "lead remediator," which, generally, and as relevant to this case, means someone who is trained on how to safely remove lead paint. Mr. Vichas is well aware of the health dangers of lead paint. The fact that lead paint is dangerous to human health and that special precautions must be taken when dealing with lead paint is common knowledge among painters and in the painting industry. The use of lead paint was banned in the 1970s because of the health risks associated with lead paint and lead poisoning. Prior to the 1970s, the use of lead paint was common and lead paint is still commonly found in homes built before the 1970s.
From 1984-1991, Mr. Vichas served in the United States Army, achieving the rank of corporal. While in the Army, Mr. Vichas was responsible for the storage and issuance of weapons to soldiers in his unit, among other duties. Mr. Vichas was awarded an "Iron Man Award" for his physical fitness in the Army and was honorably discharged.
In 2011, Mr. Vichas applied for a painting job with T&T and was hired. Mr. Vichas listed his certification as a "lead renovator" on his application to T&T. T&T is a business of approximately 60 employees. T&T is owned by David Tremblay and, during the relevant time period, had gross revenues of approximately $4-5 million. Mr. Tremblay also owns a construction company. David Thibodeau is the Operations/General Manager of T&T and is Mr. Tremblay’s second in command. T&T mainly does landscaping and grounds maintenance work for commercial clients, but it also does interior painting at apartment complexes. In an effort to expand the painting portion of its business, T&T hired Mr. Vichas. Despite somewhat limited experience with the painting business, both Mr. Tremblay and Mr. Thibodeau[3] were aware of the health dangers posed by lead paint.
Mr. Heckman’s home is located on Worthington Drive in Berlin, Connecticut and is a large, three-story, Victorian house. Mr. Beckman’s home was originally constructed in 1895 and has many of the architectural details, intricate woodwork, and broad front porch common to Victorian homes. Mr. Heckman’s home is located in a historic district which requires Mr. Heckman to maintain the house’s historic appearance. The local historical society president is a neighbor of Mr. Heckman’s.
Mr. Heckman is a professional painter of some 20 years’ experience. Mr. Heckman was aware of the health dangers posed by lead paint. When Mr. Heckman purchased his Berlin home, he received a State mandated lead paint disclosure form on which the seller’s checked "unknown." In addition to the Berlin house, Mr. Heckman owns a 70-year-old house in New Britain which he rents to tenants for income.
In 2012, Mr. Heckman hired T&T to partially rebuild the large front porch on his Berlin home. The work was fairly extensive and included replacing concrete footings and replacing rotted wooden railings and pillars. There was no written contract between Mr. Heckman and T&T for the porch reconstruction. Mr. Tremblay testified that T&T billed Mr. Heckman approximately $35, 000 for the porch work, and an invoice for that amount was entered into evidence, but no evidence was presented at trial that the invoice was ever paid. Mr. Vichas did not work on the porch reconstruction. Although portions of the reconstructed porch received a coat of primer, most of the reconstructed porch was not repainted as part of this project.
T&T’s bill for the porch work was sent to Mr. Heckman and his wife, Joanne Heckman. Joanne Heckman is a Regional Manager with Simon Konover Company. T&T has received grounds maintenance contracts from Konover for 7-8 years. T&T considers Konover to be a good client. T&T received a large contract for lawn maintenance at Central Connecticut State University from Konover. Mr. Vichas testified that he believed T&T provided free services to the Heckmans so that Mrs. Heckman would use her influence to ensure T&T continued to get work from Konover. Mr. Vichas testified that he witnessed Mr. Thibodeau giving a $3, 000 kickback to a Konover apartment manager (not Mrs. Heckman) so that T&T would continue to receive work at that complex. Mr. Vichas testified that based on his experience, a majority of T&T’s work comes from Konover managed or owned properties.
Safely removing lead paint from a house such as Mr. Heckman’s would be very expensive and time consuming. The house would have to be tented or otherwise covered to prevent lead dust and/or paint chips from being blown about. Painters would be required to use disposable jump suits, gloves, booties, and specialized breathing respirators to filter out lead dust and deal with the lead dust or particles that would settle on their clothes. Drop cloths would have to be put down to catch lead dust or paint chips that would otherwise settle in Mr. Heckman’s lawn, pollute the ground, and be tracked about as lead particles stuck to the bottom of painters’ shoes. The work site would have to be completely cleaned at the end of each day. There would have to be a decontamination area for workers to wash up. Signs would have to be posted notifying the public about the presence of lead.
Mr. Heckman initially contacted four painters to solicit bids to paint his house. Those painters drove by Mr. Heckman’s house to assess the job, but none expressed interest in taking the job.[4]
In April of 2013, Mr. Vichas was assigned by T&T to paint the exterior of Mr. Heckman’s house. Before beginning work, Mr. Vichas testified that he visited the Heckman house for two hours with Mr. Thibodeau. Mr. Vichas testified that Mr. Thibodeau told Mr. Vichas that the Heckmans were dear friends of the Thibodeaus, that Mrs. Heckman (through Konover) had provided T&T millions of dollars of work, and that Mr. Vichas was to do a complete restoration of the exterior paint including sanding paint down to the original wood. To do such a large job, Mr. Vichas said he needed a crew of at least five painters. Mr. Thibodeau said that was fine.
During the initial site visit to Mr. Heckman’s house, Mr. Vichas immediately noticed the age of the house and told Mr Thibodeau that he was concerned about the presence of lead paint. Mr. Thibodeau said he understood Mr. Vichas’ concern and promised to send T&T employee Chris Zduniak to the Heckman house to conduct a lead paint...
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