Wendland v. Ridgefield Const. Services, Inc.

• Decision Date: 26 July 1983
• Citation: 462 A.2d 1043,190 Conn. 791
• Court: Connecticut Supreme Court
• Parties: Alfred WENDLAND v. RIDGEFIELD CONSTRUCTION SERVICES, INC.

Page 1043

462 A.2d 1043

190 Conn. 791

Alfred WENDLAND v. RIDGEFIELD CONSTRUCTION SERVICES, INC.

Supreme Court of Connecticut.

Argued June 2, 1983.

Decided July 26, 1983.

L. Douglas Shrader, Bridgeport, for appellant-appellee (plaintiff).

Roger Sullivan, Branford, with whom, on brief, was Robert D. Mercer-Falkoff, Branford, for appellee-appellant (defendant).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

This appeal is a sequel to the decision of this court in Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 439 A.2d 954 (1981) (hereinafter Wendland I ). A brief recital of certain aspects of the history and rulings involved in the original trial and in the proceedings in this court in Wendland I is necessary.

The plaintiff, a construction worker, was injured by the collapse of an earthen wall, the construction site having been excavated by the defendant, a subcontractor of the plaintiff's employer. The plaintiff instituted an action against the subcontractor defendant resulting in a verdict for the plaintiff in the amount of $247,000. The jury found no contributory negligence by the plaintiff. At that trial the court instructed the jury that a violation of regulations promulgated under the Occupational Safety and Health Act (hereinafter OSHA) constituted negligence per se.

The defendant appealed that judgment, claiming three errors were committed at the trial: (1) the negligence per se instruction, (2) the excessive size of the award, and (3) the failure of the verdict to account for the plaintiff's own negligence. This court addressed only one issue, the negligence per se instruction. We determined that this instruction was harmful error. The judgment was set aside, and the case was "remanded for further proceedings according to law." Wendland v. Ridgefield Construction Services, Inc., supra, 181, 439 A.2d 954. ¹

Following remand, the plaintiff moved the trial court "pursuant to General Statutes § 52-266 and the rule of such cases as Nash v. Hunt, 166 Conn. 418 (1974), for an order limiting the trial of this action to the issue of defendant's liability only." That request was denied by the court, Jacobson, J.

At the conclusion of the evidence in the second trial the defendant requested permission to amend its special defense of comparative negligence on the part of the plaintiff, which the court granted. ²

The jury returned a plaintiff's verdict, awarded damages of $97,178, and reduced the award based on 15.8 percent comparative negligence to $81,824. The plaintiff moved to set aside the verdict and to reinstate the first jury verdict on the grounds that (1) it was erroneous to submit the issue of damages to the jury, a claimed violation of General Statutes § 52-266, and (2) it was erroneous to submit the defendant's amended special defense to the jury because it was untimely filed and because it pleaded assumption of risk in violation of General Statutes § 52-572h(c). The court, Belinkie, J., denied the motion to set aside the verdict and rendered judgment upon that verdict. From this judgment the plaintiff appeals. ³

This appeal presents the following issues: (1) whether the trial court erred in submitting the issue of damages to the jury in violation of General Statutes § 52-266 ⁴ and in refusing to correct the verdict to reflect the amount of the jury verdict in the first trial; (2) whether the trial court erred in submitting the defendant's amended special defense to the jury because it was untimely filed and because it pleaded the defense of assumption of risk in violation of General Statutes § 52-572h(c).

We sustain the refusal of the court below to limit the trial to the issue of liability only.

"In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. [Emphasis added.] Mazzotta v. Bornstein, 105 Conn. 242, 243, 135 A. 38 [1926]. This is the guiding principle that the trial court must observe. State Bar Assn. v. Connecticut Bank & Trust Co., 146 Conn. 556, 561, 153 A.2d 453 [1959]. Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. Humphrey v. Gerard, 84 Conn. 216, 221-22, 79 A. 57 [1911]." Nowell v. Nowell, 163 Conn. 116, 121, 302 A.2d 260 (1972); State v. Avcollie, 188 Conn. 626, 643, 453 A.2d 418 (1982). "It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein." (Emphasis added.) Nowell v. Nowell, supra.

As Nowell clearly indicates, the trial court was required to consider not only the last paragraph of our decision in Wendland I, which stated that "the judgment is set aside and the case is remanded for further proceedings according to law," but also was obligated to examine the full opinion of this court. The opinion concludes as follows: "In the present case, however, a new trial is required because the charge incorrectly included a negligence per se instruction." (Emphasis added.) Wendland v. Ridgefield Construction Services, Inc., supra, 184 Conn. 181, 439 A.2d 954.

The opinion in Wendland I addressed only the issue of the trial court's charge concerning the violation of OSHA regulations as being negligence per se. This court did not consider the defendant's claim of excessive damages or its contention that the verdict failed to account for the plaintiff's own negligence.

In his motion in limine requesting a trial on the issue of damages only, the plaintiff relied on Nash v. Hunt, supra, in which case this court ordered a retrial limited to the issue of liability only. After observing that we remanded Nash on the issue of liability only, the trial court noted that in the opinion in Wendland I "the Supreme Court was silent on the issue of an excessive damage award raised by the defendant ...." The court concluded that § 52-266, in view of the mandate of this court, did not give the trial court discretion to limit the issues. ⁵ The plaintiff insists that by failing to rule on the defendant's claim in Wendland I that the verdict was excessive, this court "tied something of a Gordian knot for itself" and suggests "a means by which that knot can be cut" by urging that we direct the trial court to render judgment based on the $247,000 verdict in Wendland I. The implication is that this court inadvertently omitted to consider the question of excessive damages in Wendland I. This assumption was adequately answered by this court in Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920), in which we noted that "where the retrial of the single issue may affect the other issues to the prejudice of either party, the court will not exercise its discretion in limiting the new trial but will grant it de novo." ⁶

Where this court finds error upon the appeal and remands the case to be proceeded with according to law, the efficacy of the judgment rendered upon the original trial is destroyed and a new trial of all the issues in the case is required. Osterlund v. State, 135 Conn. 498, 501, 66 A.2d 363 (1949); Joseph v. Donovan, 118 Conn. 80, 83, 171 A. 24 (1934); McIsaac v. Hale, 105 Conn. 249, 250-51, 135 A. 37 (1926); Maltbie, Conn.App.Proc. § 345.

The plaintiff's second claim of error is that the trial court erred in submitting the defendant's amended special defense to the jury. He avers that the amendment was untimely filed, and further that the special defense pleaded assumption of risk in violation of General Statutes § 52-572h(c). We find these claims unpersuasive.

After the conclusion of testimony, both the plaintiff and the defendant amended their pleadings. The purpose of the amended special defense was to make more specific the general allegation of comparative negligence in the original pleading and to conform that pleading to the testimony elicited at trial. We have specifically noted that the trial court may, within its sound discretion, allow such an amendment...