John D'Angelo v. Newkirk & Whitney Funeral Directors, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT # 128

FACTS

This case arises out of a slip and fall on the defendant's stairs.   On November 11, 2009, the plaintiff, John D'Angelo, filed a one-count complaint for negligence based on premises liability against the defendant, Newkirk & Whitney Funeral Directors, Inc. On May 15, 2011, the jury reached a verdict in favor of the defendant.   The plaintiff now moves to set aside the verdict.   The defendant objects.   Both parties have filed memoranda.

DISCUSSION

The plaintiff moves to set aside the verdict on the grounds that:  (1) the court erred when instructing the jury on the law of comparative negligence, (2) the defendant, through counsel, improperly argued to the jury that they should be offended by the plaintiff's receipt of social security benefits and (3) the jury's verdict was erroneous in that it was against the weight of the evidence and not consistent with the evidence presented at trial.

The defendant counters that:  (1) the court instructed the jury properly on numerous occasions as to the law of comparative negligence and the statement identified by the plaintiff was made in passing when discussing the jury verdict form, (2) the argument to the jury regarding the plaintiff's status as a social security disability recipient was taken out of context by the plaintiff's counsel and (3) the jury's verdict was correct and in accordance with the evidence presented at trial.

A

General Verdict Rule

“The 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 ․ Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand;  only if every ground is improper does the verdict fall ․ Our Supreme Court has held that the general verdict rule applies, inter alia, to a situation in which there has been a denial of a complaint along with the pleading of a special defense.”   (Citations omitted;  internal quotation marks omitted.)  Modugno v. Colony Farms of Colchester, Inc., 110 Conn.App. 200, 203, 954 A.2d 270 (2008).

In Jackson v. H.N.S. Management Company, Inc., 109 Conn.App. 371, 374, 951 A.2d 701 (2008), the Appellate Court ruled that it was precluded from considering the plaintiff's appeal under the general verdict rule because there was a denial of the complaint along with the pleading of a special defense of comparative negligence.   The court noted that because the plaintiff did not “claim any impropriety in connection with the special defense of comparative negligence, the special defense could have provided an error free path to the jury's verdict under the general verdict rule.”  Id.

“The defendant's denial of the plaintiff's allegations of negligence and the defendant's special defense constituted two separate and distinct defenses, either of which may have supported the jury's verdict.”  Turturino v. Hurley, 98 Conn.App. 259, 263, 907 A.2d 1266 (2006).   Therefore, “to determine if the general verdict rule precludes [the court's] review of the plaintiff's claims, [the court] must determine whether the claimed improprieties relate to either of the two grounds on which the jury might have based its verdict.”   Modugno v. Colony Farms of Colchester, Inc., supra, 110 Conn.App. 204.

Here, the defendant denied the plaintiff's allegations of negligence as set forth in the complaint and raised the plaintiff's negligence as a special defense.   The plaintiff argues that there was an impropriety with the special defense of comparative negligence, namely an improper jury instruction.   Additionally, the plaintiff's claim that the verdict was against the weight of the evidence relates to the ground for the verdict that the defendant was not negligent.   See D'Alesandro v. Clare, 74 Conn.App. 177, 179, 181, 812 A.2d 76 (2002) (finding that the plaintiff's claim that the verdict was against the weight of the evidence related to the jury's finding that the defendant was not negligent).   Consequently, neither the special defense of comparative negligence nor the defendant's denial of negligence provides an error free path to the jury's verdict.   As a result, the general verdict rule does not preclude the court's consideration of the plaintiff's motion.

B

Jury Instruction

The plaintiff argues that the court erred by:  (1) instructing the jury that it must return a defendant's verdict if it finds that the plaintiff's negligence was fifty percent of the total negligence in the case and (2) failing to re-charge the jury on the law of comparative negligence after it was made known to the court that there was a mistake in the charge.

“When reviewing the challenged jury instruction ․ we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component ․ [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law ․ As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ․ we will not view the instructions as improper.”   (Internal quotation marks omitted.)  State v. Griggs, 288 Conn. 116, 124, 951 A.2d 531 (2008).

In this case, the court, on one occasion, misstated the rule on comparative negligence;  however, as the defendant points out, the court on numerous occasions correctly instructed the jury it must return a defendant's verdict if it finds that the plaintiff's negligence was greater than fifty percent of the total negligence in the case.   Moreover, instructions on the Defendant's Verdict Form returned by the jury correctly set forth the comparative negligence rule.   There is no injustice requiring the verdict to be set aside because the charge to the jury, when considered as a whole, was sufficient to inform the jury of the applicable law.

C

Defense Counsel's Closing Argument Comment

The defendant's counsel during closing arguments made the following comment:  “As a taxpayer in the State of Connecticut, I am offended that the plaintiff claims he has a 20% permanent disability when he has been receiving social security disability benefits for allegedly being totally disabled.   And you should be offended, too.”   At trial, the plaintiff's counsel did not object to the comment, did not seek a curative instruction and did not move for a mistrial.   The plaintiff now maintains that this comment was “a bald, unjustified attack on the plaintiff's credibility” and “obliterated” the plaintiff's opportunity for a fair trial.

“When a verdict should be set aside because of improper remarks of counsel ․ the remedy is a new trial ․ In seeking a new trial on this ground, a party's burden of proof is twofold.   First, it must demonstrate that the challenged remarks in fact were improper.   Then, the party must show that the improprieties during argument warrant a new trial ․” (Citations omitted;  internal quotation marks omitted.)  Forrestt v. Koch, 122 Conn.App. 99, 107, 996 A.2d 1236 (2010).  “[T]he trial court ․ [is] in the best position to assess the possible prejudice, if any, that may have resulted from counsel's comments, and to fashion an appropriate remedy from a range of possible alternatives ․ The [parties seeking to set aside verdict] were obliged, therefore, to raise in the trial court their objections to counsel's improper remarks.   Because they failed to do so, the [movants] are entitled to a new trial only if they can demonstrate that such relief is necessary to remedy a manifest injustice.”  Tornaquindici v. Keggi, 94 Conn.App. 828, 837–38, 894 A.2d 1019 (2006).

“Closing argument in civil cases, deemed improper upon appellate review, but not sufficiently improper to warrant the granting of a motion to set aside the verdict and to order a new trial, includes calling the opposing side's arguments a combination of ‘sleaze, slime and innuendo,’ and characterizing the testimony of a defendant as ‘weasel words' ․ or arguing that the defendants provided testimony to ‘save their filthy money’ ․ or asking the jurors to imagine that they had suffered the same injury when assessing damages, and discussing the defendant country club's lack of insurance and the impact on the jury's decision if one of the jurors' children had visited the country club and was injured ․ or arguing that defense counsel used tactics like criminal defense lawyers in sexual assault cases.”  (Citations omitted.)  Palkimas v. Lavine, 71 Conn.App. 537, 547, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).

The plaintiff cites to Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 470 A.2d 705 (1984) for the proposition that the verdict should be set aside based on the improper remarks of the defendant's counsel during closing argument.   In Yeske, the Appellate Court noted that “[i]nterspersed among comments about the defendants' counsel's appearance, the size of his firm, the position of his counsel table and the type of clients he represents, the plaintiffs' counsel also” recounted a story of a defense attorney who, in a murder trial, tried “to convince the jury that his client didn't commit the murder ․ took the poison that was the exhibit, and drank it, made a summation to the jury, walked out of the Courtroom, and then he had his doctors there that pumped out his stomach.”   Id., 204 n.8. The plaintiff's counsel in Yeske then went on to suggest that the defense counsel was trying to pull a similar trick.  Id. The Appellate Court found that the trial court “acted properly in setting aside the verdict because of the statements of the plaintiffs' attorney.”  Id., 205.

The comment by defense counsel in this case does not rise to the level of the statements in Yeske.   Moreover, the comment was not nearly as inflammatory as the other comments previously cited that did not require a new trial.   Specifically, the comment did not rise to the level of the statements made in Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 657 A.2d 1087 (1995).   In Rizzo, the Supreme Court found that the statements, which included describing the opposing side's arguments a mix of “sleaze, slime and innuendo,” and defining the defendant's testimony as “weasel words,” did not warrant a new trial.   Id. 687 n.33. In finding that the defendants were not entitled to a new trial, the Supreme Court noted that “the factual issues were not complicated, and there is little risk that counsel's objectionable remarks created undue confusion in the minds of the jurors.   Moreover, the comments were neither so frequent nor so outrageous that they inevitably influenced the jury and, finally, any possible harm to the defendants likely was eliminated by the trial court's clear and emphatic charge to the jury that its verdict was to be based solely on the evidence and not on the remarks of counsel.”  Id., 688.

Here, the defense counsel's comment was improper, but the plaintiff has not met his burden that a new trial is necessary to remedy a manifest injustice.   The issues in this case were not complex, the trial was short, and the comment by the defendant's counsel was not lengthy.   As in Rizzo, there is little risk that counsel's objectionable remark created undue confusion in the minds of the jurors.   Nor was the comment so outrageous that it inevitably influenced the jury.   Therefore, the plaintiff is not entitled to a new trial due.

D

Erroneous Jury Verdict

The plaintiff's final ground for moving to set aside verdict is that the jury's verdict was erroneous in that it was against the weight of the evidence and not consistent with the evidence presented at trial.   The plaintiff offers no other arguments in support of this assertion.

“[The court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.”  (Internal quotation marks omitted.)  Vielas Band of Kumeyaay Indians v. Lorinsky, 116 Conn.App. 144, 170, 976 A.2d 723 (2009).

The verdict in this case is neither contrary to nor inconsistent with the evidence presented.   There is no manifest injustice of the verdict that is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles.   The verdict will not be not set aside.

CONCLUSION

For the foregoing reasons, the plaintiff's motion to set aside verdict is DENIED.

Tanzer, J.T.R.

Tanzer, Lois, J.T.R.