Isaac Olabisi v. LLC (2012)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (# 162);  MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND RENEWED MOTION FOR DIRECTED VERDICT (# 163) AND MOTION FOR REMITTITUR (# 164)

Introduction

This personal injury action, involving injuries that the plaintiff, Isaac Olabisi, sustained when he fell on snow and ice on the defendant's property, was tried to a jury on several dates between October 27th and November 1, 2011.   On November 3, 2011, the jury rendered a verdict in favor of the plaintiff and awarded the plaintiff economic damages consisting of $9,472.00 in past medical expenses and $14,620.00 in lost wages plus noneconomic damages of $130,624.00.   The jury also found the plaintiff 49% liable for his injuries.

Before the court are various post-trial motions filed by the defendant.   The court heard oral argument on the motions on December 12, 2011.

Defendant's Motion to Set Aside Verdict (# 162) and Plaintiff's Objection (# 167)

The defendant has moved to set aside the verdict enumerating four grounds on which it claims the verdict should be set aside and a new trial ordered.

“It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that its instructions to the jury or its rulings on evidence were erroneous and that those erroneous instructions or rulings were consequential enough to have had a substantial effect on the verdict.”  (Citation omitted.)  Ardoline v. Keegan, 140 Conn. 552, 555–6 (1954).  “Although a trial court has inherent power to set aside a jury verdict that is against the law or the evidence, it should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․” (Internal quotation marks and citations omitted.)  RMM Consulting, LLC v. Riordan, 128 Conn.App. 688, 692 (2011).

The defendant claims that questions from the jury indicate that it was confused as to the burdens of proof and were swayed by partiality, sympathy and/or prejudice.   The jury asked:  “We feel the evidence is not enough to determine a verdict for the plaintiff or defense.   What are our next steps?”   Although this question indicated that the jury was somewhat confused as to the burden of proof, the court reinstructed them on the burden of proof in response and they continued to deliberate.   Even though the jury then came back with a plaintiff's verdict, but finding the plaintiff 51% at fault, upon further instruction from the court, the jury reached the verdict which was accepted by the court.   Consequently, if there was any confusion on the part of the jury it was resolved through further instruction and deliberation.   The defendant has pointed to nothing in the record that indicates that the jury rendered its ultimate verdict on anything other than the law and the evidence presented at trial.

The defendant next claims that the plaintiff failed in his burden of proof.   “Under our current law, [m]ere proof of the presence of some snow or ice or both does not necessarily show a breach of [a] defendant's duty.   In such a case as this, the burden rests upon the plaintiff, first, to offer evidence sufficiently describing the condition of the [property] so as to afford a reasonable basis in the evidence for the jury to find that a defective condition in fact existed;  and, secondly, to offer evidence from which the jury could reasonably conclude that the defendant had notice of this condition and failed to take reasonable steps to remedy it after such notice ․ Thus, in order to recover under our current law, the plaintiff was required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiff's injuries.”  (Citation omitted.)  Riccio v. Harbour Village Condominium Association, Inc., 281 Conn. 160, 164 (2007).

Here the evidence presented was that the plaintiff fell on the front steps of the defendant's office building.   It had snowed a day or two before his fall.   He testified that the stairs were not properly sanded or shoveled.   The owner of the building has an office in the building and is responsible for the common areas and the outside of the building.   Although he hired a service to plow, sand, and salt in the event of a snow storm, there was no testimony that he inspected the front steps' area on the day of the fall.   He relied on the service to do a competent job.   The plaintiff had alleged that the defendant was negligent in failing to properly inspect the premises and the court charged the jury on the defendant's duty to an invitee to do so.   A finding of a failure to inspect infers that the plaintiff had constructive notice of the condition of the stairs, that is, “whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it ․ It is settled that circumstantial evidence can establish constructive notice ․” (Citation omitted.)   Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276 (1991).   Therefore there was sufficient evidence on which the jury could base its verdict.   As the court noted in an analogous case, Nuzzo v. Nathan, 123 Conn.App. 114, 121 (2010), “[i]t was the exclusive province of the jury to weigh the conflicting evidence and to determine whether there was ice or salt on the road, and, if so, whether it caused the defendant's car to strike the plaintiff's vehicle.”  (Citation omitted.)   Likewise here it was the exclusive province of the jury to determine whether there was snow and ice on the stairs and whether the defendant was negligent in failing to discover and remedy it.

The defendant's third claim is that the court erred in refusing to allow the portions of the redacted transcript of the deposition of the plaintiff as substantive evidence.  “[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm ․ The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result ․ In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless ․ Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict ․ determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial ․ Thus, our analysis includes a review of:  (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations;  (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety;  and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony ․ The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence.”  (Citations and internal quotation marks omitted.)  Dow–Westbrook v. Candlewood Equine Practice, 119 Conn.App. 703, 722 (2010).   Here the defendant sought to have made an exhibit the portions of the plaintiff's deposition which the defendant had used in an attempt to impeach the plaintiff's testimony at trial.   The defendant has not established how the admission of such evidence, which the court found was cumulative, would have affected the result.

Lastly, the defendant argues that the court erred in refusing to allow a witness to testify as to the contents of a surveillance tape of the plaintiff entering the building on the date of the fall which was no longer available.   The court had previously granted the plaintiff's motion in limine regarding this evidence.   The defendant cites to Section 10–3 of the Code of Evidence.   That section states:  “The original of a writing, recording or photograph is not required, and other evidence of the contents of such writing, recording or photograph is admissible if:  (1) Originals lost or destroyed.   All originals are lost or have been destroyed, unless the proponent destroyed or otherwise failed to produce the originals for the purpose of avoiding production of an original;  or (2) Original not obtainable.   No original can be obtained by any reasonably available judicial process or procedure;  or (3) Original in possession of opponent.   At a time when an original was under the control of the party against whom it is offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the proceeding, and that party does not produce the original at the proceeding;  or (4) Collateral matters.   The contents relate to a collateral matter.”   Here it was undisputed that the videotape was destroyed because the internal hard drive for the video surveillance system had failed and the surveillance video for the day of the fall could not be retrieved.  (See Affidavit attached to Objection to Plaintiff's First Motion in Limine (# 142).)   Therefore, pursuant to Section 10–3 of the Code of Evidence, the court could have allowed other evidence as to the contents of the video.   In support of its claim that the court should have allowed the testimony of the witness who had viewed the videotape, the defendant cites State v. Nelsen, 219 Or.App. 443 (2008).   There the court allowed the testimony of witnesses who had viewed a surveillance video which was no longer available.   The court applied Oregon's best evidence rule ¹ which is similar to Connecticut's.   In a similar case, U.S. v. Brown (W.D.Pa.7–29–2009), Criminal No. 08–0098 (Lancaster, D.J.), the court granted a motion in limine to exclude testimony regarding a video recording that had been destroyed.   Applying Federal Rule of Evidence 1004 ² the court held that although the government had met its burden that the video had been lost, but not in bad faith, that did not end the inquiry.  “Rule 403 provides that otherwise admissible evidence ‘may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’  Fed.R.Evid. 403.   The court of appeals has held that this court is in the best position to assess the extent of the prejudice caused a party and that, therefore, the trial judge must be given very substantial discretion in balancing probative value on the one hand and unfair prejudice on the other.   Here, the government intends to offer the testimony of four (4) DEA agents.   The agents are to testify as to what they remember seeing on the approximately one hour long video recording.   The only time they viewed it was over three years ago, on July 17, 2006.   None of the agents took contemporaneous notes that could qualify as present sense impressions of the video tape, or even be used to refresh their recollections.   Nor did the agents otherwise record their recollections regarding the content of the video recording while it was fresh in their memories.   Instead, they intend to testify now regarding what they remember seeing on the recording when they watched it once, three years ago.   The proffered testimony is substantially outweighed by the danger of unfair prejudice to defendant.   Specifically, it will be extremely difficult for defendant's counsel to cross-examine these witnesses as to the accuracy of their recollection given that counsel has not viewed the video and does not have any other objective account of the content of the tape with which to compare.   Further, the jury may be left with the improper impression that the DEA agents were eyewitnesses to the alleged crime, as opposed to merely being present when the video tape was viewed.”   A similar analysis was undertaken by the court in Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40 (Tex.App.-CC [13th Dist.] 2001), cited by the defendant.   There the court allowed certain items regarding a television broadcast such as a rundown of the broadcast, the script, and videotapes used within the broadcast even though a copy of the tape of the actual television broadcast itself had been erased.   The court held that the parties were not prejudiced and the jurors were not misled by the admission of such evidence since both parties were able to fully present their version of what was shown in the actual broadcast and the jurors were free to judge the credibility of the witnesses.

The court disallowed the proffered evidence here because of the unfairness to the plaintiff of allowing such crucial evidence to go to the jury without the ability of the plaintiff to test its veracity.   Our evidence code provides that:  “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of' cumulative evidence.”  Sec. 4–3, Code of Evidence.  “Section 4–1 of the Connecticut Code of Evidence provides that evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.   Relevant evidence may be excluded, however, if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury ․ Conn.Code Evid. § 4–3.   Unfair prejudice exists when the evidence tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence ․ [T]he trial court has broad discretion in ruling on the admissibility ․ of evidence.”  State v. Rosario, 113 Conn.App. 79, 94 (2009).  “A determination regarding undue prejudice is a highly fact and context-specific inquiry.  [T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court.”  (Internal quotation marks and citation omitted.)  State v. Burney, 288 Conn. 548, 565 (2008).

Here, as in U.S. v. Brown, the witness had viewed the videotape in April of 2007, over four years before the trial.   It would have been extremely difficult for the plaintiff's attorney to cross-examine her regarding her testimony about what was on the videotape when he had no opportunity to view it and no means to verify that the tape was in truth a tape of the plaintiff's activities on the day of the incident.   In fact the affidavit submitted with the objection to the motion in limine stated that:  “Upon inspection in 2007, I determined that the internal hard drive for the system had failed in May of 2007 and the files did not match the dates on the hard drive.”  (See Affidavit attached to Objection to Plaintiff's First Motion in Limine (# 142).)   In addition, the jury may have interpreted the testimony as equivalent to eye witness testimony as opposed to merely testimony from a view of the videotape.   Lastly, the introduction of the testimony would have been highly prejudicial to the plaintiff since it went directly to the issue of whether the plaintiff did in fact fall.   Consequently, the court concludes that it was not in error in excluding the testimony.

Defendant's Motion for Remittitur (# 164) and Plaintiff's Objection (# 165)

In its motion for remittitur the defendant claims that there was no evidence to support the jury's award of lost wages in the amount of $14,620.00.

“The right of trial by jury is of ancient origin, characterized by Blackstone as the glory of the English law and the most transcendent privilege which any subject can enjoy ․ We repeatedly have stated that the award of damages, in particular, is a matter peculiarly within the province of the trier of facts ․ For that reason, we consistently have held that a court should exercise its authority to order a remittitur rarely—only in the most exceptional of circumstances ․ In determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict ․ Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant ․ The ultimate test which must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense ofjustice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption ․ The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has] included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions.”  (Internal quotation marks and citations omitted.)  Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 280–1 (2011).

Here there was evidence that the plaintiff earned $17 per hour and worked a forty-hour week.   He was out of work from the date of the accident, March 19, 2007, until January 2008.   Loss wages calculated over that period of time of approximately 34 weeks would result in a sum in excess of the jury verdict.   Therefore a remittitur is not warranted.

Defendant's Motion for Judgment Notwithstanding the Verdict and Renewed Motion for Directed Verdict (# 163) and Plaintiff's Objection (# 166)

The defendant advances essentially the same reason, that is, that the plaintiff introduced insufficient evidence to support his claim of negligence, in support of its motion for judgment notwithstanding the verdict and renewed motion for directed verdict, as it does in its motion to set aside verdict.   “[The trial 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 ․ Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion ․ that, in the absence of clear abuse, we shall not disturb ․ Similarly, [a] trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion ․ In reviewing the trial court's decision [to grant the defendant's motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff ․ Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ․ it may not resort to mere conjecture and speculation ․ A directed verdict is justified if ․ the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party ․ A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.”  (Internal quotation marks and citations omitted.)   Zaneski v. Turtle, 128 Conn.App. 829, 833–4 (2011).   As noted above, there was sufficient evidence to' support the jury's verdict.

Conclusion

For the foregoing reasons, the defendant's Motion to Set Aside Verdict (# 162), Motion for Remittitur (# 164), and Motion for Judgment Notwithstanding the Verdict and Renewed Motion for Directed Verdict (# 163), are denied;  and the plaintiff's objections thereto (# # 165, 166, 167) are sustained.

Jane S. Scholl, J.

FOOTNOTES

FN1. The court noted that:  “The pertinent portion of OEC 1004 provides that:  ‘The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible when:  (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]’  “ State v. Nelsen, 219 Or.App. 443, 448 (2008)..  FN1. The court noted that:  “The pertinent portion of OEC 1004 provides that:  ‘The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible when:  (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]’  “ State v. Nelsen, 219 Or.App. 443, 448 (2008).

FN2. The court noted that:  “Federal Rule of Evidence 1004(1) provides that ‘other evidence of the contents of a writing, recording, or photograph ․ is admissible if ․ [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.’   “ U.S. v. Brown (W.D.Pa.7–29–2009), Criminal No. 08–0098 (Lancaster, D.J.)..  FN2. The court noted that:  “Federal Rule of Evidence 1004(1) provides that ‘other evidence of the contents of a writing, recording, or photograph ․ is admissible if ․ [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.’   “ U.S. v. Brown (W.D.Pa.7–29–2009), Criminal No. 08–0098 (Lancaster, D.J.).

Scholl, Jane S., J.