Debra Zucker v. Town of Westport (2014)

MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT (189.00)

Plaintiff has filed a motion, dated January 24, 2014, seeking to set aside the defendant's verdict rendered and accepted on January 17, 2014.   The sole basis for the motion is that the court erred when it added the word “unreasonably” to the phrase “dangerous condition” in the first jury interrogatory.

Specifically, the first interrogatory as submitted to the jury read:  “Did the plaintiff, Debra Zucker, prove by a preponderance of the evidence that her fall, on November 9, 2009, was caused by an unreasonably dangerous condition of a threshold that existed at the Greens Farm train station?”   That interrogatory was answered in the negative by the jury, which resulted in a verdict for the defendant.

By way of relevant background, the court provided to counsel two preliminary versions/drafts of the forms proposed to be submitted to the jury (as well as two preliminary version/drafts of the jury charge), on the second and third mornings of the trial.   The earlier version(s) of the first interrogatory read:  “Did the plaintiff, Debra Zucker, prove by a preponderance of the evidence that her fall, on November 9 2009, was caused by the dangerous condition of a threshold that existed at the Greens Farm train station?”

In response to comments from counsel concerning one of those drafts, the court had agreed to change “the dangerous condition” to “a dangerous condition” but also indicated to counsel that the court was seriously considering substituting the interrogatory utilized and quoted in Mazurek v. East Haven, 99 Conn.App. 795 (2007), a case that the court felt was particularly relevant to the issues in this case given the similarity of circumstances.   In Mazurek, the initial interrogatory propounded to the jury read:  “Do you find that the condition of the area of the plaintiff's fall was unreasonably dangerous?”   Instead of a total substitution of that language, the court ultimately added the word “unreasonably” to its prior language (with an appropriate change in the article preceding the phrase, as had been promised).

Plaintiff claims that it is likely that the jury was confused or misled by the addition of the word “unreasonably.”   Plaintiff also suggests that there is no authority for such a modifier.   Plaintiff's claims can be addressed on a number of levels.

First, with respect to the existence of any authority for such a modifier, a similar modifier was used in Mazurek, as quoted above.  (The court recognizes that the Appellate Court explicitly noted that there had been no objection to that interrogatory.)   As defendant has pointed out in its brief in opposition to plaintiff's motion, the Mazurek court also used the term “unreasonably dangerous” in a footnote, describing the probative value of certain evidence in the case, 99 Conn.App. 804, n.7.

A similar phrase was used in DiPietro v. Farmington Sports Arena, 123 Conn.App. 583 (2010) by plaintiff's expert, and on at least one occasion the court reformulated the issue in terms of whether the condition of the floor was “unreasonably unsafe.”

In Danko v. Redway Enterprises, Inc., 254 Conn. 369, 387 (2000), a party had referred to the condition of a floor as being in “an unreasonably dangerous condition,” and the refusal of the trial judge to allow that allegation to be used as an admission was deemed to be harmful error, warranting reversal.   See, also, Mazurek v. Great American Ins. Co., 284 Conn. 16, 29–30 (2007) (addressing question of whether work site was unreasonably dangerous).

Allegations and discussions concerning whether a particular premises condition is “unreasonably dangerous” often can be found in trial court decisions.   See, e.g., Guerriero v. National Amusements, J.D. Hartford, No. CV 09–5028877–S (Jan. 4, 2011);  Wright v. DB Companies, Inc., J.D. New Haven, No. CV 04–486068 (Aug. 17, 2010);  Dumas v. Price Chopper, No. WWMCV–09–5004896S (Mar. 31, 2010) (“Whether a condition renders the premises unreasonably dangerous is likewise an issue of fact.   Rahuba v. 5 D's, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 01 0164077 (September 16, 2004, Gormley, J.) (38 Conn. L. Rptr. 191, 193)”).

Semantically, reasonableness is the touchstone for claims of negligence.   Stated in the affirmative, a party owning or maintain premises is charged with the duty of making the premises reasonably safe.   Conversely, almost anything can be dangerous, depending upon context.   While liability in premises cases often is framed in terms of whether or not a situation is dangerous, it really comes down to whether or not the situation was unreasonably dangerous as opposed to being reasonably safe.   A door or step/stair or staircase can be dangerous;  whether liability can arise depends upon whether the door or step/stair or staircase was unreasonably dangerous given the existing circumstances.   By analogy, in product liability litigation, the issue is not whether a product is or may be dangerous but whether it is unreasonably dangerous.

It is helpful to this analysis to consider the scenarios that might arise under the semantic distinction plaintiff claims to be significant.   If a condition were not deemed to be “dangerous” then it would not and could not lead to liability under any formulation.   If a condition were deemed to be “unreasonably dangerous,” then it could be a basis for liability, assuming other criteria for liability were satisfied.   The dispute, to the extent it exists at all, is with respect to a condition that is dangerous but not unreasonably dangerous.

Ski slopes at a ski resort readily can be characterized as dangerous.   A skateboard park with ramps and other non-horizontal surfaces can be characterized as dangerous.   The parking lot at a mall can be characterized as dangerous (especially for pedestrians).   All of these locations present inherent dangers/hazards but any claim of liability would require some quality of unreasonableness.

The interrogatories must be read in the context of the charge.   Plaintiff has not identified anything in the charge relating to danger or safety that is claimed to have been improper.   The court repeatedly instructed the jury that the defendant was obligated to take reasonable care to make the premises reasonably safe.¹  If all dangers were required to be addressed, whether or not their presence might be deemed unreasonable, then the standard of “reasonable care to make the premises reasonably safe” would need to be replaced by a duty to make the premises safe (if not absolutely safe)—effectively requiring a guarantee of safety.

The court notes that the jury did not have any problem with “reconciling” a charge addressing the need to take reasonable care to make the premises reasonably safe, and an interrogatory asking whether the condition at issue was unreasonably dangerous.   The jury did not ask for any explanation of any perceived conflict in standards.   The jury reached its verdict in less than half an hour,² indicating that there was little need for any internal debate about meaning or standards—any internal issues that might have arisen were promptly resolved.

The court is satisfied that the jury was not confused or misled by any variation in language used.   The first two interrogatories attempted to distill the lengthy charge concerning defendant's obligations to plaintiff to two yes-or-no questions, and reasonably accomplished the intended purpose.   The court has substantial latitude in formulating interrogatories, and the decision to include the word “unreasonably” did not transgress any applicable limit on discretion.

For all these reasons, plaintiff's motion is denied.

POVODATOR, J.

FOOTNOTES

FN1. For example, in connection with plaintiff's status as an invitee, the court charged the jury in substantially this language (from Civil Jury Instruction 3.9–4):  “Therefore, the defendant owed her the following duties:“1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe ․”.  FN1. For example, in connection with plaintiff's status as an invitee, the court charged the jury in substantially this language (from Civil Jury Instruction 3.9–4):  “Therefore, the defendant owed her the following duties:“1) the duty to use reasonable care to inspect and maintain the premises and to make the premises reasonably safe ․”

FN2. The exhibits and forms were delivered to the jury at approximately 2:12 P.M., according to court records.   The court was back in session to receive the verdict at approximately 2:43 P.M., also according to court records.   The court had been advised that the jury had reported reaching a verdict at approximately 2:35 P.M. (unofficial time)..  FN2. The exhibits and forms were delivered to the jury at approximately 2:12 P.M., according to court records.   The court was back in session to receive the verdict at approximately 2:43 P.M., also according to court records.   The court had been advised that the jury had reported reaching a verdict at approximately 2:35 P.M. (unofficial time).

Povodator, Kenneth B., J.