Burke v. Mesniaeff ( 2019 )

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BURKE v. MESNIAEFF—CONCURRENCE
D’AURIA, J., with whom KAHN, J., joins, concurring.
I concur in the result. I write separately to emphasize
two points: one legal and one factual. Both points con-
cern how our law requires that we review a trial court
record in a civil case tried to a jury.
First, I agree with the majority that the concept of
the plaintiff, Elizabeth Burke, as a trespasser had no
place in the trial court’s jury charge whatsoever. Clearly,
the court improperly included it in its charge on the
defendant’s special defense of justification, which was
limited to the defense of premises. The plaintiff argues
that this erroneous charge—permitting the jury to con-
sider the plaintiff a trespasser—tainted the jury’s con-
sideration of the defendant’s special defense of defense
of others. It’s possible.
However, our law imposes on a plaintiff seeking to
overturn a judgment after an adverse jury verdict the
substantial burden of demonstrating that an erroneous
charge on one count or defense tainted the jury’s consid-
eration of the remaining counts or defenses. ‘‘When two
or more separate and distinct defenses . . . are pres-
ent in a case, an error in the charge as to one normally
cannot upset’’ the jury’s verdict if it was ‘‘properly
charged as to the remaining defenses.’’ (Emphasis
added.) Dinda v. Sirois, 166 Conn. 68, 75, 347 A.2d 75
(1974). Under this standard, I am compelled to con-
clude, as does the majority, that the plaintiff has not
sustained her burden of demonstrating that a new trial
is necessary on the ground that the trial court’s defense
of premises charge (which contained the trespasser
instruction) tainted the jury’s consideration of the
defense of others charge (which did not).
This standard for determining whether a new trial is
necessary at all appears to me somewhat similar to the
standard that applies when determining whether to limit
the issues to be retried if a new trial is ordered due to
instructional error concerning a single issue in the case.
But it’s not entirely clear to me.
We have said that when an instructional error has
occurred as to one issue, requiring a new trial, we will
order a new trial as to other issues as well ‘‘where the
retrial of the single issue may affect the other issues
to the prejudice of either party . . . .’’ (Internal quota-
tion marks omitted.) Wendland v. Ridgefield Construc-
tion Services, Inc., 190 Conn. 791, 796, 462 A.2d 1043
(1983). In particular, in civil cases in which the
reviewing court has determined that an instructional
error occurred regarding liability, a new trial as to both
liability and damages has been ordered when ‘‘liability
is inextricably intertwined with the issue of damages.’’
SKW Real Estate Ltd. Partnership v. Gallicchio, 49
Conn. App. 563, 581 n.15, 716 A.2d 903, cert. denied,
247 Conn. 926, 719 A.2d 1169 (1998); accord Scanlon
v. Connecticut Light & Power Co., 258 Conn. 436, 451,
782 A.2d 87 (2001); Murray v. Krenz, 94 Conn. 503, 508,
109 A. 859 (1920); see also Kelly Energy Systems, Inc.
v. Commercial Industries Corp., 13 Conn. App. 236,
237, 535 A.2d 834 (1988) (in case in which trial court
employed erroneous measure of damages, ‘‘since . . .
the issue of liability is so inextricably intertwined with
the issue of damages, a new trial on both is required
in the interest of justice’’). It is not clear to me if these
articulations are the same as the rule described in
Dinda. But that is essentially the plaintiff’s argument
in the present case: that the defense of premises and
defense of others are inextricably intertwined defenses,
and error as to one instruction tainted the jury’s consid-
eration of the other, to the plaintiff’s prejudice.
Regardless of whether these are different ways of
saying the same thing, I accept that the party seeking
a new trial on all issues bears the burden of meeting
the established standard; see Scanlon v. Connecticut
Light & Power Co., supra, 258 Conn. 452 (holding that
defendant failed to satisfy its burden of establishing
that issues were interwoven); and the plaintiff has not
asked us to modify or overrule case law governing when
an erroneous charge on one defense can be deemed to
taint another appropriate charge on a separate defense.
Nor does she explain why the rule that ‘‘normally’’
applies under Dinda, should not apply in this case.
Thus, I concur in the legal reasoning of the majority.
Second, as the majority indicates, because the parties’
accounts of the incident in question differed dramati-
cally, and because we must review the sufficiency of
the evidence ‘‘in the light most favorable to sustaining
the verdict’’; (internal quotation marks omitted) Carrol
v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119
(2003); we cannot assume that the jury found the facts
to be as the plaintiff has described them. Specifically,
even though the jury found that the defendant commit-
ted an intentional assault and battery upon the plaintiff,
substantially causing or aggravating her injuries and
damages, we cannot assume that the jury credited the
plaintiff’s testimony that the defendant ‘‘threw [her] to
the ground forcefully multiple times, jerking her up by
her right arm each time that she struck the ground.’’
Rather, because the jury returned a verdict for the
defendant, our law requires that we presume that the
jury found the facts to be closer to how the defendant
described them: that he only grabbed the plaintiff by
the arm and forcibly escorted her out of the house and
down the driveway, preventing her from returning to
the house. This is true notwithstanding that the jury’s
verdict for the defendant was in part based on a special
defense (defense of premises) as to which the court’s
instruction was improper. The jury also found that
under the defense of others doctrine—which was prop-
erly charged—the force that the defendant used upon
the plaintiff was justified.
If our required review of the factual record and the
jury’s verdict led us to conclude that the jury had found
that the defendant’s assault constituted more than just
grabbing the plaintiff’s arm and leading her away from
the house, or perhaps if this assault had occurred far-
ther from the house than some of the testimony indi-
cated, I would have a much harder time concluding
that there was no taint from the improper trespass
charge. That is to say, if the defendant had in fact thrown
the plaintiff to the ground while they were down the
driveway and close to the street, as opposed to having
led her away by the arm while she was in the house
and near the defendant’s guests, I would not believe that
the jury reasonably could have found that the defendant
was justified in using this level of violence so far from
any potential victims. Under those circumstances, I
would conclude that the instruction concerning the
plaintiff as a trespasser could very well have tainted
the jury’s consideration of the defense of others special
defense. I do not believe that the possibility of the
plaintiff’s breaking away from the defendant, running
back up the driveway in the snow and accosting mem-
bers of the Questers, a historical preservation organiza-
tion, while they stood at a window watching—neither
fleeing, hiding nor calling the police—was sufficiently
plausible to have justified the defendant’s ‘‘[need] to
use . . . physical force . . . in order to repel the vic-
tim’s alleged attack.’’ (Internal quotation marks omit-
ted.) State v. O’Bryan, 318 Conn. 621, 632, 123 A.3d 398
(2015). Because we are not required to presume that
the jury credited the entirety of the plaintiff’s testimony
to sustain the verdict; e.g., State v. Sinclair, 332 Conn.
204, 241, 210 A.3d 509 (2019) (jury is free to credit all,
some or none of witness’ testimony); and because the
plaintiff does not claim that there was insufficient evi-
dence to establish the reasonableness of the level of
force used by the defendant, I concur in the result the
majority reaches.