Kumah v. Brown ( 2015 )

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WILLIAM KUMAH ET AL. v. LEO G.
BROWN ET AL.
(AC 36716)
Beach, Mullins and Bishop, Js.
Argued April 14—officially released October 27, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Nathaniel E. Baber, for the appellants (plaintiffs).
Brendon P. Levesque, with whom were Kenneth J.
Bartschi and, on the brief, Karen L. Dowd and Aamina
Ahmad, for the appellee (defendant town of
Greenwich).
Opinion
BEACH, J. The plaintiffs, William Kumah and Keziah
Kumah, appeal from the judgment of the trial court
rendered following the denial of their motion to set
aside the verdict in favor of the defendant town of
Greenwich.1 The plaintiffs claim on appeal that the trial
court abused its discretion when it denied their motion
to set aside the verdict because the jury’s answers to
the special interrogatories in the verdict form were
inconsistent. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. At approximately 1:50 a.m. on September 3, 2006,
a tractor trailer rolled over on Interstate 95. The tractor
trailer leaked diesel fuel and occupied the right and
center lanes of the highway, as well as part of the right
shoulder. Members of the defendant’s volunteer fire
department responded to the scene and established a
temporary traffic control zone. The volunteer firefight-
ers stationed a fire truck, with flashing lights, on the
right shoulder of the highway; later, they moved it so
that it was positioned diagonally across the middle and
right travel lanes, as well as a portion of the right-hand
shoulder. The firefighters placed cones as warnings to
approaching traffic. At approximately 4:10 a.m., the
vehicle operated by William Kumah collided with the
lit firetruck. He was seriously injured. The plaintiffs
then filed the present action.
Willam Kumah alleged negligence and nuisance in
separate counts, and his wife, Keziah Kumah, alleged
loss of consortium.2 In its instructions to the jury, the
court summarized the plaintiffs’ allegations of negli-
gence: ‘‘One, that the [defendant] positioned the traffic
cones in a manner that violated recognized and pre-
scribed safety standards, rules, procedures, and/or reg-
ulations. Second, that the [defendant] failed to establish
an advanced warning area to protect oncoming motor-
ists. And third, that the [defendant] failed to post signs
or otherwise provide advanced warning to oncoming
motorists after placing the fire truck on the travel por-
tion of the highway.’’3 The court also instructed the jury
on the defenses of comparative negligence and qualified
immunity. As to the nuisance count, the court instructed
the jury that the plaintiffs alleged that ‘‘through the
positive acts of its agents and employees, [the defen-
dant] created and maintained a nuisance on the highway
on September 3, 2006.’’
The jury returned a verdict in the form of answers
to interrogatories. It concluded, as to the negligence
count, that the defendant had been negligent, but that
recovery was barred by the operation of qualified immu-
nity. Specifically, as to the claim of negligence, the jury
found that the defendant had been negligent ‘‘in one or
more of the ways specified in the complaint,’’ but that
‘‘all of the negligence . . . involved the exercise of
judgment or discretion, and therefore was not ‘ministe-
rial’ . . . .’’ As to the nuisance count, the jury con-
cluded that the placement of the fire truck did not
constitute a public nuisance and, thus, found in favor
of the defendant. The jury found that the defendant had
‘‘created a condition on the highway which had a natural
tendency to create danger and inflict injury to persons
and/or property,’’ and that the danger was a continuing
one. The jury did not find, however, that the use of the
land by the defendant was ‘‘unreasonable, given the
circumstances.’’ The plaintiffs moved to set aside the
verdict on the ground that the answers to the interroga-
tories were inconsistent, the trial court denied the
motion, and rendered judgment in favor of the defen-
dant. This appeal followed.
The plaintiffs claim that the court erred in failing to
set aside the jury’s verdict because the jury’s finding
that the defendant was negligent was inconsistent with
its express finding that the defendant’s use of the land
was not unreasonable. The plaintiffs argue that the
same allegations underlay both the negligence and nui-
sance claims, and that the jury could not have found that
the defendant acted both reasonably and unreasonably
simultaneously with respect to the same conduct.4 We
conclude that the interrogatories can be harmonized.
‘‘The standard of review governing our review of a
trial court’s denial of a motion to set aside the verdict
is well settled. The trial court possesses inherent power
to set aside a jury verdict which, in the court’s opinion,
is against the law or the evidence. . . . [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 [its] 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. . . .
‘‘The role of an appellate court where an appellant
seeks a judgment contrary to a general verdict on the
basis of the jury’s allegedly inconsistent answers to such
interrogatories is extremely limited. . . . To justify the
entry of a judgment contrary to a general verdict upon
the basis of answers to interrogatories, those answers
must be such in themselves as conclusively to show that
as [a] matter of law judgment could only be rendered for
the party against whom the general verdict was found;
they must negative every reasonable hypothesis as to
the situation provable under the issues made by the
pleadings; and in determining that, the court may con-
sider only the issues framed by the pleadings, the gen-
eral verdict and the interrogatories, with the answers
made to them, without resort to the evidence offered
at the trial. . . . When a claim is made that the jury’s
answers to interrogatories in returning a verdict are
inconsistent, the court has the duty to attempt to har-
monize the answers.’’ (Citation omitted; emphasis
added; footnote omitted; internal quotation marks omit-
ted.) Froom Development Corp. v. Developers Realty,
Inc., 114 Conn. App. 618, 625–27, 972 A.2d 239, cert.
denied, 293 Conn. 922, 980 A.2d 909 (2009).
We disagree with the plaintiffs’ argument that the
answers to the interrogatories are fatally inconsistent.
It does not follow that simply because the jury found,
as to one or more of the alleged acts or omissions,
that the defendant had breached its duty to act as an
ordinarily prudent person, it then necessarily had to find
that the defendant’s use of the land was unreasonable in
the circumstances.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ (Internal quotation marks
omitted.) Mazurek v. Great American Ins. Co., 284
Conn. 16, 29, 930 A.2d 682 (2007). ‘‘A defendant’s duty
and breach of duty is measured by a reasonable care
standard, which is the care [that] a reasonably prudent
person would use under the circumstances.’’ (Internal
quotation marks omitted.) Rawls v. Progressive North-
ern Ins. Co., 310 Conn. 768, 776, 83 A.3d 576 (2014).
With respect to nuisance, ‘‘a plaintiff must prove four
elements to succeed in a nuisance cause of action: (1)
the condition complained of had a natural tendency to
create danger and inflict injury [on] person or property;
(2) the danger created was a continuing one; (3) the
use of the land was unreasonable or unlawful; [and]
(4) the existence of the nuisance was the proximate
cause of the plaintiffs’ injuries and damages. . . . In
addition, when the alleged tortfeasor is a municipality,
our common law requires that the plaintiff also prove
that the defendants, by some positive act, created the
condition constituting the nuisance.’’ (Citation omitted;
internal quotation marks omitted.) Picco v. Voluntown,
295 Conn. 141, 146, 989 A.2d 593 (2010). ‘‘Whether an
interference is unreasonable in the public nuisance con-
text depends . . . on (a) [w]hether the conduct
involves a significant interference with the public
health, the public safety, the public peace, the public
comfort or the public convenience, or (b) whether the
conduct is proscribed by [law] . . . . The rights com-
mon to the general public can include, but certainly are
not limited to, such things as the right to use a public
park, highway, river or lake.’’ (Citation omitted; internal
quotation marks omitted.) Shukis v. Board of Educa-
tion, 122 Conn. App. 555, 587, 1 A.3d 137 (2010).
The standards of reasonableness regarding negli-
gence and nuisance are different; the trial court’s apt
instructions to the jury reflected the difference.5
Although the allegations regarding the conduct underly-
ing both the negligence and nuisance counts were simi-
lar; see footnote 3 of this opinion; the jury reasonably
could have found the defendant was negligent as to the
conduct giving rise to one or more of the allegations
of negligence, while not finding that nuisance had been
proven. There were two separate and distinct causes
of action implicating different elements and standards.
The jury could have found, for example, that a reason-
ably prudent town would have added more traffic cones
or placed them differently, but that it was not unreason-
able overall, given the emergency, for the town to inter-
fere with the public’s access to the highway generally
by placing the fire truck in front of the disabled tractor
trailer and generally guarding the scene.6 The interroga-
tories were not necessarily inconsistent; therefore, the
court did not abuse its discretion in denying the plain-
tiffs’ motion to set aside the verdict.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiffs sued several entities. The only defendant that remained
in the action at the time of trial, however, was the town of Greenwich. For
simplicity, we refer to the town of Greenwich as the defendant.
2
This court and our Supreme Court previously have considered prior
appeals in this case. See Kumah v. Brown, 127 Conn. App. 254, 14 A.3d 1012
(2011), aff’d, 307 Conn. 620, 58 A.3d 247 (2013). The trial court previously had
struck the counts sounding in negligence and in nuisance, and this court
reversed the judgment as to both counts. Kumah v. Brown, supra, 127 Conn.
App. 255, 262, 263–64. We held that the negligence count, which included
allegations on which a breach of a ministerial duty could be found, withstood
a motion to strike even if qualified immunity was raised as a special defense.
Id., 261–62. We also held that recovery in nuisance was not barred by our
prior holding in Himmelstein v. Windsor, 116 Conn. App. 28, 40, 974 A.2d
820 (2009), aff’d, 304 Conn. 298, 39 A.3d 1065 (2012), and that the nuisance
count stated a cognizable cause of action. See Kumah v. Brown, supra, 127
Conn. App. 263–64. After this court’s judgment was affirmed by our Supreme
Court, the case was, accordingly, remanded for further proceedings as to
both counts.
3
The plaintiffs’ factual allegations in the negligence and nuisance counts
were similar. In the operative complaint, the plaintiffs alleged in both counts
that the defendant positioned the fire truck in such a way that: its lights
were not sufficiently visible; it caused the plaintiff’s vehicle to rotate and
to strike a barrier after the initial collision; it created a danger to oncoming
motorists; it violated safety standards; and it did not secure the accident
scene. The plaintiffs alleged that the defendant had not placed traffic cones:
at an adequate distance; in a way that warned motorists; in a way that
protected oncoming motorists; or in a way that followed safety standards,
rules, and procedures. The plaintiffs also alleged that the defendant failed
to provide adequate lighting, violated safety standards and procedures, and
failed to establish an advance warning area.
4
The defendant argues that the jury reasonably could have found the
defendant negligent as to one or more of the alleged omissions, but also,
and not inconsistently, that its positive act of placing the fire truck in the
road was not unreasonable in the circumstances. The plaintiffs argue that
the requirement, in order to recover damages, that the creation of a nuisance
has to be by means of a positive act, has no bearing on the question of whether
the defendant’s use of the land was reasonable. We need not consider this
specific argument because we conclude that the answers to the interrogato-
ries can be harmonized for other reasons.
5
Regarding reasonableness in the negligence count, the court instructed
the jury: ‘‘[N]egligence is the failure to use or exercise due care or reasonable
care as it is sometimes called. Reasonable care is that amount of care which
a reasonably prudent person would use or exercise under the same or
similar circumstances then and there existing. Negligence is the doing of
something which a reasonably prudent person would not do under the
same or similar circumstances, or on the other hand, the failure to do
what a reasonably prudent person would have done given the same or
similar circumstances. All of the circumstances must be considered, and
in considering circumstances of slight danger, a slight amount of care would
be sufficient to constitute reasonable care, while in circumstances of great
danger, accordingly, a great amount of care would be required to constitute
reasonable care. But the ultimate test of the duty to use reasonable care is
to be found in the foreseeability that harm may result if that care is not
exercised.’’ (Emphasis added.)
Regarding reasonableness in the context of the nuisance count, the court
gave the jury the following instruction: ‘‘[T]he plaintiffs must prove that the
use of the land, in this case, the westbound or southbound lane of the travel
portion of Interstate 95 on the Mianus River Bridge was unreasonable. In
making a determination concerning the reasonableness of the use of the
highway, all of the surrounding factors must be considered, including the
situation facing the responders upon their arrival on the scene, the weather
conditions, and the conditions on the road, the volume of traffic, and other
factors bearing upon reasonableness.’’
6
Reasonableness in the nuisance context weighs the utility of the interfer-
ence with the public right against the degree or severity of the interference.
See 4 Restatement (Second), Torts § 826, p.119 (1979) (‘‘[a]n intentional
invasion of another’s interest in the use and enjoyment of land is unreason-
able if . . . the gravity of the harm outweighs the utility of the actor’s
conduct . . . .’’); see also 58 Am. Jur. 2d 632–33, Nuisances § 79 (2012)
(‘‘the court must balance the gravity of the harm to the plaintiff against
the utility of the defendant’s conduct both to the defendant and to the
community’’). Such considerations are germane to deciding whether an
interference with public safety is significant. See Shukis v. Board of Educa-
tion, supra, 122 Conn. App. 587.
The jury in this case was properly instructed to consider all of the circum-
stances surrounding the alleged interference with the public use of the
highway, including, as the trial court instructed the jury, ‘‘the situation facing
the responders.’’ See, e.g., Prifty v. Waterbury, 133 Conn. 654, 658, 54 A.2d
260 (1947); Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765 (1940). The
jury may well have decided that the interference imposed by the defendant
was minimal, in comparison to the interference caused by the initial accident,
and that the social utility of guarding the scene with, inter alia, flashing
lights was great, even though a detail such as the placement of a cone may
not have been prudently executed. We further note that we are not presented
in this case with issues such as whether the allegations presented a continu-
ing interference or whether the actions of the defendant, as opposed to
the driver, actually created an interference with public safety at all. Cf.
Chirieleison v. Lucas, 144 Conn. App. 430, 443, 444–45, 72 A.3d 1218 (2013).
7
The plaintiffs also claim that the evidence was sufficient to support their
claim of nuisance. Because we conclude that the answers to the interrogato-
ries were not necessarily inconsistent, and the jury did not find for the
plaintiffs on the nuisance count, we need not address the question of whether
evidence was sufficient. No issue as to the sufficiency of the evidence is
before us.