R.I. Pools, Inc. v. Paramount Concrete, Inc. , 149 Conn. App. 839 ( 2014 )

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R.I. POOLS, INC. v. PARAMOUNT
CONCRETE, INC.
(AC 34363)
Lavine, Sheldon and Keller, Js.
Argued October 24, 2013—officially released May 6, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Complex Litigation Docket,
Blawie, J.)
Michael S. Taylor, for the appellant (defendant).
Raymond J. Plouffe, Jr., for the appellee (plaintiff).
Opinion
KELLER, J. The plaintiff, R.I. Pools, Inc., brought
this action under the Connecticut Product Liability Act
(act), General Statutes § 52-572m et seq., seeking dam-
ages against the defendant, Paramount Concrete, Inc.,
for having sold it an allegedly defective product that it
used in its construction of several luxury swimming
pools for homeowners in Fairfield County.1 The defen-
dant appeals from the judgment of the trial court, ren-
dered following a jury trial, in favor of the plaintiff. The
defendant claims that the court improperly (1) denied
its motion to set aside the verdict, and (2) awarded the
plaintiff punitive damages. We agree with the defendant
that the jury’s award of compensatory damages and the
court’s award of punitive damages must be reversed.
Accordingly, we remand the matter to the trial court
for a hearing in damages on the plaintiff’s claim for
compensatory damages, and a separate hearing to
determine the plaintiff’s award of punitive damages.2
By means of its amended complaint dated February
14, 2011, the plaintiff alleged that it purchased a con-
crete product, Shotcrete, from the defendant. The plain-
tiff installed the Shotcrete in several pools and spas
that it built for homeowners in the course of its pool
and spa construction business. The plaintiff alleged that
the Shotcrete ‘‘has thus far cracked in at least seventeen
pools,’’ causing property damage. The plaintiff,
expressly invoking the act, alleged that the defendant
was liable for all damages and losses it had sustained
as a result of the defective Shotcrete, in that (1) ‘‘the
Shotcrete should have been made with concrete sand
only, not masonry sand or a combination of masonry
sand and concrete sand’’; (2) ‘‘the Shotcrete was
improperly mixed’’; (3) ‘‘the Shotcrete was made, dis-
tributed and/or delivered by machines and equipment
that were not properly maintained, repaired and/or
equipped’’; (4) ‘‘improper amounts and/or grade of
ingredients were utilized’’; and (5) ‘‘[the defendant]
failed to warn or advise [the plaintiff] of the foregoing
and of the potential for danger and damage it posed to
the pools and spas being constructed by [the plaintiff],
as well as the potential for damages and losses to the
surrounding real and personal property in the vicinity
of these pools.’’
The plaintiff alleged that, ‘‘even though [the defen-
dant] knew or should have known that the Shotcrete
it was selling was not in compliance with industry stan-
dards and deviated from product design requirements
and recommendations, [the defendant] made represen-
tations to the contrary, thereby purposefully misleading
its customers, including [the plaintiff], despite knowing
that such customers were relying upon their representa-
tions and the purported quality and fitness of their prod-
uct in building substantial construction projects,
including pools, spas and other structures . . . .’’ Fur-
thermore, the plaintiff alleged that ‘‘[the defendant]
operated a concrete/Shotcrete plant without personnel
that had sufficient expertise and/or training in the
proper mixture and/or amounts and/or grade of ingredi-
ents for Shotcrete, and/or proper delivery for Shotcrete
when it knew or should have known that the operation
of a concrete/Shotcrete plant without such sufficient
expertise created a high probability of causing substan-
tial injury to product users, and consumers, including
the plaintiff, and their respective property.’’ On the basis
of these allegations, as well as the allegations previously
set forth, the plaintiff claimed that the defendant’s
course of conduct ‘‘was in reckless disregard for the
safety of product users, consumers and the plaintiff and
their respective property which were injured by the
product . . . .’’
The plaintiff alleged that, as a result of the defendant’s
defective product as well as its ‘‘egregious conduct,’’ it
had sustained substantial financial losses and damages,
‘‘including the costs of repair and/or replacement of
seventeen pools, spas, landscaping, and hardscaping,
and the potential for additional losses and damages if
cracking and other related failures occur in some or
all of the other pools and spas it built with Shotcrete
supplied by the defendant.’’ The defendant denied hav-
ing sold the plaintiff a defective product and, by means
of special defense, alleged that any losses sustained by
the plaintiff had resulted from ‘‘its misuse, alteration
and/or modification of the product at issue . . . .’’3
At trial, the plaintiff presented evidence of varying
degrees of crack damage in nineteen completed swim-
ming pools it had built using Shotcrete manufactured
by and purchased from its subcontractor, the defen-
dant.4 The plaintiff presented evidence that the cracks
found in all of the pools at issue had been caused by
Shotcrete that had not been mixed to a proper consis-
tency, which, in turn, had led to excessive shrinking in
completed pools. The defendant, denying that it had
sold defective Shotcrete, attempted to prove that the
cracking at issue had resulted from the defective con-
struction practices of the plaintiff.
During closing argument, the plaintiff’s attorney
stated that the plaintiff wanted to ‘‘repair’’ and ‘‘rebuild’’
the pools at issue. During argument, he referred to a
chart that was displayed as a visual aid that, among
other things, described the location of each of the nine-
teen pools at issue as well as the amount of damages,
whether past, present or both, that had been incurred
or would be incurred by the plaintiff with regard to
each pool. Referring to damage amounts specified for
each of the nineteen pools at issue, the plaintiff’s attor-
ney referred to the evidence and explained the method
by which his client had calculated its damages, and
argued that the total amount of past and future damages
supported by the evidence was $2,760,208.5 This
amount, which included lost profits to the plaintiff as
well as miscellaneous damages listed in the amount of
$7680.64, was labeled as the ‘‘total’’ on the chart.
The plaintiff’s attorney, however, cautioned that
because the plaintiff was not seeking lost profits in
its complaint, this ‘‘total’’ amount should be adjusted
appropriately. Thus, the plaintiff’s attorney argued that
the amount of damages proven and sought by the plain-
tiff, minus lost profits, was $2,365,562. One of the issues
submitted to the jury was whether the plaintiff was
entitled to an award of punitive damages pursuant to
the act and, during argument, the plaintiff’s attorney
argued in support of such an award.
During its charge, the court stated, in relevant part,
that the jury was to consider evidence concerning the
nineteen pools about which it had heard evidence and
to complete the jury verdict forms, including interroga-
tories, provided to it. The court stated that part of the
jury’s obligation would be to provide a ‘‘breakdown of
[damages related to] each of the nineteen pools about
which [it] heard evidence.’’ The court instructed the
jury that, in the event that it awarded the plaintiff dam-
ages, the amount of damages reflected in its completed
interrogatories should be the same figure reflected on
the plaintiff’s verdict form. Following deliberations, the
jury returned a verdict in favor of the plaintiff in the
amount of $2,760,207.90, and found that the plaintiff
was entitled to punitive damages.
By means of jury interrogatories, the jury, in the con-
text of awarding a plaintiff’s verdict, was asked to spec-
ify both the ‘‘total damages’’ and the defendant’s
percentage of fault for each of the nineteen pools for
which damages were sought by the plaintiff. The com-
pleted interrogatories reflect that, with respect to each
of the nineteen pools at issue, the jury found that the
defendant was 100 percent at fault and the plaintiff was
entitled to recover damages in the identical amount of
$145,274.10. The completed interrogatory forms reflect
that the jury did not award any ‘‘miscellaneous dam-
ages,’’ as had been requested by the plaintiff. The total
damages were specified both in the interrogatories and
on the plaintiff’s verdict form as $2,760,207.90. After
the verdict was announced, the jury was polled and
each juror expressed his or her agreement with the
verdict. The court did not conduct any further inquiry
of the jury concerning its verdict.
Subsequently, the defendant filed a motion to set
aside the verdict. Following a hearing, the court denied
the motion. Later, the court awarded punitive damages
in the amount of attorney’s fees incurred by the plaintiff,
less costs.6 The court denied the defendant’s motion to
reargue this decision. This appeal followed. Additional
facts will be set forth as necessary.
I
First, on a variety of grounds, the defendant chal-
lenges the court’s denial of its motion to set aside the
verdict. Before addressing the defendant’s arguments,
we set forth our standard of review. ‘‘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 [that], in the court’s opinion, is against the law
or the evidence. . . . [The trial court] should not set
aside a verdict [when] it is apparent that there was
some evidence [on] which the jury might reasonably
reach [its] conclusion, and should not refuse to set it
aside [when] the manifest injustice of the verdict is so
plain and palpable as clearly to denote that some mis-
take 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.’’ (Internal quotation marks omitted.) Weyant
v. Kristy, 126 Conn. App. 180, 183, 10 A.3d 119 (2011).
A
The first part of the defendant’s claim relates to the
jury’s finding as to liability. The defendant argues, as
it did before the trial court in the context of its motion
to set aside the verdict, that the award cannot stand
because the plaintiff failed to present evidence that it
proximately caused damage to four of the nineteen
pools at issue.7 The gist of the argument is that the
testimony of the plaintiff’s expert witness with regard
to causation, licensed structural engineer Gerard Feld-
man, reflects that, in connection with four of the pools
at issue, he did not conduct any firsthand evaluation
of their condition and, in rendering his expert opinion,
did not rely on evidence of a type reasonably relied
on by experts in his field. Thus, the defendant argues,
Feldman’s opinion that defective Shotcrete caused the
cracking in these pools cannot support the verdict with
regard to these four pools.
‘‘[I]n order to recover under the doctrine of strict
liability in tort the plaintiff must prove that: (1) the
defendant was engaged in the business of selling the
product; (2) the product was in a defective condition
unreasonably dangerous to the consumer or user; (3)
the defect caused the injury for which compensation
was sought; (4) the defect existed at the time of the
sale; and (5) the product was expected to and did reach
the consumer without substantial change in condition.’’
(Internal quotation marks omitted.) Potter v. Chicago
Pneumatic Tool Co., 241 Conn. 199, 214, 694 A.2d 1319(1997). It is not in dispute that the plaintiff was bound
to present expert opinion evidence in the present case
with regard to causation.
‘‘The mere fact that a witness has been qualified as
an expert in a particular field does not itself give the
expert information needed to state an opinion relevant
to the case. There remain two additional elements
before that opinion may be rendered . . . [a] knowl-
edge of the facts of the case, to which the expert’s
training and experience may then be applied [and] . . .
[t]he perceived reliability or trustworthiness of the prin-
ciples and theories from the field of expertise which
the expert employs to render the opinion . . . .
‘‘The opinions of experts must be based upon facts
which have been proved, assumed, or observed, and
which are sufficient to form a basis for an intelligent
opinion. . . . Opinion evidence should be accompa-
nied by a statement of the facts on which it is based,
and as a general rule, an expert must state facts from
which the jury may draw [its] conclusions. Conversely,
a witness qualified as an expert may not only testify as
to the conclusions based upon his skill and knowledge,
but also as to the facts from which such conclusions
are drawn. . . . [W]here the factual foundation for an
expert opinion is not fully disclosed, it cannot be
assailed upon appeal if accepted by the jury as sufficient
in weight and credibility to support the verdict. . . .
‘‘The fact that an expert opinion is drawn from
sources not in themselves admissible does not render
the opinion inadmissible, provided the sources are fairly
reliable and the witness has sufficient experience to
evaluate the information. . . . An expert may base his
or her opinion on facts or data not in evidence, provided
they are of a type reasonably relied on by experts in
the particular field. . . . This is so because of the sanc-
tion given by the witness’s experience and expertise.
. . . An expert may give an opinion based on sources
not in themselves admissible in evidence, provided (1)
the facts or data not in evidence are of a type reasonably
relied on by experts in the particular field, and (2) the
expert is available for cross-examination concerning his
or her opinion.’’ (Citations omitted; internal quotation
marks omitted.) National Publishing Co. v. Hartford
Fire Ins. Co., 94 Conn. App. 234, 251–53, 892 A.2d 261(2006), rev’d on other grounds, 287 Conn. 664, 949 A.2d
1203 (2008); see also Conn. Code Evid. § 7-4.
Feldman testified about the types of information on
which he relied in forming his opinion that defective
Shotcrete caused the cracking at issue in all of the
pools. With regard to some of the pools, he testified
that the information on which he relied included his
firsthand observations of damage and the results of
various scientific testing of concrete. With regard to
other pools, he testified that the information on which
he relied included facts about the condition of the pools
that he learned from others. The evidence does not
reflect that Feldman personally observed, performed
any testing, or in any other manner studied the four
pools at issue in this claim. Feldman testified, however,
that he heard the trial testimony of John Kavanaugh,
who, during the time at which the pools at issue were
constructed, worked at the defendant’s concrete plant.
Kavanaugh testified with regard to the deficient manner
in which the defendant customarily manufactured and
transported Shotcrete to job sites, including the loca-
tion of the four pools at issue in this claim.
The plaintiff’s attorney asked Feldman: ‘‘To a reason-
able degree of structural engineering probability, based
upon what you observed at the pools, the nature of the
cracks, the size of the cracks, the pattern of the cracks,
the shoot date of the pools, the core testing performed,
and the commonality of the use of Paramount Shot-
crete, did the subject pools [sustain] excessive shrink-
age cracks due to nonuniform and different Shotcrete
mixes used in the same pool structures?’’ Feldman
replied, ‘‘Yes.’’
During cross-examination, the defendant’s attorney
asked Feldman about the four pools at issue in this
claim, specifically, whether he had ever visited and
inspected the four pools personally. Feldman testified
that he had not, but that someone had told him that
these pools exhibited the same types of cracks as the
other pools made with the defendant’s Shotcrete that
he personally had studied. In response to questions
concerning Feldman’s ability to render an opinion about
pools that he had not examined personally, Feldman
stood by his earlier opinion that defective Shotcrete
had caused the cracking in all of the pools. During
redirect examination, the plaintiff’s attorney asked
Feldman to render an expert opinion on the basis of
hypothetical facts that were supported by the evidence
presented at trial. The plaintiff’s attorney asked Feld-
man: ‘‘To a reasonable degree of engineering probabil-
ity, if you take everything that you learned from your
studies, regarding these pools, even if you didn’t go to
a particular pool such as the pool that we just discussed
where there were repairs and photographs of repairs,
if you combined your knowledge of the general timing
of the shoot, engineer designs involved, the materials
coming from the same concrete plant, similar cracks
and crack patterns being reported and/or actually being
observed by you, can you say to a reasonable degree of
engineering probability that the cause of the excessive
cracking in this case was the bad and inconsistent Shot-
crete material coming out of [the defendant’s] plant at
that general time period?’’ (Emphasis added.) Feldman
replied, ‘‘Yes.’’
Feldman identified the factual basis for his opinion,
revealing that he relied on many types of information
about the pools in question, including, but not limited
to, certain trial testimony concerning the Shotcrete
manufactured by the defendant that was common to
all of the pools at issue in this case. He had studied
some of the pools personally, but testified that he relied
on statements from a third party in assessing the defec-
tive condition of some of the pools at issue. The defen-
dant has not demonstrated that, as a matter of law,
Feldman’s testimony was not supported by a sufficient
factual basis because it was based on facts perceived or
made known to him by others. At length, the defendant
cross-examined Feldman concerning the facts on which
he had relied. Any weaknesses that such questions may
have exposed in Feldman’s testimony were fodder for
the jury’s consideration in evaluating his testimony.
The defendant appears to suggest that Feldman’s
opinion was legally insufficient because, with regard to
the four pools at issue, he neither observed the pools
personally nor conducted any testing with regard to
them. This requirement, however, does not find support
in our law. As previously discussed, an expert witness
need not personally study or observe conditions, but
may apply his or her specialized knowledge to facts
perceived or made known to him at or before the pro-
ceeding. Conn. Code Evid. § 7-4 (b). With regard to the
pools he did not study personally, the evidence reflects
that Feldman did not base his opinion on the expert
opinion of others, but on material information that
he learned from others concerning both the physical
condition of the pools and the nature of the concrete
used in their construction. The expert’s reliance on
information of such character does not necessarily
undermine the reliability of the expert opinion. See,
e.g., Milliun v. New Milford Hospital, 310 Conn. 711,
729–30, 80 A.3d 887 (2013) (reliable medical opinion
may be based on inadmissible hearsay).
Moreover, we reiterate that an expert witness may
render an opinion on the basis of hypothetical facts that
fairly are supported by the evidence. Absent objection,
Feldman provided an expert opinion that was based
on hypothetical questions, as previously set forth. The
defendant has not demonstrated that these questions
were not fairly based on facts in evidence. See Conn.
Code Evid. § 7-4 (c) (expert witness may give opinion
in response to hypothetical questions). On the basis of
the foregoing analysis, we conclude that the jury fairly
could have reached the liability determination that it
did.
B
The second part of the defendant’s claim relates to the
jury’s assessment of compensatory damages. Relying on
the arguments it advanced before the trial court, the
defendant claims that, in several respects, the evidence
was insufficient to support the jury’s award of damages.
The defendant argues that the court improperly upheld
the jury’s verdict because (1) with regard to four pools,8
the jury awarded the plaintiff damages absent any evi-
dence that the plaintiff had performed any repair work
or, thus, sustained any damages; (2) with regard to four
pools9 for which respective homeowners had reached
settlements with the parties by the time of trial and
thereby established the only possible and proper mea-
sure of the plaintiff’s damages, the jury awarded dam-
ages that exceeded the amounts to which the plaintiff
was entitled; (3) the verdict reflects that the jury
awarded full replacement costs for all nineteen pools,
yet the evidence demonstrated that only six pools argua-
bly needed to be replaced; and (4) the jury’s verdict,
which was ten cents less than the gross damages figure
on which the plaintiff relied in argument, reflects that
the jury improperly included an award for lost profits
in its calculation of damages in contravention of the
court’s instructions. We agree with the defendant that
the verdict reflects error on the part of the jury and
that the jury’s award of damages must be overturned.
Previously in this opinion, we set forth the details
related to the jury’s verdict. Plainly, the amount of dam-
ages awarded by the jury exceeded the damages sug-
gested during closing argument by the plaintiff’s
attorney. Further, the completed interrogatories reflect
that, for purposes of awarding damages, the jury treated
each of the nineteen pools identically.
Essentially, the plaintiff urges us to view the defen-
dant’s claim as being premised on a flawed interpreta-
tion of the verdict. The plaintiff argues that, at trial, it
suggested a gross award of damages that was based
on the evidence and totaled $2,760,208. As discussed
previously in this opinion, this amount was set forth
during the plaintiff’s closing argument and was reflected
on the chart used as a visual aid during closing argu-
ment. The plaintiff argues that the jury’s overall award
of $2,760,207.90, just ten cents less than this gross award
that its counsel suggested in argument, demonstrates
that the jury agreed with the plaintiff’s overall interpre-
tation of the evidence and its evaluation of reason-
able damages.
The plaintiff acknowledges, however, that ‘‘the jury
may have taken a mathematical ‘shortcut’ by dividing
an overall fair verdict, which was supported by the
evidence [and suggested by the plaintiff’s attorney], by
the total number of pools to respond to the interrogato-
ries, which resulted in a net award [for damage] to each
pool of $145,274.10.’’ The plaintiff, in essence, urges us
to reject the defendant’s claim because ‘‘the jury’s intent
was clear and manifested in its verdict. The jury deter-
mined that the defendant was 100 percent liable for the
damages caused to each of the nineteen pools. The
gross award of damages matched almost identically the
gross amount of documented past repair costs, the 2005/
2006 prices of the thirteen pools for which replacements
were sought, and the supplemental demolition and land-
scape restoration costs. The jury’s mathematical short-
cut in allocating the gross fair award is at best a defect
in ‘form’ and the verdict must be deemed intelligible
based on the evidence, arguments, and totality of this
case.’’ The plaintiff also suggests that we should look
with disfavor on the present claim because the defen-
dant did not object to the form in which the jury
returned its verdict at the time it was returned, and did
not seek a remittitur.
As a starting point of our analysis, it does not appear
to this court that the jury’s verdict was defective as a
matter of form. ‘‘We note that if a verdict is defective
in form alone, rather than as a matter of law, the parties
should have objected at a time when the mistake could
have been corrected.’’ Tisdale v. Riverside Cemetery
Assn., 78 Conn. App. 250, 257–58, 826 A.2d 232, cert.
denied, 266 Conn. 909, 832 A.2d 74 (2003). ‘‘A verdict
is not defective as a matter of law as long as it contains
an intelligible finding so that its meaning is clear. . . .
A verdict will be deemed intelligible if it clearly mani-
fests the intent of the jury.’’ (Citation omitted; internal
quotation marks omitted.) Id., 257.
There is no claim regarding the propriety of the inter-
rogatories or the verdict forms provided to the jury. In
accordance with the court’s instructions, the jury fully
completed the interrogatories and verdict forms with
which it was provided. Nothing on the face of the com-
pleted interrogatories or verdict forms suggests that
the jury did not perform its role, insofar as it related
to reporting its verdict, properly. Consistent with its
completed interrogatories, the jury completed the plain-
tiff’s verdict form, awarding $2,760,207.90 in damages.
Thus, the verdict forms returned by the jury were com-
plete, consistent, and intelligible. The verdict appeared
to manifest the will of the jury.10
In several respects, however, the defendant’s claim
exposes questions related to the propriety of the jury’s
damage award. The court properly instructed the jury
that ‘‘[i]njuries and losses for which the plaintiff should
be compensated include those it has suffered up to and
including the present time, and those it is reasonably
likely to suffer in the future as a proximate result of
the defective product.’’ In this product liability action,
the plaintiff reduced to exact figures the damages it
sought. Thus, the plaintiff presented detailed evidence
of the cost of repairs it had undertaken with regard to
pools for which it sought the recovery of such costs.
Likewise, the plaintiff presented evidence of what it
would cost, at the time of trial, to replace the pools for
which it sought replacement costs. Additionally, the
plaintiff presented evidence of what it deemed miscella-
neous costs related to the litigation. In argument, the
plaintiff presented these figures to the jury as the extent
of its damages that were proven by the evidence. This
was not a case in which the jury was asked to consider
a type of injury for which neither the parties nor the
court could readily suggest either an award of damages
or a method by which to calculate such damages.
The plaintiff asserts that the overall award of dam-
ages is proper because it nearly mirrored the gross
amount of damages that were permitted by the evidence
and sought by the plaintiff. The plaintiff does not appear
to suggest that the jury’s finding of damages for each
pool is supported by the evidence. Instead, the plaintiff
appears to invite us to disregard the finding of damages
for each pool, as set forth in the completed interrogato-
ries, and asks that we evaluate the verdict by looking
to the overall award of damages. As stated previously
in our discussion, the plaintiff posits that the completed
interrogatories should be viewed as a harmless ‘‘mathe-
matical shortcut’’ by which the jury apportioned its
award of damages among the nineteen pools at issue.
Contrary to the plaintiff’s arguments, there is no
authority for the proposition that we should not inter-
pret the jury’s interrogatories literally, that is, as an
accurate reflection that the jury determined there to be
and awarded the plaintiff $145,274.10 in damages for
each pool. There is no basis in law for this court to
disregard the jury’s findings therein as we undertake
judicial review of the jury’s verdict. ‘‘[T]he purpose of
interrogatories [is] to elicit a determination of material
facts, [and] to furnish the means of testing the correct-
ness of the verdict rendered, and of ascertaining its
extent.’’ (Internal quotation marks omitted). Viera v.
Cohen, 283 Conn. 412, 449–50, 927 A.2d 843 (2007). The
assessment of damages was contested at trial, and the
jury was called upon to set forth its findings as to the
damages, if any, related to each pool. ‘‘Special interroga-
tories test the jury’s general verdict against its conclu-
sions as to the ultimate controlling facts. Special
questions are propounded to a jury to bring out some
or all of the determinative facts which should be consid-
ered in the formation of a jury’s general verdict. Such
questions . . . may show how closely, or otherwise,
the jury has followed the trial court’s instructions
. . . .’’ (Footnotes omitted.) 75B Am. Jur. 2d 383 Trial
§ 1590 (2007). ‘‘A special verdict, finding or answer must
be construed in the light of the surrounding circum-
stances. It is to be construed in the light of, and in
connection with, the pleadings, the issue or question
submitted, the instructions, jury interrogatories, and
. . . the evidence.’’ 89 C.J.S. Trials § 1177 (2012).
The record supports the plaintiff’s observation that,
given the size of the jury’s award and the fact that it is
a mere ten cents less than the gross amount of damages
suggested by the plaintiff’s attorney during closing argu-
ment, it appears that the jury awarded damages consis-
tent with that gross damages figure and, as nearly as
practicable, divided that figure by nineteen to arrive at
its findings of damages for each pool. This is problem-
atic for a number of reasons. First, such an approach to
completing the interrogatories would have disregarded
the court’s instructions that the jury find damages sepa-
rately for each pool and record its separate findings
on the interrogatory forms. Second, our review of the
evidence does not explain or support the jury’s identical
findings of damages for all nineteen pools, particularly
where the plaintiff had carefully detailed in the course
of argument what it believed to be the full extent of its
claimed and proven damages with regard to each pool.
Third, the court instructed the jury that lost profits were
not a proper component of damages in this case, yet
the gross amount of damages explicitly suggested by
the plaintiff’s attorney included lost profits. Addition-
ally, the gross damages figure suggested by the plain-
tiff’s attorney included miscellaneous expenses for
which the jury, in its responses to the interrogatories,
made a finding of zero dollars.
Setting aside the impossibility of reconciling the
amounts of damages awarded for the nineteen pools
with the amounts sought by the plaintiff, the plaintiff
suggests that the jury was not bound by the gross dam-
ages figure suggested by its attorney during argument,
which, adjusted to exclude a claim for lost profits, was
$2,365,562. In arguing that a higher gross damages
award was not necessarily improper, the plaintiff relies
on the principle, reflected in the court’s instructions,
that the arguments of counsel are not evidence and that
the determination of damages is within the province of
the jury. The fact remains, however, that with regard
to six pools for which the plaintiff did not seek any
future damages, the jury’s award exceeded the maxi-
mum award made possible by the evidence of past
damages. For four of these pools, the parties had
reached settlements prior to trial and the plaintiff asked
only for the cost of prior repairs that had been under-
taken, which, in each case, was far less than the
$145,274.10 awarded by the jury.11 With regard to several
other pools, the plaintiff sought future damages in the
form of replacement costs, yet the amounts awarded
exceeded the amounts sought by the plaintiff. At trial,
the plaintiff presented evidence that the pools that
needed to be replaced in the future could be replaced
at the cost for which the plaintiff initially constructed
the pools. Evidence of these costs was presented, yet
our review of such evidence does not shed light on or
explain the jury’s uniform findings of damages. Further,
as the defendant argues, this evidence appears to sup-
port an award of future damages that was less, not
more, than that suggested by the plaintiff’s counsel in
argument. The plaintiff also presented evidence that it
would cost an additional $25,000 to $35,000 to remove
each of the damaged pools. Yet, the plaintiff suggests
that the jury, having reviewed these materials in evi-
dence, reasonably could have found that replacement
costs actually exceeded these amounts. Insofar as the
jury was bound to base its findings on the evidence,
rather than speculation, such an argument is not per-
suasive.
Here, there is no rational view of the evidence that
supports the identical finding of damages with regard
to each of the nineteen pools at issue. These findings
reflect that the jury did not make an independent assess-
ment of damages with regard to each pool. Further-
more, the jury made a total award of damages that
nearly matched the gross damages figure suggested by
the plaintiff’s counsel before subtracting lost profits.
For the reasons previously set forth, such an award is
not supported by the evidence. The completed interrog-
atories, as well as the overall amount of the award,
undermine confidence in the manner in which the jury
assessed damages overall; they reflect that the jury
either failed or declined to follow the court’s instruc-
tions. For these reasons, we conclude that the court
abused its discretion in failing to set aside the verdict
solely as to the jury’s assessment of damages. See
Schroeder v. Triangulum Associates, 259 Conn. 325,
332, 789 A.2d 459 (2002).
II
Next, we address the defendant’s claim that the court
improperly awarded the plaintiff punitive damages. The
defendant argues that: (1) the act does not contemplate
an award of punitive damages when a plaintiff’s cause
of action is based on property damages only; (2) the
evidence did not permit such an award in the present
case because there was no evidence that the defendant
acted in reckless disregard for the safety of product
users, consumers or others who were injured by the
Shotcrete; and (3) the amount of punitive damages
awarded exceeded the maximum possible award of
punitive damages that was supported by the evidence.
We will address each aspect of the claim, in turn.
A
First, the defendant challenges the propriety of the
award of punitive damages on the ground that the act
does not contemplate an award of punitive damages
when a plaintiff’s cause of action is based on property
damages only. Furthermore, the defendant argues that,
even if punitive damages may be awarded when a plain-
tiff’s cause of action is based on property damages only,
such damages may be awarded only if there was a risk
that consumers or others could sustain bodily injury
by means of the defective product. The defendant’s
arguments are not persuasive.
General Statutes § 52-240b provides: ‘‘Punitive dam-
ages may be awarded if the claimant proves that the
harm suffered was the result of the product seller’s
reckless disregard for the safety of product users, con-
sumers or others who were injured by the product. If the
trier of fact determines that punitive damages should be
awarded, the court shall determine the amount of such
damages not to exceed an amount equal to twice the
damages awarded to the plaintiff.’’ Several statutorily
defined words applicable to the act are relevant.
‘‘ ‘Harm’ includes damage to property, including the
product itself, and personal injuries including wrongful
death. As between commercial parties, ‘harm’ does not
include commercial loss.’’ General Statutes § 52-572m
(d).12 A ‘‘ ‘[p]roduct liability claim’ includes all claims
or actions brought for personal injury, death or property
damage caused by the manufacture, construction,
design, formula, preparation, assembly, installation,
testing, warnings, instructions, marketing, packaging or
labeling of any product. . . .’’ General Statutes § 52-
572m (b).
There is no dispute that the plaintiff’s cause of action
is based on a claim of property damage. In rejecting
the defendant’s interpretation of the act in its thorough
memorandum of decision concerning punitive dam-
ages, the court reasoned that the legislature intended
to permit an award of punitive damages in connection
with product liability claims involving only property
damage. The court relied on its interpretation of the
relevant statutory language previously set forth, as well
as a Superior Court decision that reached the same
legal conclusion, American Airlines, Inc. v. National
Automatic Products Co., 39 Conn. Supp. 269, 272, 477
A.2d 171 (1984).13
The issue presents a question of statutory interpreta-
tion that warrants our plenary review. See Felician
Sisters of St. Francis of Connecticut, Inc. v. Historic
District Commission, 284 Conn. 838, 847, 937 A.2d 39(2008). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .’’
(Citation omitted; internal quotation marks omitted.)
Cogan v. Chase Manhattan Auto Financial Corp., 276
Conn. 1, 7, 882 A.2d 597 (2005).
Like the trial court, we conclude that a fair reading
of the governing statute, § 52-240b, in conjunction with
the relevant definitional provisions expressly made
applicable to that statute and previously set forth, yields
a plain and unambiguous interpretation that the statute
permits an award of punitive damages in connection
with a product liability claim involving damage to prop-
erty only. The defendant goes on to argue that even if
§ 52-240b permits an award of punitive damages in the
context of a claim based on property damage only, the
text of the statute reflects that such damages must arise
in a case in which there was, in fact, a risk that product
users, consumers, or others could sustain bodily injury
by means of the defective product. The defendant
argues that, here, ‘‘the plaintiff . . . presented no evi-
dence that the safety of consumers was ever at risk or
that injury to consumers was even a possibility.’’
The defendant’s argument is based on the language
of § 52-240b, which provides: ‘‘Punitive damages may
be awarded if the claimant proves that the harm suf-
fered was the result of the product seller’s reckless
disregard for the safety of product users, consumers
or others who were injured by the product. . . .’’
(Emphasis added.) The defendant suggests that the use
of the words ‘‘safety’’ and ‘‘injured’’ in the statute reflect
that, at the very least, the legislature intended to permit
an award of damages in cases in which bodily injury
was at risk. The defendant argues that, although there
was evidence of property damage, there was no evi-
dence of a risk of bodily injury in the present case.
Under the circumstances of the present case, we need
not determine whether the defendant’s suggested inter-
pretation of § 52-240b, requiring a risk of bodily injury,
is correct. To demonstrate reversible error, it is not
enough for the defendant to demonstrate as a matter
of law that punitive damages may be awarded only if
there was a risk that product users, consumers, or oth-
ers could sustain bodily injury by means of the defective
product. The defendant bears the burden of demonstra-
ting that any claimed error in the court’s interpretation
and application of the law affected the verdict returned
in the present case. ‘‘Whether an error is harmful or
harmless depends upon whether it affected the verdict.’’
Beinhorn v. Saraceno, 23 Conn. App. 487, 494 n.3, 582
A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d
1233 (1991).
Thus, to demonstrate reversible error, the defendant
must demonstrate that the jury did not base or was
precluded from basing its award on a finding that bodily
injury was at risk, but the record does not support such
an interpretation of the jury’s findings. When the court
instructed the jury concerning punitive damages under
the act, it cannot be said to have limited the jury to
consider either property damage or bodily injury.
Instead, the court instructed the jury by referring to
the statutory language of § 52-240b that, as previously
discussed, refers to ‘‘the product seller’s reckless disre-
gard for the safety of product users, consumers or oth-
ers who are injured by the product.’’14 The defendant
did not file a request to charge related to the issue of
punitive damages, did not take any exceptions to the
court’s charge, and, on appeal, does not attempt to
challenge the propriety of the court’s charge. Moreover,
the interrogatories presented to the jury did not require
it to provide findings in this specific regard concerning
the facts on which it based its punitive damage award.15
Thus, with regard to this discrete issue concerning the
nature of the risk posed by the defendant’s product,
the jury returned what may be deemed a general verdict.
Consequently, the record does not provide a basis on
which to determine whether or not the jury based its
punitive damage award on a finding that bodily injury
was at risk. Because the record does not demonstrate
that the verdict resulted from the issue that the defen-
dant seeks to adjudicate on appeal, we need not resolve
that issue.16
Additionally, contrary to the stated premise of the
defendant’s argument, the evidence readily supported
a finding that its defective product risked causing bodily
injury to product users. There was ample evidence of
substantial cracking in various surface areas of pools
that were constructed with Shotcrete manufactured by
the defendant, such as stairs, benches, swim outs, walls,
and floors. The undisputed evidence reflects that the
Shotcrete at issue was intended to be used in such
recreational swimming pools, which made it reasonable
to infer that persons were likely to come in contact
with the various surface areas of the pools. The Shot-
crete was delivered to the pool sites by the defendant.
On the basis of this evidence, we readily conclude that
the evidence reasonably supported a finding by the jury
that the defendant had acted in reckless disregard of
a foreseeable risk that others could sustain bodily injury
by means of the defective Shotcrete. For the foregoing
reasons, we conclude that this aspect of the defendant’s
claim is unavailing.
B
Next, the defendant argues that the evidence did not
permit an award of punitive damages in the present
case because there was no evidence that the defendant
acted in reckless disregard for the safety of product
users, consumers or others who were injured by the
Shotcrete. We disagree.
As previously stated in this opinion, the jury in com-
pleting its interrogatories made a finding that the plain-
tiff had proven by a preponderance of the evidence that
the defendant acted with a reckless disregard for the
safety of product users, consumers or others who were
injured by the product. In its memorandum of decision
concerning punitive damages, the court observed that
its role with regard to punitive damages was limited to
determining the amount of the punitive damages award.
The court stated: ‘‘While the jury found that the plaintiff
. . . had proven its entitlement to punitive damages,
the amount itself is a responsibility and a duty reserved
to the court.’’ Nonetheless, in its lengthy memorandum
of decision concerning punitive damages, the court did
not merely address the defendant’s contention, dis-
cussed in part II A of this opinion, that punitive damages
were not permitted as a matter of law and determine
the amount of its damage award, but it purported to
make findings concerning the conduct of the defendant
on the basis of the evidence presented at trial. Also, it
did so after it had summarily denied the defendant’s
motion to set aside the verdict. Ultimately, the court
concluded that ‘‘a reasonable person could readily
arrive at the same conclusion [with respect to the issue
of punitive damages as that] agreed upon by this jury.’’
In this portion of its appeal, the defendant appears
to focus on these findings made by the court, but also
argues generally that the evidence, ‘‘at best demon-
strates that the owners of [the defendant] may have
been less involved in the day-to-day operations of [the
defendant’s Shotcrete] facility than they might have
been.’’ The defendant asserts that the plaintiff did not
present evidence that it acted ‘‘more than negligently
with respect to the operation of the plant and the deliv-
ery of the Shotcrete to the plaintiffs. As a result, the
award of punitive damages should be set aside.’’
Insofar as this aspect of the defendant’s appeal chal-
lenges the propriety of the finding that it acted with
a reckless disregard for the safety of product users,
consumers or others who were injured by the defen-
dant’s product, it essentially challenges the court’s
denial of its motion to set aside the finding of the jury.
The record of the trial proceedings reflects that the
defendant raised the evidentiary claim herein in connec-
tion with that motion. Although the court, in the context
of its memorandum of decision awarding punitive dam-
ages, referred to the propriety of that finding and the
evidence that supported it, we will regard the claim as
challenging the court’s summary denial of the motion
to set aside the verdict. The applicable standard of
review is set forth in part I of this opinion.
We conclude that the evidence supported the jury’s
finding of fact. The statute expressly provides that puni-
tive damages may be awarded ‘‘if the claimant proves
that the harm suffered was the result of the product
seller’s reckless disregard for the safety of product
users, consumers or others who were injured by the
product. . . .’’ General Statutes § 52-240b. With regard
to the reckless disregard requirement, this court has
stated: ‘‘As a general matter, [p]unitive damages . . .
are awarded when the evidence shows a reckless indif-
ference to the rights of others or an intentional and
wanton violation of those rights. . . . In fact, the flavor
of the basic requirement to justify an award of punitive
damages is described in terms of wanton and malicious
injury, evil motive and violence. . . . In a products lia-
bility action, [p]unitive damages may be awarded if the
claimant proves that the harm suffered was the result
of the product seller’s reckless disregard for the safety
of product users, consumers or others who were injured
by the product. . . . As a general rule, punitive dam-
ages may be awarded only for outrageous conduct. . . .
The conduct must be outrageous, either because the
defendant’s acts are done with an evil motive or because
they are done with reckless indifference to the interests
of others.’’ (Citations omitted; internal quotation marks
omitted.) Ames v. Sears, Roebuck & Co., 8 Conn. App.
642, 655, 514 A.2d 352, cert. denied, 201 Conn. 809, 515
A.2d 378 (1986).
‘‘The occasion for awarding punitive damages is quite
different from that of awarding compensatory damages
under our long-standing rules governing the award of
punitive damages. . . . Punitive damages are awarded
when the evidence shows a reckless indifference to the
rights of others or an intentional or wanton violation
of those rights. . . . If awarded, they are restricted to
cost of litigation less taxable costs of the action. . . .
Moreover, punitive damages generally have the flavor
of punishment against a defendant for the quality of his
conduct and of deterrence to a defendant or others
against such conduct in the future. . . . Such damages
are, therefore, not doctrinally duplicative of compensa-
tory damages, but rather serve special, limited purposes
other than compensation.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Cham-
pagne v. Raybestos-Manhattan, Inc., 212 Conn. 509,
532–33, 562 A.2d 1100 (1989).
The defendant suggests in argument that the jury’s
finding is unsupportable because there was no evidence
that it intentionally violated the plaintiff’s rights. Yet,
as previously stated, reckless disregard may be proven
by evidence of conduct by a defendant that is outra-
geous because it was done with reckless indifference
to the interests of others. There was ample evidence
concerning the defendant’s principals, employees, plant
operations, procedures, equipment and methods of
delivery. On the basis of the evidence presented at trial,
the jury reasonably could have found that the defendant
lacked trained employees and quality control proce-
dures to produce and deliver quality Shotcrete consis-
tently. The evidence supported a finding that persons
in positions of control for the defendant even lacked a
basic understanding of how Shotcrete was manufac-
tured and were seemingly unconcerned either with pro-
ducing a product that was manufactured and delivered
according to industry standards or with how their pat-
tern of conduct would negatively affect the interests
of the consumers who purchased this critical building
material from their company.
In its decision concerning punitive damages, the
court aptly discussed evidence that is relevant to our
analysis. The court stated in relevant part: ‘‘Given [the]
essential function for concrete in its several manifesta-
tions, and the readily foreseeable damages wrought by
defectively formulated and/or manufactured concrete,
the court was surprised to learn during the course of
the trial that some principals of the defendant . . .
demonstrated a cavalier or indifferent attitude toward
their company’s product offered for sale. This attitude
was exemplified and borne out by the sworn testimony
of some of the officers of [the defendant], Richard and
Grace Vona, as well as Carlo Vona, each of whom pro-
fessed ignorance in the key areas like the specifics of
the concrete manufacturing process itself.’’
The court went on to observe: ‘‘John Kavanaugh was
formerly employed as a concrete batch mixer and deliv-
ery driver for [the defendant] after a short earlier stint
working at Paramount Stone. He worked for the Vonas
[at the defendant] for approximately two and one-half
years. During that time, although not required by law,
the defendant concrete plant never met the specifica-
tions for industry certification by the American Con-
crete Institute. Despite a trip to a Las Vegas concrete
convention with Richard Vona, [a vice president of the
defendant], and his attendance at two other classes,
Kavanaugh did not consider himself properly trained
as a batch mixer by [the defendant]. Nonetheless, it
became his job to ensure that the raw materials used
in making Shotcrete were properly mixed in the defen-
dant’s trucks. Kavanaugh testified to problems and
shortcomings with the defendant’s equipment. These
included the lack of a ‘moisture meter,’ which could
accurately measure water content in the sand the com-
pany stored outdoors, and the lack of any drum count-
ers, which measure the number of revolutions made by
the rotating concrete drums of the defendant’s mixing
trucks.17 Certain maintenance issues at the plant and
with the concrete trucks also adversely affected the
finished product sold by the defendant to the plaintiff.
The jury also heard deposition testimony of Steve Rivi-
ere, the former president of [the defendant], who left his
job at the enterprise abruptly. It reinforced the picture
painted by both Kavanaugh and the circumstantial evi-
dence of a small, poorly run and poorly equipped com-
pany lacking quality control, adequate staff and training
and equipment maintenance, leading to the delivery of
an inconsistent concrete product, all to the plaintiff’s
detriment. . . .
‘‘[The evidence demonstrated that] [c]oncrete is prop-
erly made with concrete sand, which is a sand formu-
lated for concrete and containing three-eighths inch
stone. However, Kavanaugh . . . testified that [the
defendant] also used masonry sand in its concrete
mixes on a random basis, a sand which has a different
granularity and consistency. Without other adjustments
to the mix, masonry sand and concrete sand therefore
are not interchangeable in Shotcrete, and Kavanaugh’s
testimony was supported by the evidence, not only in
the faults in the cracked Shotcrete, but by the defendant
company’s own internal documentation obtained by the
plaintiff during discovery. A delivery ticket showed
masonry sand delivered to [the defendant] on more
than one occasion. In light of all the other evidence of
defective Shotcrete, the jury obviously chose not to
credit the defense explanation that this masonry sand
was actually delivered to Paramount Stone [which was
located] across the street [from the defendant’s plant].’’
The court went on to observe, accurately, that the
trial testimony of Richard Vona, the defendant’s vice
president; Grace Vona, the defendant’s owner; and
Carlo Vona, a longtime mason who had some involve-
ment in the defendant and is married to Grace Vona,
was damaging to the defendant’s case. Richard Vona
testified, in part, that after coming up with the idea to
create the defendant company in 2003, he only visited
the defendant’s plant on a couple of occasions and did
not even discuss the operations of the company with
others. He testified that he lacked a basic understanding
of how Shotcrete was made. Despite evidence that she
was involved intimately in the defendant’s finances, the
defendant’s owner, Grace Vona, testified that she had
never visited the defendant’s plant and was unaware if
the defendant ever was profitable. ‘‘The court is con-
vinced, and the jury likely believed, that once the cracks
in all the pools came to light, the Vonas were . . .
eager to distance themselves from their own concrete
company and what went on there as a way of distancing
themselves from any liability for the defendant’s defec-
tive Shotcrete, the Shotcrete that went into the nineteen
cracked pools built by the plaintiff.
‘‘The jury also heard testimony from Mel Thorne,
who has served as the chief operating officer of [the
defendant] since the 2009 departure of Steve Riviere.
While not employed by the defendant at the time of the
manufacture and sale of the defective Shotcrete used
by the plaintiff in nineteen of its pools, Thorne testified
that he has been unable to verify the existence of any
formal quality control process used by the defendant
company during that time frame.’’
On the basis of the foregoing evidence, accurately
set forth by the trial court, we readily conclude that
the evidence reasonably permitted a finding that the
defendant, through its officers and employees, acted in
an outrageous manner. The evidence showed that the
defendant was not merely negligent or inadvertent in its
manufacturing process, but that its business operations
reflected a wholesale lack of concern for the interests
of the purchasers of its product, which was a critical
building material in pools. Accordingly, we reject the
defendant’s claim that the evidence did not permit a
finding of reckless disregard on its part.
C
Last, as it did before the trial court, the defendant
argues that the court’s punitive damage award was
improper because it exceeded the amount of punitive
damages that was supported by the evidence. We agree
with the defendant that the court improperly calculated
punitive damages.
The court held a hearing on the matter of its award
of punitive damages. At that hearing, the attorneys rep-
resenting the plaintiff, Thomas P. O’Dea, Jr., and Ray-
mond J. Plouffe, argued in support of an award of
punitive damages in this case. Plouffe and O’Dea pre-
sented the court with affidavits concerning their attor-
ney’s fees as well as redacted bills concerning legal
services rendered in the course of their representation
of the plaintiff in this matter. By way of a supplemental
affidavit concerning attorney’s fees dated April 15, 2011,
O’Dea averred that he had expended 1360 hours on the
present case. He stated: ‘‘My customary hourly rate for
services rendered is $325.00. In this matter we agreed
to a discounted rate of $150 per hour for my rate.’’
Additionally, he averred, in relevant part, that these
figures did not include time expended after March 1,
2011, which was estimated to be twenty hours. There
was no objection to this submission, and the defendant
did not dispute the accuracy of the representations
therein.
In its memorandum of decision, the court found that
attorney’s fees attributable to Plouffe and another attor-
ney associated with his law firm were $252,392.50. On
appeal, the defendant does not challenge this finding.
With respect to O’Dea, the court stated: ‘‘Attorney O’Dea
stated in his affidavit that his customary hourly rate for
legal services is $325, and that in this matter he agreed
with the plaintiff to a discounted rate of $150 per hour.
However, this was a discount intended to inure to the
benefit of the plaintiff, not the defendant. For purposes
of this order, the court finds that counsel worked a
minimum of 1360 hours on these cases, and the court
also finds that the regular hourly rate of $325 for Attor-
ney O’Dea’s services is both reasonable and appro-
priate. The attorney’s fees for Attorney O’Dea are
therefore found to be $442,000.’’
The defendant asserts that the award of $442,000
cannot stand because there was no evidence that O’Dea
ever charged the plaintiff this amount for attorney’s
fees. Instead, the defendant argues, the evidence ‘‘sup-
ports at most an award of $204,000,’’ representing 1360
hours billed at the hourly rate that O’Dea represented
he had billed the plaintiff, $150 per hour. The defendant
argues that the court’s award of more than the plaintiff’s
actual litigation expenses exceeded a proper measure
of punitive damages applicable in a case such as the
present case and amounted to an arbitrary deprivation
of its property in violation of the due process clause
of the federal constitution.
In determining the proper method by which to calcu-
late damages in the present case, the court observed
that, beyond stating in § 52-240b that punitive damages
‘‘[shall] not . . . exceed an amount equal to twice the
damages awarded to the plaintiff,’’ the legislature did
not provide a method by which to calculate such dam-
ages under the act. The court, relying on precedent
including Lynn v. Haybuster Mfg., Inc., 226 Conn. 282,
289–90, 627 A.2d 1288 (1993), Berry v. Loiseau, 223
Conn. 786, 825–27, 614 A.2d 414 (1992), and Arnone v.
Enfield, 79 Conn. App. 501, 521, 831 A.2d 260, cert.
denied, 266 Conn. 932, 837 A.2d 804 (2003), reasoned
that it was proper to follow the common-law rule lim-
iting punitive damages to the plaintiff’s litigation
expenses minus taxable costs.
On appeal, neither party takes issue with the court’s
legal determination that, faced with legislative silence
as to the proper method of calculating punitive damages
under the act, it is appropriate to follow the common-
law rule and award the plaintiff its litigation expenses,
less taxable costs. For this reason, we do not adjudicate
the issue.18 The issue, as framed by the defendant, is
whether the court properly assessed the plaintiff’s litiga-
tion expenses in accordance with the evidence.
In determining whether the court properly calculated
damages under the common-law rule, we begin by
observing that in Berry v. Loiseau, supra, 223 Conn.
827, our Supreme Court, in upholding the viability of
the common-law rule, stated: ‘‘In Waterbury Petroleum
Products, Inc. v. Canaan Oil & Fuel Co., [193 Conn. 208,
236, 477 A.2d 988 (1984)], we declined [an] invitation to
stray from our well settled rule regarding the measure-
ment of punitive damages. We affirmed the continuing
viability of a long line of cases holding that common
law punitive damages serve primarily to compensate the
plaintiff for his injuries and, thus, are properly limited to
the plaintiff’s litigation expenses less taxable costs.
. . . We recognized, moreover, that our rule, when
viewed in the light of the increasing costs of litigation,
also serves to punish and deter wrongful conduct. . . .
In recent years, we have continued to adhere to the
view that our traditional rule remains viable. . . . We
remain convinced that a rule limiting punitive damages
awards to the expenses of litigation less taxable costs
fulfills the salutary purpose of fully compensating a
victim for the harm inflicted on him while avoiding
the potential for injustice which may result from the
exercise of unfettered discretion by a jury.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.); see also Anastasia v. General Casualty Co.
of Wisconsin, 307 Conn. 706, 709 n.2, 59 A.3d 207 (2013);
Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 96–97,
881 A.2d 139 (2005); Matthiessen v. Vanech, 266 Conn.
822, 826 n.5, 836 A.2d 394 (2003). It is clear in our law
that an award of punitive damages ‘‘cannot exceed the
amount of the plaintiff’s expenses of litigation in the
suit, less his taxable costs.’’ Hanna v. Sweeney, 78 Conn.
492, 494, 62 A. 785 (1906); see also Maisenbacker v.
Society Concordia, 71 Conn. 369, 378, 42 A. 67 (1899)
(plaintiff’s expenses limit amount of punitive damages
which can be awarded).
In the present case, the court was presented with
evidence of the plaintiff’s litigation expenses. With
regard to the expenses related to O’Dea, which are the
subject of this claim, O’Dea made averments concerning
the number of hours that he had worked on the present
case (1360 hours) as well as the hourly rate at which
he had agreed to perform legal services for the plaintiff
($150 per hour). O’Dea submitted redacted bills related
to the 1360 hours in legal services rendered by him. He
averred that, with regard to these bills, the Scottsdale
Insurance Company had paid $130,727.99 in fees and
his firm was owed $48,337.91 in fees from either the
Scottsdale Insurance Company or the plaintiff.
The court properly stated that it was permitted to
award punitive damages limited to the plaintiff’s litiga-
tion expenses, less costs. Yet, the court went on to
undertake an independent assessment of the value of
O’Dea’s fees, a type of inquiry that is appropriate when a
court is authorized to award statutory attorney’s fees.19
Thus, it based its award on a lodestar calculation and
considerations related thereto. See Ernst v. Deere &
Co., 92 Conn. App. 572, 576, 886 A.2d 845 (2005).20
The court’s award, therefore, cannot be upheld as
being limited to the plaintiff’s litigation expenses. It is
clear from the evidence presented to the court that the
plaintiff’s expenses were limited to the fees it incurred
pursuant to its agreement with O’Dea, namely, fees
billed at an hourly rate of $150. It was contrary to the
evidence for the court to award the plaintiff litigation
expenses billed at $325 an hour. Accordingly, we
reverse the award of punitive damages and, as part of
the proceedings on remand, order the court to consider
the plaintiff’s litigation expenses in accordance with
the foregoing analysis.21
Additionally, we note that of the 1360 hours of legal
services rendered by O’Dea in the present case as of
the time of the punitive damages hearing, O’Dea averred
that the Scottsdale Insurance Company (Scottsdale)
had paid some of the fees and that the company possibly
owed him more fees. In its memorandum of decision,
the court referred to the legal fees incurred by the
plaintiff in defending ‘‘four other civil suits brought
against it by its customers,’’ and determined that such
fees had been proximately caused by the defendant and
should be borne by the defendant as punitive damages
in this case. Yet, the court neither referred specifically
to Scottsdale nor set forth clear findings concerning
how the services rendered by O’Dea for which he was
paid or expected to be paid by Scottsdale were incurred
in connection with the prosecution of the present case.
Because we remand the case for a new hearing before
the court to reassess the amount of the plaintiff’s puni-
tive damages, the court, on remand, must revisit the
issue and make appropriate findings concerning the
legal services for which fees were incurred by Scotts-
dale and determine whether the fees associated with
such services properly may be included in the plaintiff’s
litigation expenses in the present case.
The judgment is affirmed with respect to the jury’s
findings that the defendant is liable for violating the
act and that the plaintiff is entitled to punitive damages
under the act. The judgment is reversed with respect
to the jury’s award of compensatory damages and the
trial court’s award of punitive damages. The case is
remanded for a hearing in damages before a jury—or
before the court, if the parties agree to waive a hearing
before a jury—on the plaintiff’s claim for compensatory
damages, and for a separate hearing, to be held before
the trial court, to determine, in accordance with this
opinion, the award of punitive damages to which the
plaintiff is entitled under the act.
In this opinion the other judges concurred.
1
The plaintiff’s original complaint, dated May 21, 2009, and its amended
complaint, dated February 14, 2011, were brought solely against Paramount
Concrete, Inc. The judgment from which Paramount Concrete, Inc., appeals
was rendered solely against Paramount Concrete, Inc. During the course of
the litigation, the trial court consolidated this action with other actions that
were brought against the plaintiff by other parties, namely, homeowners
seeking damages arising from defective swimming pools. The record reflects
that settlements were reached in those other actions prior to the commence-
ment of the trial. Because Paramount Concrete, Inc., is the only defendant
in this appeal, we refer to that party as the defendant throughout this opinion.
2
We conclude in part I B of this opinion that the jury’s award of compensa-
tory damages must be set aside. We are not persuaded, however, that the
jury’s error in awarding damages affects or calls into doubt the propriety
of its findings concerning liability or punitive damages. Accordingly, in parts
I A and II B of this opinion, we consider and reject the defendant’s claims
concerning those findings made by the jury. Aside from the issue of damages,
our remand order does not implicate those findings made by the jury.
The jury’s error in awarding compensatory damages does not require us to
set aside the court’s determination that punitive damages were appropriate in
the present case. In part II A of this opinion, we uphold that aspect of the
trial court’s judgment. In part II C of this opinion, however, we agree with
the defendant that the court improperly calculated the punitive damage
award. Accordingly, we will remand the case to the trial court with direction
that it reassess the amount of punitive damages consistent with this opinion
and General Statutes § 52-240b following the hearing in damages.
3
Consistent with its special defenses, the defendant attempted to prove,
among other things, that the plaintiff arranged for delivery of the Shotcrete
under conditions that reduced its strength and usefulness; added water to
the Shotcrete after it was delivered, such that it could not function properly;
utilized persons who did not apply the Shotcrete appropriately; and failed
to utilize a sufficient quantity of steel in the construction of the pools at
issue, such that the Shotcrete did not function in the manner for which it
was intended.
4
Although the plaintiff, in its complaint, alleged damages with regard to
seventeen pools, at trial, the plaintiff presented evidence and sought damages
with regard to nineteen pools. The disparity is not an issue in this appeal.
5
With regard to the nineteen pools at issue, the dollar amounts of damages
sought by the plaintiff varied significantly. The amounts of past damages
ranged from zero dollars to $138,763.89. The amounts of future damages
ranged from zero dollars to $293,660. The total damages amounts ranged
from $17,297.19 to $306,563.81
6
The court found that the plaintiff incurred attorney’s fees totaling
$694,392.50.
7
At trial, the pools at issue were identified as being located at 19 Deerwood
Lane, Westport; 917 Merwins Lane, Fairfield; 220 Greenfield Hill Road, Fair-
field; and 62 Weston Road, Westport.
8
At trial, the pools at issue were identified as being located at 220 Green-
field Road, Fairfield; 17 Apple Tree Lane, Darien; 19 Deerwood Lane, West-
port; and 917 Merwins Lane, Fairfield.
9
At trial, the pools at issue were identified as being located at 17 Joanne
Lane, Weston; 17 Twelve O’Clock Road, Weston; 47 Appletree Lane, New
Canaan; and 9 Marc Lane, Westport.
10
‘‘Subject to the provisions of Section 16-17, the judicial authority shall, if
the verdict is in order and is technically correct, accept it without comment.’’
Practice Book § 16-31.
11
As supported by the evidence, the plaintiff argued for an award of
$40,765.08 for 17 Joanne Lane, Weston; $34,596.08 for 17 Twelve O’Clock
Road, Weston; $49,622.43 for 47 Appletree Lane, New Canaan; and $67,938.14
for 9 Marc Lane, Westport.
12
‘‘Commercial loss’’ does not include costs incurred by a commercial
party in repairing damage to property caused by a defective product, nor
is it limited to property owned by the party seeking to recover under the
act. See Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224,
240–41, 967 A.2d 1188 (2009).
13
American Airlines, Inc., was cited approvingly in Ames v. Sears, Roe-
buck & Co., 8 Conn. App. 642, 655, 514 A.2d 352, cert. denied, 201 Conn.
809, 515 A.2d 378 (1986).
14
The court stated in relevant part: ‘‘Now, in addition to seeking compensa-
tory damages, the plaintiff seeks an award of punitive damages. Punitive
damages are damages awarded not to compensate the plaintiff for any injury
or losses, but to punish the defendant for outrageous conduct and to deter
it and others like it from similar conduct in the future.
‘‘Punitive damages may be awarded for conduct that is outrageous because
of the defendant’s reckless indifference to the rights of others or an inten-
tional and wanton violation of those rights.
‘‘You may award punitive damages only if you unanimously find from
facts established by a preponderance of the evidence that the conduct of
the defendant was, in fact, outrageous.
‘‘The law does not require you to award punitive damages. It is instead
a matter for your sound discretion. An award of punitive damages or any
award of damages, for that matter, must not reflect bias, prejudice or sympa-
thy with respect to any party. It must instead be fairly based on the evidence
in this case.
‘‘Pursuant to statute, punitive damages may be awarded in a Product
Liability Act case if the plaintiff proved by a preponderance of the evidence
that the harm suffered was the result of the product seller’s reckless disre-
gard for the safety of product users, consumers or others who are injured
by the product.
‘‘If the jury determines that punitive damages should be awarded, the
court in its discretion shall determine the actual amount of such damages
in an amount not to exceed twice the damages awarded to the plaintiff.
‘‘You should consider the reprehensibility of the defendant’s conduct and
the actual harm suffered by the plaintiff, and you must unanimously find it
necessary for achieving the objectives of punitive damages that I have
described.’’
15
The interrogatory states: ‘‘Has the plaintiff R.I. Pools, Inc., proven by a
preponderance of the evidence its entitlement to punitive damages in that
you find that the defendant Paramount Concrete, Inc., acted with a reckless
disregard for the safety of product users, consumers or others who were
injured by the product? (If you find for the plaintiff as to punitive damages,
the court will determine the amount of any award).’’ The jury responded
to this interrogatory by inscribing a check mark on the line marked ‘‘Yes.’’
16
‘‘In a typical general verdict rule case, the record is silent regarding
whether the jury verdict resulted from the issue that the appellant seeks to
have adjudicated. . . . Under the general verdict rule, if a jury renders a
general verdict for one party, and [the party raising a claim of error on
appeal did not request] 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. . . . Even in a case with a single count complaint, the general
verdict rule applies when reliance is placed upon grounds of action . . .
which are distinct, not because they involve specific sets of facts forming
a part of the transaction but in the essential basis of the right replied upon
. . . . [T]he general verdict rule would apply in a case in which a single
count of a complaint alleged both wanton misconduct and negligence. . . .
The applicability of the general verdict rule does not depend on the niceties
of pleading but on the distinctness and severability of the claims and defenses
raised at trial.’’ (Citations omitted; internal quotation marks omitted.)
Konesky v. Post Road Entertainment, 144 Conn. App. 128, 132–33, 72 A.3d
1152, cert. denied, 310 Conn. 915, 76 A.3d 630 (2013).
17
There was evidence presented at trial that such quality control measures
were integral to the proper manufacture and delivery of Shotcrete.
18
We observe, however, that there is no binding precedent on the issue
of whether the common-law punitive damages rule applies to an award of
statutory punitive damages under § 52-240b. See Bifolck v. Philip Morris,
Inc., United States District Court, Docket No. 3:06cv1768 (SRU) (D. Conn.
February 14, 2014) (order certifying question to Connecticut Supreme
Court).
19
See, e.g., General Statutes § 52-240a, which permits an award of attor-
ney’s fees to the prevailing party in a product liability action upon a finding
by the court that a claim or defense made in connection with such action
is frivolous. The court was not asked to award such fees in the present
case, and it did not rely on § 52-240a in its award of damages.
20
‘‘[T]he initial estimate of a reasonable attorney’s fee is properly calcu-
lated by multiplying the number of hours reasonably expended on the litiga-
tion times a reasonable hourly rate. . . . The courts may then adjust this
lodestar calculation by other factors. . . . For guidance in adjusting attor-
ney’s fees, Connecticut courts have adopted the twelve factors set forth in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.
1974). The Johnson factors are (1) the time and labor required, (2) the
novelty and difficulty of the questions, (3) the skill requisite to perform the
legal service properly, (4) the preclusion of other employment by the attorney
due to acceptance of the case, (5) the customary fee for similar work in
the community, (6) whether the fee is fixed or contingent, (7) time limitations
imposed by the client or the circumstances, (8) the amount involved and
the results obtained, (9) the experience, reputation and ability of the attor-
neys, (10) the undesirability of the case, (11) the nature and length of the
professional relationship with the client and (12) awards in similar cases.’’
(Citation omitted; internal quotation marks omitted.) Ernst v. Deere & Co.,
supra, 92 Conn. App. 576; see also Laudano v. New Haven, 58 Conn. App.
819, 822–23, 755 A.2d 907 (2000).
21
In light of the foregoing, we agree with the defendant that the court
violated notions of basic due process by awarding punitive damages far in
excess of the attorney’s fees incurred by the plaintiff. It appears from the
record that the defendant lacked fair notice that the court could impose an
award that exceeded that permitted under the common law.