Doe v. Boy Scouts of America Corp.

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DOE v. BOY SCOUTS OF AMERICA CORP.—SECOND CONCURRENCE
EVELEIGH, J., with whom, McDONALD, J., joins,
concurring and dissenting. I fully join parts II, III, IV,
V, and VI of the majority opinion with the exception of
the majority’s conclusion that ‘‘[w]hen the trial court
has improperly instructed the jury and the improper
instruction cannot be considered harmless because
there is no way of knowing whether the finder of fact
would have reached the same conclusion if it had been
properly instructed, the proper remedy generally is to
remand the case to the trial court for a new trial without
considering whether the evidence presented at the first
trial was sufficient to support the verdict.’’ See footnote
12 of the majority opinion. I also respectfully dissent
from part I of the majority opinion, however, because,
in my view, even if the trial court’s refusal to give the
proposed instruction of the named defendant, The Boy
Scouts of America Corporation,1 on § 302 B of the
Restatement (Second) of Torts was improper, that error
was harmless. Indeed, although the majority appears
to recognize the harmless error standard, it fails to
conduct any detailed analysis as to whether the trial
court’s failure to give the defendant’s proposed instruc-
tion was harmful in the present case. Furthermore,
although the majority does not reach the question of
whether the award of damages was excessive because
it concludes that the present case must be remanded
for a new trial, I would reach this issue and conclude
that the trial court did not abuse its discretion in denying
the defendant’s motion to set aside the verdict and an
order for a new trial or remittitur. Accordingly, after
careful review of the record and the parties’ claims, I
am persuaded that I would affirm the judgment of the
trial court in favor of the plaintiff, John Doe, which it
rendered in accordance with the jury’s verdict, on all
counts except for the plaintiff’s claim under the Con-
necticut Unfair Trade Practices Act (CUTPA). See Gen-
eral Statutes § 42-110a et seq.
I agree with the facts and procedural history as set
forth in the majority opinion. I will provide additional
facts as necessary.
I
The following facts are necessary to an understanding
of the parties’ claims. After the presentation of evidence
had concluded, the defendant submitted a request to
charge the jury that contained the following proposed
instructions: ‘‘The plaintiff claims that [his patrol
leader] Siegfried Hepp engaged in intentional miscon-
duct with him. As a general matter, the [defendant is]
not responsible for anticipating the intentional miscon-
duct of a third party, in this case Hepp, unless [it] knew
or had reason to know of Hepp’s propensity for miscon-
duct from 1976 to 1978. . . .
‘‘The first exception to the rule that the [defendant
is] not responsible for anticipating the intentional mis-
conduct of Hepp unless [it] knew or should have known
of his propensity for misconduct is when the [defen-
dant’s] own conduct created or increased the foresee-
able risk that the plaintiff would be harmed by the
misconduct of a third party.
‘‘In order to answer that question, you should con-
sider all of the following factors: the known character,
past conduct, and tendencies of Hepp; the temptation
or opportunity which the [defendant’s] conduct may
afford him for such behavior; the gravity of the harm
which may result; and the possibility that some other
person will assume the responsibility for preventing the
conduct or the harm, together with the burden of the
precautions which the [defendant] would be required
to take. Where the risk is relatively slight in comparison
with the utility of the [defendant’s] conduct, [it] may
have no obligation to act.’’ (Citation omitted.) The trial
court declined to instruct the jury in accordance with
the defendant’s request and, instead, gave a standard
negligence instruction.
Assuming, for the sake of argument, that the majority
is correct in concluding that the trial court’s failure
to give the instruction on § 302 B of the Restatement
(Second) of Torts, as proposed by the defendant, was
improper, I disagree that such an impropriety requires
reversal. ‘‘We have repeatedly recognized that [i]t is
axiomatic . . . that not every error is harmful. . . .
[W]e have often stated that before a party is entitled
to a new trial . . . he or she has the burden of demon-
strating that the error was harmful. . . . An instruc-
tional impropriety is harmful if it is likely that it affected
the verdict. . . . In determining whether an instruc-
tional impropriety was harmless, we consider not only
the nature of the error, including its natural and proba-
ble effect on a party’s ability to place his full case before
the jury, but the likelihood of actual prejudice as
reflected in the individual trial record, taking into
account (1) the state of the evidence, (2) the effect of
other instructions, (3) the effect of counsel’s arguments,
and (4) any indications by the jury itself that it was
misled.’’ (Internal quotation marks omitted.) Allison v.
Manetta, 284 Conn. 389, 400, 933 A.2d 1197 (2007). Thus,
in my view, a new trial would be necessary only if the
defendant could establish on appeal that the trial court’s
refusal to give the requested instruction constituted
harmful error. In other words, in order to establish
reversible error, the defendant must prove that the jury
likely would have returned a verdict in its favor had
the requested instruction been given.
In support of its position that the present case should
be remanded for a new trial, the majority cites this
court’s decision in McDermott v. State, 316 Conn. 601,
113 A.3d 419 (2015). See footnote 12 of the majority
opinion. I disagree with the majority’s reliance on
McDermott and find the facts of that case to be distin-
guishable from the present case.
First, unlike the present case, McDermott did not
involve a claim of instructional impropriety. In McDer-
mott, the relevant certified question before this court
was whether ‘‘the Appellate Court properly reverse[d]
the judgment of the trial court on the basis that the
trial court incorrectly found that the [defendant] had
assumed a greater duty of care than that reflected in
industry custom or standards.’’ (Internal quotation
marks omitted.) Id., 607. Thus, unlike the present case,
the issues arising in McDermott, which involved a bench
trial, did not require this court to conduct an examina-
tion of ‘‘the [trial] court’s entire charge to determine
whether it [was] reasonably possible that the jury could
have been misled by the omission of the requested
instruction.’’ (Internal quotation marks omitted.) State
v. Devalda, 306 Conn. 494, 505–506, 50 A.3d 882 (2012).
In McDermott, this court was asked to determine
whether the trial court, as the trier of fact, had misun-
derstood the law, rather than whether the trial court’s
explanation of the law was apt to mislead a jury. McDer-
mott v. State, supra, 316 Conn. 611.
Second, in McDermott, the trial court applied an
incorrect legal standard, rather than an incomplete legal
standard. In McDermott, this court concluded that ‘‘the
trial court did not make the requisite factual findings
necessary to conclude that the defendant had volunta-
rily assumed a greater duty than that which was legally
required . . . [and] that, without these findings, the
trial court improperly applied the standard set forth in
§ 323 of the Restatement (Second) of Torts.’’ (Emphasis
added.) McDermott v. State, supra, 316 Conn. 611. As
the majority recognizes, in so concluding, this court
reasoned as follows: ‘‘We have often stated that, a party
is generally entitled to a new trial when, on appeal, a
different legal standard is determined to be required,
unless we conclude that, based on the evidence, a new
trial would be pointless.’’ (Emphasis added.) Id. As
a result of its conclusion, this court held that it was
‘‘necessary to remand the case to the trial court for a
new trial to allow the parties to present their cases with
the correct legal standard in mind and to allow the trial
court to evaluate the facts in light of this correct legal
standard.’’ Id.
Third, although the majority offers a purported inter-
pretation of McDermott, nowhere in the McDermott
decision did we say that a new trial would be ordered
‘‘without considering whether the evidence presented
at the first trial was sufficient to support the verdict.’’
See footnote 12 of the majority opinion. In my view, a
harmful error analysis must be performed, particularly
when the trial court has given an accurate, albeit argua-
bly incomplete, charge on the law.
In the present case, the negligence instruction that
the trial court gave the jury was a correct statement of
the law. In fact, it was taken almost completely verbatim
from the model civil jury instructions that appear on
the Judicial Branch website. See Connecticut Civil Jury
Instructions (4th Ed. 2008) § 3.6-7, available at https://
www.jud.ct.gov/JI/civil/Civil.pdf (last visited Septem-
ber 29, 2016).2 Even assuming that the trial court’s
instruction to the jury regarding negligence in the pres-
ent case was incomplete, it certainly was not an inaccu-
rate statement of the law and, thus, does not automati-
cally warrant a new trial. See Allison v. Manetta, supra,
284 Conn. 400 (concluding that trial court’s instruction
was ‘‘incomplete,’’ but, nevertheless, examining
whether trial court’s refusal to give defendant’s pro-
posed instruction constituted harmful error).
The majority states that ‘‘[w]hen the trial court has
improperly instructed the jury and the improper instruc-
tion cannot be considered harmless because there is
no way of knowing whether the finder of fact would
have reached the same conclusion if it had been prop-
erly instructed, the proper remedy generally is to
remand the case to the trial court for a new trial without
considering whether the evidence presented at the first
trial was sufficient to support the verdict.’’ See footnote
12 of the majority opinion. This statement contains an
internal inconsistency because it is unclear how a court
can determine whether an improper instruction can be
considered harmless without also ‘‘considering whether
the evidence presented at the first trial was sufficient
to support the verdict.’’ Id. This statement contains a
further internal inconsistency by mentioning harm-
lessness but then stating that a case should be remanded
when ‘‘there is no way of knowing whether the finder
of fact would have reached the same conclusion if it
had been properly instructed . . . .’’ Id. A reviewing
court cannot determine whether the finder of fact likely
would have reached the same conclusion if it had been
properly instructed without first conducting a harmless
error analysis.
Despite the fact that the majority appears to recog-
nize the applicability of harmless error analysis to the
present case, it fails to provide any detailed analysis as
to whether the trial court’s alleged instructional error
was, in fact, harmful. This court has, however, pre-
viously applied harmless error analysis in civil cases
involving claims of instructional impropriety. See, e.g.,
National Publishing Co. v. Hartford Fire Ins. Co., 287
Conn. 664, 688, 949 A.2d 1203 (2008) (concluding that
trial court’s refusal to give defendant insurer’s
requested instruction on special defense of late notice
was harmful error in action for breach of insurance
contract); Allison v. Manetta, supra, 284 Conn. 400–402
(concluding, following examination of evidence pre-
sented at trial, that trial court’s refusal to instruct jury
on defendant’s theory of sovereign immunity consti-
tuted harmful error); see also DeMatteo v. New Haven,
90 Conn. App. 305, 312, 876 A.2d 1246 (concluding that
defendant had ‘‘failed to satisfy its burden of establish-
ing that the [instructional] impropriety was harmful in
that it likely affected the result of the trial’’), cert.
denied, 275 Conn. 931, 883 A.2d 1242 (2005). In my view,
rather than automatically remanding the present case
for a new trial, this court should conduct a harmless
error analysis. I am persuaded that such an analysis
would demonstrate that ‘‘based on the evidence, a new
trial would be pointless.’’3 McDermott v. State, supra,
316 Conn. 611.
As explained previously herein, ‘‘[i]n determining
whether an instructional impropriety was harmless, we
consider not only the nature of the error, including its
natural and probable effect on a party’s ability to place
his full case before the jury, but the likelihood of actual
prejudice as reflected in the individual trial record, tak-
ing into account (1) the state of the evidence, (2) the
effect of other instructions, (3) the effect of counsel’s
arguments, and (4) any indications by the jury itself
that it was misled.’’ (Internal quotation marks omitted.)
Allison v. Manetta, supra, 284 Conn. 400.
As this court recognized in Doe v. Saint Francis
Hospital & Medical Center, 309 Conn. 146, 179–80, 72
A.3d 929 (2013), ‘‘[i]t is not possible to state definite
rules as to when the actor is required to take precau-
tions against intentional or criminal misconduct. As in
other cases of negligence . . . it is a matter of balanc-
ing the magnitude of the risk against the utility of the
actor’s conduct. Factors to be considered are the known
character, past conduct, and tendencies of the person
whose intentional conduct causes the harm, the tempta-
tion or opportunity which the situation may afford him
for such misconduct, the gravity of the harm which may
result, and the possibility that some other person will
assume the responsibility for preventing the conduct
or the harm, together with the burden of the precautions
which the actor would be required to take. Where the
risk is relatively slight in comparison with the utility of
the actor’s conduct, he may be under no obligation to
protect the other against it. [2 Restatement (Second),
Torts § 302 B, comment (f), p. 93 (1965)].’’ (Internal
quotation marks omitted.) The relevant portion of the
defendant’s proposed charge included the factors set
forth in § 302 B of the Restatement (Second) that were
cited in Saint Francis Hospital & Medical Center.
I begin with a review of the state of the evidence in
this case. At the trial in this matter, the defendant did
not present evidence concerning each of the factors
enumerated in comment (f) to § 302 B of the
Restatement (Second). Instead, at trial, the defendant
focused primarily upon the known character, past con-
duct, and tendencies of Hepp to commit sexual abuse.
Specifically, the defendant presented the testimony of
a local scouting leader, Robert Gyle, whose son partici-
pated in scouting activities with both Hepp and the
plaintiff. Gyle testified that he was unaware that Hepp
was engaging in inappropriate sexual conduct with the
other boys in the scouting program. The defendant did
not focus on the other factors and, notably, did not
present evidence as to the burden of implementing poli-
cies aimed at preventing sexual abuse during scout-
ing activities.
Furthermore, a review of the state of the evidence
demonstrates that the evidence on the other factors
supports the plaintiff’s claim. First, I agree with the
majority that the evidence the plaintiff presented at trial
‘‘was sufficient to establish a prima facie case that the
defendant should have realized the likelihood that [its]
conduct would create a temptation which would be
likely to lead to [sexual abuse].’’ (Internal quotation
marks omitted.) As the majority states, the ‘‘plaintiff
presented evidence that the defendant engaged in the
affirmative acts of promoting and endorsing [scouting]
activities, such as overnight camping, that created
opportunities for sexual abuse.’’ As the majority further
recognizes, the Boy Scout Handbook in effect at the
relevant time stated that ‘‘[p]atrols do lots of things
outdoors. They go hiking and camping. These hikes and
camps must be approved by your [s]coutmaster ahead
of time. Some patrols go overnight camping by them-
selves. Your patrol can, too, if you have a patrol leader
your [s]coutmaster will approve as an overnight camp-
ing leader.’’ Although Gyle testified that going on unsu-
pervised overnight camping trips was not the usual
practice of the local council, the plaintiff testified that
the adult leaders did not camp in the same area as the
patrol and that the patrol leader was left in charge of
the scouts.
Second, as I will discuss in greater detail in part II
of this concurring and dissenting opinion, the plaintiff
presented evidence demonstrating that he suffered
severe emotional and psychological harm. Although the
defendant attempted to show that other negative factors
in the plaintiff’s life might have contributed to these
injuries, it does not dispute the gravity of those injuries.
Third, a jury could reasonably infer from the exten-
sive testimony relating to the defendant’s secrecy as to
its knowledge of the prevalence of sexual abuse during
scouting activities, as documented in the ineligible vol-
unteer files,4 that there was a slim ‘‘possibility that some
other person [would] assume the responsibility for pre-
venting the conduct or the harm . . . .’’ 2 Restatement
(Second), supra, § 302 B, comment (f). For instance,
Nate Marshal, the assistant director of registration ser-
vice for the defendant, testified that, to the best of his
knowledge, the defendant has never engaged in the
practice of circulating a list of individuals deemed to
be ineligible to participate in its programs, or otherwise
notifying the local councils of these reported incidents
of misconduct, regardless of whether there had been a
criminal conviction. In fact, Marshal explained that it
is the defendant’s policy not to send copies of the ineligi-
ble volunteer files to the local councils, notwithstanding
a request from the local council for such documenta-
tion. In addition, there was evidence presented that the
defendant controlled the training programs for the local
councils. For example, Louis D. Salute, a representative
of the state council, testified that the local councils are
not permitted by the defendant to create their own
guidelines for training adult leaders. Salute testified as
follows: ‘‘We follow the national training. The . . . only
latitude that we have is, for instance, to require training,
which we have done. But we can’t add to or subtract
from the training program.’’
Finally, I agree with the majority ‘‘that a reasonable
person would [not] be compelled to conclude that tak-
ing precautions against the risks would have been so
unduly burdensome that the defendant reasonably
could not have been expected to do so.’’5 As explained
previously herein, the defendant did not present any
evidence regarding the burden of the precautions it
would be required to take.
Thus, in my view, an instruction on the factors set
forth in § 302 B of the Restatement (Second) likely
would not have affected the jury’s verdict in the present
case because, based on the present record, the plaintiff
likely would have sustained his burden to prove that
the defendant owed the plaintiff a duty of reasonable
care and that the defendant’s failure to take precautions
against sexual abuse in scouting activities proximately
caused the plaintiff’s injuries. Accordingly, this factor
weighs in favor of sustaining the jury’s verdict.
Turning to the second prong of a harmless error anal-
ysis, I examine the effect of other instructions on the
outcome of this case. See Allison v. Manetta, supra,
284 Conn. 400. Specifically, the instructions on the ele-
ment of duty and the special defense of superseding
cause relate to the charge requested by the defendant.
The defendant’s proposed charge read in relevant
part as follows: ‘‘The first exception to the rule that
the [defendant is] not responsible for anticipating the
intentional misconduct of Hepp unless [it] knew or
should have known of his propensity for misconduct
is when the [defendant’s] own conduct created or
increased the foreseeable risk that the plaintiff would
be harmed by the misconduct of a third party.’’ (Empha-
sis added.)
In my view, the trial court’s instruction on duty
encompasses the substance of this portion of the defen-
dant’s proposed charge. The trial court’s instruction
regarding the element of duty provided in relevant part:
‘‘A duty to use care exists when a reasonable person,
knowing what the [defendant] here either knew or
should have known at the time of the alleged conduct,
would foresee that the harm of the same general nature
as that which occurred here was likely to result from
that conduct. If harm of the same general nature as
that which occurred here was foreseeable, it does not
matter if the manner in which the harm that actually
occurred was unusual, bizarre or unforeseeable.’’
(Emphasis added.) Both the defendant’s proposed
charge and the trial court’s instruction on the element
of duty are couched in terms of foreseeability.
Moreover, I am not swayed by the defendant’s con-
tention that, by not instructing the jury on the factors
set forth in § 302 B of the Restatement (Second), the
trial court essentially instructed the jury that the defen-
dant could be held ‘‘strictly liable for any injury that
occurs in scouting.’’ The trial court did not instruct the
jury that the defendant could be held liable for any
injury occurring during scouting activities. The defen-
dant’s liability extended only to reasonably foreseeable
injuries—those stemming from sexual abuse commit-
ted by adult volunteers or other scouts during such
activities.
Contrary to the defendant’s contention, I further find
that the trial court’s instruction on superseding cause
made clear to the jury that it had to find a causal link
between the defendant’s conduct and the plaintiff’s
injuries, such that a mere bystander could not be held
liable for the plaintiff’s injuries. The trial court’s instruc-
tion regarding the defendant’s special defense of super-
seding cause provided in relevant part as follows: ‘‘The
defendant in a defense filed in this case claims that . . .
[it] did not legally cause the plaintiff’s alleged injury
because the injury was produced, in material part, by
a superseding cause.
‘‘Now a superseding cause is an intentional harmful
act, force of nature, or criminal event, unforeseen by the
defendant, which intervenes in the sequence of events
leading from the defendant’s alleged negligence to the
plaintiff’s alleged injury and proximately causes that
injury. Under our law, the intervention of such a super-
seding cause prevents the defendant from being held
liable for the plaintiff’s injuries on the theory that, due
to such superseding cause, the defendant did not legally
cause the injury even though [its] negligence was a
substantial factor in bringing the injury about. There-
fore, when a claim of superseding cause is made at
trial, the plaintiff must disprove at least one essential
element of that claim by a fair preponderance of the
evidence in order to prove, by that standard, its own
conflicting claim of legal causation.
‘‘In this case, the defendant claims, more particularly,
that Hepp’s alleged intentional harmful act of sexually
assaulting the plaintiff while both were [in the scouting
program] was a superseding cause of the plaintiff’s
alleged injury, and, thus . . . that [its] own negligence
did not legally cause that injury. Because such intention-
ally harmful conduct, if unforeseeable by the defendant,
would constitute a superseding cause of the plaintiff’s
alleged injury if it occurred as claimed by the defendant
and if it proximately caused the plaintiff’s injury, the
plaintiff must disprove at least one essential element
of that claim by a fair preponderance of the evidence
in order to prove that the defendant legally caused
that injury.
‘‘The plaintiff can meet this burden by proving one
of the following: one, that the conduct claimed to consti-
tute a superseding cause did not occur as claimed by
the defendant, either because it did not occur at all or
because it was not engaged in with the intent to cause
harm; two, that such conduct was foreseeable by the
defendant, in that the injury in question was within
the scope of the risk created by the defendant’s conduct;
or three, that such conduct . . . was not a substantial
factor in bringing about the plaintiff’s alleged injury.’’
(Emphasis added.)
The language of the trial court’s instruction regarding
the special defense of superseding cause is substantially
similar to the language of the defendant’s proposed
charge. Neither party disputes that the plaintiff was
abused by Hepp during scouting activities and this fact
was a central part of the plaintiff’s theory. Furthermore,
neither party challenges the fact that the sexual abuse
the plaintiff suffered at the hands of Hepp was a sub-
stantial factor in bringing about his injuries. Accord-
ingly, in order to prove that the defendant legally caused
his injuries pursuant to the trial court’s instructions,
the plaintiff had to prove that Hepp’s sexual abuse of
the plaintiff ‘‘was foreseeable by the defendant, in that
the injury in question was within the scope of the risk
created by the defendant’s conduct . . . .’’ This portion
of the jury charge essentially mirrors the language of
the defendant’s proposed charge, which, as stated pre-
viously, read in relevant part as follows: ‘‘The first
exception to the rule that the [defendant is] not respon-
sible for anticipating the intentional misconduct of
Hepp unless [it] knew or should have known of his
propensity for misconduct is when the [defendant’s]
own conduct created or increased the foreseeable risk
that the plaintiff would be harmed by the misconduct
of a third party.’’6 (Emphasis added.)
The trial court’s omission of the defendant’s proposed
instruction on the factors set forth in § 302 B of the
Restatement (Second) did not prevent the defendant
from establishing that it had not been negligent in failing
to take precautions against sexual abuse in light of its
knowledge of the ineligible volunteer files. Therefore,
in my view, even assuming the trial court’s instructions
were incomplete, the standard negligence instruction
given by the trial court did not prevent the jury from
making key factual findings that likely would have
affected the verdict in the present case. Accordingly, I
would conclude that the second prong of the harmless
error analysis—the effect of other instructions—weighs
against reversing the judgment of the trial court and
ordering a new trial.
I now turn to the third prong of the harmless error
analysis—the effect of counsel’s argument. See Allison
v. Manetta, supra, 284 Conn. 400. My review of the
transcript of defense counsel’s opening argument dem-
onstrates that he did not frame his theory of the case in
terms of factors set forth in § 302 B of the Restatement
(Second). In his opening argument, rather than focus
upon the question of whether the defendant’s conduct
created or increased the risk that the plaintiff would
be harmed by Hepp, defense counsel argued that, con-
trary to the plaintiff’s claim, the ineligible volunteer
files did not give the defendant ‘‘special knowledge
about sexual abuse . . . .’’ Specifically, with respect
to the ineligible volunteer files, defense counsel argued
that: (1) ‘‘in the 1970s, the [defendant] had no more
knowledge than anyone else about [the] sexual abuse
of children’’; (2) ‘‘the purpose of the ineligible volunteer
files [was] to keep the bad guys out, not to study them,
not to collect data on them, not to psychoanalyze them’’;
and (3) the ineligible volunteer files contain information
about ‘‘adult volunteers who are accused of improper
conduct . . . not about [children] who are alone
together engaging in inappropriate conduct.’’ Only the
first argument, namely that the defendant did not have
more knowledge about sexual abuse than other youth
organizations at the time, relates to the question of
whether the defendant’s conduct created or increased
the risk of harm to the plaintiff.7 Furthermore, in his
opening argument, defense counsel asked the jury to
consider whether other factors in the plaintiff’s life
may have caused his injuries, rather than Hepp’s sexual
abuse of the plaintiff. Therefore, it was not evident from
the defendant’s opening argument that it intended to
present evidence with respect to each of the factors
set for in § 302 B of the Restatement (Second).
Finally, there is no indication in the record that the
jury was confused or misled. For instance, there is no
evidence that the jury requested to be recharged or
submitted notes to the court requesting clarification of
the charge. Thus, I would conclude that the defendant
has failed to satisfy its burden to show that it is likely
that the trial court’s omission of the defendant’s pro-
posed instruction affected the verdict. Accordingly, I
would affirm the judgment of the trial court.
II
Because I would conclude that the trial court’s omis-
sion of the defendant’s proposed instruction was harm-
less, I would reach the merits of the defendant’s claim
that the trial court improperly denied its motion to set
aside the verdict and order a new trial or remittitur.
On appeal, the defendant claims that the trial court
abused its discretion in denying its motion to set aside
the verdict and order a new trial or remittitur because
the jury’s compensatory damages awards for the plain-
tiff’s claims of negligence and negligent infliction of
emotional distress were excessive as a matter of law.
Specifically, the defendant claims that the total $7 mil-
lion compensatory damages award ‘‘should shock the
conscience of [this] court.’’ The defendant further con-
tends that the jury’s award of $4 million for the plaintiff’s
negligence claim should be remitted because it is dupli-
cative of the jury’s award of $3 million for the plaintiff’s
negligent infliction of emotional distress claim. In
response, the plaintiff contends that the award was
neither shocking nor inconsistent with the evidence
that had been adduced at trial. I agree with the plaintiff.
‘‘Our analysis of this claim is guided by certain gov-
erning principles, which are applicable when reviewing
appeals regarding motions to set aside a verdict as well
as motions for remittitur. Because an award of damages
is a matter peculiarly within the province of the trier
of facts, we have held consistently that a court should
exercise its authority to order a remittitur rarely—only
in the most exceptional of circumstances. . . . In
determining whether to order remittitur, the trial court
is required to review the evidence in the light most
favorable to sustaining the verdict. . . . Upon complet-
ing that review, the court should not interfere with the
jury’s determination except when the verdict is plainly
excessive or exorbitant. . . . The ultimate test which
must be applied to the verdict by the trial court is
whether the jury’s award falls somewhere within the
necessarily uncertain limits of just damages or whether
the size of the verdict so shocks the sense of justice
as to compel the conclusion that the jury [was] influ-
enced by partiality, prejudice, mistake or corruption.
. . . The court’s broad power to order a remittitur
should be exercised only when it is manifest that the
jury [has] included items of damage which are contrary
to law, not supported by proof, or contrary to the court’s
explicit and unchallenged instructions. . . .
‘‘Furthermore, [t]he decision whether to reduce a jury
verdict because it is excessive as a matter of law . . .
rests solely within the discretion of the trial court. . . .
[Consequently], the proper standard of review of a trial
court’s decision to grant or deny a motion to set aside
a verdict as excessive as a matter of law is that of abuse
of discretion. . . . Accordingly, the ruling of the trial
court on the motion to set aside the verdict as excessive
is entitled to great weight and every reasonable pre-
sumption should be given in favor of its correctness.’’
(Citations omitted; internal quotation marks omitted.)
Patino v. Birken Mfg. Co., 304 Conn. 679, 705–706, 41
A.3d 1013 (2012).
A careful examination of the record reveals that there
was ample evidence from which the jury could reason-
ably have concluded that the plaintiff suffered serious,
debilitating, and continuing emotional and psychologi-
cal injuries as a result of the sexual abuse. At trial, the
plaintiff described the three separate incidents of sexual
abuse he suffered when he was about ten or eleven
years old at the hands of Hepp during camping trips,
including exposure to pornography, sodomy, and fella-
tio. The plaintiff testified that, following the third inci-
dent, which involved Hepp performing anal sex on him,
he stopped participating in scouting activities. The
plaintiff further explained that these incidents made
him feel ‘‘ashamed’’ and ‘‘degraded’’ and that, as a result,
he chose not to share his experience with anyone until
recently and continues to experience great difficulty
recounting these events. He testified that these inci-
dents have adversely affected his relationships with
others, including receiving physical affection from his
mother. He further testified that he is currently receiv-
ing psychological treatment and that the psychological
injury he suffered has manifested itself in acts of self-
harm and drug abuse.
In addition, the plaintiff called Jeffrey Deitz, a psychi-
atrist, who provided expert testimony about the contin-
ued effects of sexual abuse on the plaintiff, including the
increased likelihood that victims of childhood sexual
abuse, like the plaintiff, will turn to substance abuse
as a form of self-medication8 and the fact that a history
of such abuse often leads to the disruption of the vic-
tims’ relationships with their loved ones. Deitz
explained that he had met with the plaintiff on two
occasions to evaluate him and determine whether the
sexual abuse the plaintiff endured as a child during
scouting activities had a continued effect on him. Deitz
opined that it was ‘‘excruciatingly difficult’’ for the
plaintiff to speak about the incidents of abuse and that
‘‘the entire interview was riddled with anxiety.’’9 Deitz
stated that the plaintiff’s reaction during their meeting
indicated the considerable degree of distress he was
still experiencing as a result of the abuse. Deitz con-
cluded that the abuse the plaintiff suffered adversely
affected multiple aspects of his development, including
‘‘normal adolescent development.’’ Deitz further con-
cluded that the plaintiff’s difficulty being intimate, his
inability to have physical contact with his mother,10 and
his aversion to taking direction from authority figures
could be attributed to past sexual abuse. Deitz then
testified that the plaintiff had been diagnosed with bipo-
lar disorder and that there is a well established link
between the development of bipolar disorder and child-
hood sexual abuse. Finally, Deitz opined, to a reason-
able degree of medical probability, that the plaintiff’s
battle with suicidal ideation11 was substantially caused
by the sexual abuse he endured during scouting activi-
ties and that he could benefit from psychological
therapy.
Furthermore, I disagree with the defendant’s con-
tention that the jury’s damages award for negligent
infliction of emotional distress is duplicative of their
award for the plaintiff’s general negligence claim.12 I
am persuaded that the plaintiff’s general negligence
claim sets forth a claim for relief separate and apart
from the plaintiff’s negligent infliction of emotional dis-
tress claim.13 The jury reasonably could have found that
the plaintiff had also sustained a physical injury as a
result of the incidents of sexual abuse. It was within
the jury’s common knowledge that acts of sexual abuse
involve a considerable physical injury to a minor child.
See Doe v. Hartford Roman Catholic Diocesan Corp.,
317 Conn. 357, 375, 119 A.3d 462 (2015) (noting that
‘‘[j]urors are not expected to lay aside matters of com-
mon knowledge or their own observation and experi-
ence of the affairs of life, but, on the contrary, to apply
them to the evidence or facts in hand, to the end that
their action may be intelligent and their conclusions
correct’’ [internal quotation marks omitted]). Thus, in
my view, it is reasonable to believe that the jury’s award
for the general negligence claim reflects their view of
fair compensation for the actual physical intrusion itself
and, therefore, does not constitute duplicative recovery.
Construing the evidence in the light most favorable
to sustaining the verdict, I would conclude that the
record at trial was sufficient to support the jury’s com-
pensatory damages award. See Patino v. Birken Mfg.
Co., supra, 304 Conn. 705. Both the trial court, and this
court, ‘‘are bound by the jury’s credibility determina-
tions and all reasonable inferences the jury could have
drawn from the evidence.’’ (Emphasis in original.) Saleh
v. Ribeiro Trucking, LLC, 303 Conn. 276, 290, 32 A.3d
318 (2011); see also Thomas v. Katz, 171 Conn. 412,
415, 370 A.2d 978 (1976) (‘‘[T]he question whether there
was sufficient evidence [to support the verdict] is for
the jury, who [has] the sole province of weighing the
evidence and determining the credibility of the wit-
nesses. . . . The choice of the more credible evidence
was for [the jury] to make.’’ [Citations omitted; internal
quotation marks omitted.]). The evidence in the present
case, when viewed in that light, reveals that the plaintiff
has suffered serious physical and psychological injuries
as a result of the defendant’s negligence and continues
to suffer from severe mental distress.
Moreover, the testimony adduced at trial demon-
strates that the jury’s award of compensatory damages
in the present case does not exceed ‘‘the necessarily
uncertain limits of just damages or . . . so shocks the
sense of justice as to compel the conclusion that the
jury [was] influenced by partiality, prejudice, mistake
or corruption.’’ (Internal quotation marks omitted.)
Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 281.
‘‘While the amount of the verdict is substantial, in a
relative sense it is no more substantial than the plain-
tiff’s injury.’’ Pisel v. Stamford Hospital, 180 Conn. 314,
344, 430 A.2d 1 (1980); see also Mather v. Griffin Hospi-
tal, 207 Conn. 125, 139, 540 A.2d 666 (1988) (noting
that ‘‘[t]he size of the verdict alone does not determine
whether it is excessive’’). Accordingly, giving due
weight to the aforementioned principles, I would con-
clude that the trial court did not abuse its discretion
when it denied the defendant’s posttrial motion for
remittitur or a new trial.
I would affirm the judgment of the trial court on all
counts of the operative complaint except for the count
alleging a violation of CUTPA, and would remand the
case to the trial court with direction to render judgment
in favor of the defendant on the CUTPA claim and to
adjust damages accordingly.
Accordingly, I respectfully concur and dissent.
1
The various other defendants are not parties to the present appeal. See
footnote 1 of the majority opinion. In the interest of simplicity, I refer to
The Boy Scouts of America Corporation as the defendant. I refer to the
defendant’s subordinate units, respectively, as state councils and local
councils.
2
This court has previously noted that ‘‘the fact that the [J]udicial [B]ranch
website contains a disclaimer that the instructions are not necessarily legally
sufficient in every case does not suggest that the instructions are legally
improper in and of themselves in any given case.’’ State v. Coleman, 304
Conn. 161, 176 n.5, 37 A.3d 713 (2012).
3
I note that the majority also cites to Deroy v. Estate of Baron, 136 Conn.
App. 123, 127, 43 A.3d 759 (2012), in support of its position that the present
case should be remanded for a new trial. In Deroy, the Appellate Court
concluded that the trial court improperly ‘‘applied a higher legal standard
to the question of testamentary capacity than is required under Connecticut
law.’’ Id., 125. For the same, aforementioned reasons, I am not persuaded
that the reasoning in Deroy is applicable to the present case.
4
As the majority explains, the defendant maintained files at its national
headquarters containing information about individuals deemed to be ineligi-
ble to volunteer as members of local councils or as adult leaders due to
allegations of sexual misconduct during scouting activities.
5
Frank Reigelman, director of camping and conservation for the defen-
dant, testified that he could not think of anything that would have prevented
the defendant from implementing policies to combat the sexual abuse of
minor participants in scouting activities at the time the plaintiff sustained
his injuries.
6
The majority takes issue with my observation that the trial court’s instruc-
tion regarding the special defense of superseding cause is substantially
similar to the language of the defendant’s proposed charge. Specifically, the
majority states that my reliance on the language of the trial court’s jury
instruction on superseding cause is misplaced because the defendant
requested a jury instruction on the element of duty, rather than an instruction
on causation. See footnote 10 of the majority opinion. I disagree.
First, I note that it was the defendant who requested a jury instruction
on the special defense of superseding cause and that such an instruction,
because it relates to a special defense, is favorable to the defendant. Second,
as the majority recognizes, when reviewing a challenge to the trial court’s
jury instruction, this court must ‘‘examine the [trial] court’s entire charge
to determine whether it is reasonably possible that the jury could have been
misled by the omission of the requested instruction.’’ (Emphasis added;
internal quotation marks omitted.) State v. Devalda, supra, 306 Conn. 505–
506. Furthermore, as previously stated herein, this court has specifically
stated that ‘‘[i]n determining whether an instructional impropriety was harm-
less, we consider . . . the effect of other instructions . . . .’’ (Internal quo-
tation marks omitted.) Allison v. Manetta, supra, 284 Conn. 400. Finally,
there is significant overlap between the elements of duty and causation.
See, e.g., Mirjavadi v. Vakilzadeh, 310 Conn. 176, 192, 74 A.3d 1278 (2013)
(noting that foreseeability is considered in context of duty and causation
analyses); Demers v. Rosa, 102 Conn. App. 497, 503–504, 925 A.2d 1165 (The
court noted that ‘‘[i]n negligence cases . . . in which a tortfeasor’s conduct
is not the direct cause of the harm, the question of legal causation is practi-
cally indistinguishable from an analysis of the extent of the tortfeasor’s duty
to the plaintiff. . . . Like an analysis of causation, a determination of the
nature of the legal duty owed, if any, must be rooted in the fundamental
policy of the law that a tortfeasor’s responsibility should not extend to the
theoretically endless consequences of the wrong.’’ [Citation omitted; internal
quotation marks omitted.]), cert. denied, 284 Conn. 907, 931 A.2d 262 (2007).
Indeed, the majority, in addressing the defendant’s claim that the plaintiff
did not present sufficient evidence to support a finding that the defendant’s
conduct caused the plaintiff’s damages, acknowledges this overlap and the
fact that the analysis of one factor can be applicable to the other. Specifically,
the majority fails to conduct an independent analysis of the defendant’s
claim relating to causation and, instead, explains that its conclusion ‘‘that
the plaintiff has made out a prima facie case that the defendant’s negligent
conduct increased the risk that the plaintiff would be subject to sexual
abuse and that the defendant negligently failed to take precautions against
this risk . . . is sufficient to establish causation.’’
7
On appeal, the defendant makes the related claim that ‘‘[t]here was no
evidence at trial that the risk of molestation in [its program] was any higher
than it was in the general public. [In the absence of] any evidence to the
contrary, one can only infer that the degree of risk is no more than it is in
society, and that, as a result, the [defendant] should have no greater duty
to protect a [child participating in its program] than the rest of society or
the [child’s] parents.’’ I agree with the majority that the defendant’s claim
lacks merit.
8
Deitz testified that the plaintiff has a serious history of substance abuse,
including use of alcohol, marijuana, cocaine, and heroin, although he is
currently sober and attends Narcotics Anonymous meetings.
9
Deitz further described his interaction with the plaintiff as follows: ‘‘He,
literally, had to look away, he was, I would say, ashamed, but, at the very
least, we’ll say distressed, horribly distressed.’’
10
Deitz testified that the plaintiff’s ‘‘fracture in his relationship with his
parents . . . was the result of the forced sexual contact he suffered’’ during
scouting activities.
11
Deitz testified that, during one of their meetings, the plaintiff had told
him that he had attempted suicide shortly after he left the scouting program.
12
‘‘Connecticut courts consistently have upheld and endorsed the principle
that a litigant may recover just damages for the same loss only once. . . .
The rule precluding double recovery is a simple and time-honored maxim
that [a] plaintiff may be compensated only once for his just damages for
the same injury.’’ (Citation omitted; internal quotation marks omitted.) Chap-
man Lumber, Inc. v. Tager, 288 Conn. 69, 111, 952 A.2d 1 (2008).
13
The nature of the damages alleged in the general negligence count of
the plaintiff’s complaint differs from that set forth in the negligent infliction
of emotional distress count. On the one hand, the fourth count of the
plaintiff’s amended complaint, which sets forth a cause of action for general
negligence, alleges that the plaintiff suffered ‘‘serious and permanent physi-
cal injury, invasion and damages, as well as extensive permanent emo-
tional and psychological injuries arising directly from the physical injury
and invasion he suffered.’’ (Emphasis added.) On the other hand, the fifth
count, which sets forth a cause of action for negligent infliction of emotional
distress, alleges that the plaintiff suffered ‘‘severe emotional distress,
resulting in illness and bodily harm’’ as a result of the defendant’s negligence.
It is also noteworthy that the defendant did not file a request to revise
or otherwise challenge the plaintiff’s general negligence claim as duplicative
of the negligent infliction of emotional distress claim. Furthermore, the
defendant does not challenge the trial court’s jury instructions on damages
and has failed to present any facts that would indicate that the jury could
not have fairly reached their verdict.
I further note that this court has previously explained that negligence and
negligent infliction of emotional distress are two separate theories of liability:
‘‘In negligent infliction of emotional distress claims, unlike general negli-
gence claims, the foreseeability of the precise nature of the harm to be
anticipated [is] a prerequisite to recovery even where a breach of duty might
otherwise be found . . . .’’ (Internal quotation marks omitted.) Perodeau
v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).