Fisk v. Redding

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GREGG FISK v. TOWN OF REDDING ET AL.
(SC 20333)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn, and Ecker, Js.*
Syllabus
The plaintiff, who sustained injuries when he fell off a retaining wall con-
structed by the defendant town, sought to recover damages from the
town. He claimed that the town created a public nuisance by constructing
the wall without a fence on top of it. Following a trial, the jury returned
a verdict in favor of the town. Thereafter, the plaintiff filed a motion
to set aside the verdict, claiming that the jury’s responses to certain
interrogatories, in which it indicated that it had found that the wall
was an inherently dangerous condition but was not an unreasonable or
unlawful use of the land, were inconsistent. The trial court denied the
motion and rendered judgment in accordance with the verdict, from
which the plaintiff appealed to the Appellate Court. The Appellate Court
concluded that, as a matter of law, the jury could not have determined
that the retaining wall without a fence was both inherently dangerous
and not an unreasonable use of the land. The Appellate Court further
concluded that the wall constituted an unreasonable use of the land
because it was inherently dangerous and lacked any social utility.
Accordingly, the Appellate Court reversed the trial court’s judgment and
remanded the case for a new trial. On the granting of certification, the
town appealed to this court. Held that the Appellate Court incorrectly
concluded that the trial court had abused its discretion by denying the
plaintiff’s motion to set aside the verdict, as the jury’s responses to
the special interrogatories could be harmonized in light of this court’s
established public nuisance jurisprudence: the proper inquiry for
determining the reasonableness of a defendant’s use of the land is not
whether the inherently dangerous condition alone is reasonable, but
whether the defendant’s use of the land constitutes a reasonable use in
light of the surrounding circumstances, and the Appellate Court improp-
erly focused its inquiry solely on the condition at issue and ignored the
multiplicity of factors that the jury could have considered in determining
that, despite the inherent dangerousness of the wall, the town’s use of
the land, when considered in context, was reasonable; moreover, the
jury could have reasonably concluded that the town’s use of the land
was reasonable in light of the benefits of the wall, the steps the town
took to mitigate the danger posed by the wall, such as the placement
of a guardrail and dense vegetation between the adjacent parking lot
and the wall, and the absence of any evidence that other individuals
had fallen from the wall prior to the plaintiff’s accident.
Argued April 27—officially released November 9, 2020**
Procedural History
Action to recover damages for public nuisance,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before Kamp, J.; verdict
for the named defendant; subsequently, the court
denied the plaintiff’s motions to set aside the verdict
and for a new trial, and rendered judgment in accor-
dance with the verdict, from which the plaintiff
appealed to the Appellate Court, Sheldon, and Flynn,
Js., with Elgo, J., concurring in part and dissenting in
part, which reversed the judgment of the trial court and
remanded the case for further proceedings, and the
named defendant, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Thomas R. Gerarde, with whom were Eric E. Ger-
arde, and, on the brief, Beatrice S. Jordan, for the
appellant (named defendant).
A. Reynolds Gordon, with whom, on the brief, was
Frank A. DeNicola, Jr., for the appellee (plaintiff).
Opinion
KAHN, J. This certified appeal requires us to consider
whether the jury’s verdict in this case contains a fatal
inconsistency between two special interrogatories
relating to a count alleging absolute public nuisance,
one finding that a particular condition on the land was
inherently dangerous and the other finding that the
defendant’s use of the land was reasonable. The plain-
tiff, Gregg Fisk, brought the present action against the
named defendant, the town of Redding,1 alleging that
a specific retaining wall located outside of a local pub
should have been guarded by a fence and that the
absence of such a fence constituted a public nuisance
and caused him to sustain personal injuries. The defen-
dant appeals from the judgment of the Appellate Court,
which reversed the judgment rendered in favor of the
defendant and remanded the case for a new trial. Fisk
v. Redding, 190 Conn. App. 99, 113, 210 A.3d 73 (2019).
Specifically, the defendant claims that the Appellate
Court incorrectly concluded that the trial court abused
its discretion when it denied the plaintiff’s motion to
set aside the verdict, which had claimed that the jury’s
response to the first special interrogatory—that the
unfenced retaining wall was inherently dangerous—
was fatally inconsistent with its response to the third
special interrogatory that the defendant’s use of the
land was reasonable. Id., 103, 112. Because we conclude
that the jury’s answers to the first and third special
interrogatories can be harmonized in light of our estab-
lished nuisance jurisprudence, we conclude that the
Appellate Court incorrectly concluded that the trial
court had abused its discretion by denying the plaintiff’s
motion to set aside the verdict. We, therefore, reverse
the judgment of the Appellate Court.
The jury reasonably could have found the following
relevant facts. The retaining wall in question was con-
structed as a part of the defendant’s Streetscape Project
(project), which was funded by federal and state grants.2
This retaining wall is located at one end of a parking
lot used by the Lumberyard Pub (pub) in the town of
Redding. The primary entrances and exits of that park-
ing lot are connected to Route 57, which borders the
parking lot on one side. The retaining wall runs between
the parking lot and the intersection of Route 57 and
Main Street. That intersection sits partially below the
parking lot due to the downward slope of the land and
the construction of the retaining wall. To the right of
the exit to the parking lot, as Route 57 moves downhill
toward Main Street, there is an ‘‘area of refuge’’ between
Route 57 and the granite curb. The ‘‘area of refuge’’ is
separated from Route 57 by a white line and is designed
to be used by pedestrians, bicyclists, and joggers as they
approach the intersection of Route 57 and Main Street.
The construction of the retaining wall was supervised
by the Department of Transportation (department).
During the design phase of the project, the department’s
design engineer supervisor, Tim Fields, approved the
construction of a five foot retaining wall without a fence
running atop it. While the retaining wall was being built,
it became clear that the final structure would need to
be taller than five feet at its highest point due to the
downward slope of a driveway situated below the wall.
Alterations to the retaining wall’s design were imple-
mented through a ‘‘change order process’’ that provided
notice to the department of the modifications. The mod-
ified construction plan called for the building of a
retaining wall that would be just under six feet tall at
its highest point, as well as the installation of a ‘‘Merritt
Parkway’’ style guardrail at the end of the parking lot,
and an area of dense landscaping between the guardrail
and the top of the wall. In its final form, the retaining
wall complied with the Connecticut State Building
Code, which governs the construction of retaining walls
within the state. On June 16, 2011, department engineers
conducted a semifinal walk-through of the nearly com-
pleted project. During the walk-through, no engineers
raised any concerns regarding the absence of a fence
atop the retaining wall.
The plaintiff was familiar with both the pub and its
adjacent parking lot. In fact, prior to moving away from
the area in 2007, the plaintiff worked just down the
street from the pub for seven years. In May, 2011, the
plaintiff moved within a mile of the pub and began
frequenting it between one and two times per week.
The plaintiff testified that when he left the pub after
his weekly or semiweekly visits, he typically walked
through the pub’s parking lot, out of the designated
exit, and onto the ‘‘area of refuge,’’ which he used to
turn right onto Main Street.
On the evening of August 26, 2011, at approximately
8:30 p.m., the plaintiff went to the pub for dinner and
drinks. At around 2 a.m., the plaintiff left the pub after
having consumed approximately five beers. In order to
reach Main Street more quickly, the plaintiff crossed
the pub’s parking lot, climbed over the guardrail, walked
through the landscaping, and approached the retaining
wall. The plaintiff testified that he was aware of the
drop but was not aware of the actual distance between
the wall and the ground below. As the plaintiff walked
along the top of the retaining wall, he fell and injured
his leg and ankle in several places.
The plaintiff subsequently brought the present action
against the defendant, alleging that he was injured when
he fell off of the retaining wall and that, because the
retaining wall ‘‘had no protective fencing,’’ it was ‘‘inher-
ently dangerous and constituted an absolute nuisance.’’
The defendant filed an answer and asserted the special
defenses of assumption of the risk and recklessness.
The plaintiff’s public nuisance action proceeded to a
jury trial on July 19, 2016. During trial, several witnesses
offered testimony relevant to both liability and dam-
ages. The plaintiff testified about the night in question
and the injuries he sustained from his fall. The jury
also heard testimony from James Fielding, the project
manager who oversaw the construction of the retaining
wall, as well as Richard Ziegler, a forensic engineer and
the plaintiff’s expert witness. Various exhibits were also
introduced, including photographs of the retaining wall,
the surrounding area, the Merritt Parkway style guard-
rail, and the landscaping between the guardrail and the
retaining wall.
Before the jury began its deliberations, the trial court
charged the jury in relevant part: ‘‘First, the plaintiff
must prove that the retaining wall was inherently dan-
gerous . . . that it had a natural tendency to create
danger and to inflict injury upon person or property. It
is the condition itself which must have a natural ten-
dency to create danger and inflict injury. You, as the
trier of fact, must consider all of the circumstances
involved in determining whether . . . the condition in
that particular location had a natural tendency to create
danger and inflict injury. Second, the plaintiff must
prove that the danger was a continuing one. . . . Third,
the plaintiff must prove that the use of the land, in this
case the retaining wall, was unreasonable or unlawful.
In making a determination concerning the reasonable-
ness of the use of the land, all the surrounding factors
must be considered. Fourth, the plaintiff must prove
that the condition interferes with a right common to
the general public. . . . If you find that the plaintiff
has proven the above elements of a public nuisance,
next the plaintiff must prove that the nuisance was a
proximate cause of the injuries suffered by [the plain-
tiff]. . . . If the plaintiff fails to prove any one element,
then a public nuisance has not been established, and
you should return a verdict for the defendant.’’3
The trial court, in explaining the verdict forms and the
special interrogatories, also instructed the jury: ‘‘[F]or
example, you respond to question one. If you answer
no, as the instructions indicate, you must return a ver-
dict for the defendant, and you would fill out the defen-
dant’s verdict form and that would end your delibera-
tions. If you answer number one yes, as the instructions
indicate, then you go on to question two, and you
answer that question. After question two, if you were
to answer that question no, then you would return a
verdict for the defendant using the defendant’s verdict
form. If you answer yes, you continue to number three.
And you continue through the process until you’ve
reached your verdict either using one or the other of
the verdict forms. You necessarily also have to complete
the jury interrogatories at least completely or to where
you stop if you answer a question no.’’
The trial court then submitted seven special interrog-
atories to the jury. The special interrogatories relevant
to this appeal, special interrogatories one and three,
provided: (1) ‘‘Has [the] plaintiff proven to you, by a
preponderance of the evidence, that the condition com-
plained of, the subject retaining wall was inherently
dangerous in that it had a natural tendency to inflict
injury on person or property?’’ And (3) ‘‘Has [the] plain-
tiff proven to you, by a preponderance of the evidence,
that the defendant’s use of the land was unreasonable
or unlawful?’’
During its deliberations, the jury submitted a note to
the court with the following question: ‘‘If we are not
all in agreement on questions [one and two] but are on
question . . . three, are we able to rule in favor of
the defendant?’’ (Emphasis omitted.) The court and the
attorneys for both the plaintiff and the defendant
engaged in an extensive discussion of this question
outside the presence of the jury. During this discussion,
the plaintiff’s counsel stated: ‘‘[I]f some of them are
saying that the wall was . . . inherently dangerous and
the danger was continuing, then that means that it has
to be unreasonable.’’ The court disagreed, responding
that the ‘‘law requires that you, on behalf of your client,
prove all four elements, and if you can’t prove each
element, then there’s a defendant’s verdict.’’ The plain-
tiff’s attorney responded by noting, ‘‘we don’t abandon
our position.’’
The court ultimately responded to the jury’s question
as follows: ‘‘Ladies and gentlemen, I instructed you on
the law, and you have my charge as a court exhibit.
And the plaintiff has the burden of proof, as I indicated
in my charge, to prove essentially four elements of an
absolute public nuisance . . . . If the jury can unani-
mously . . . agree that the plaintiff has not proven one
of those four elements and you can agree upon that,
and in this case, if it’s number three and you so indicate
on your jury verdict interrogatories and you check that
unanimously in the negative, then you . . . can return
a verdict in . . . favor of the defendant. But you must
all unanimously agree that [the plaintiff] has not proven
one element of the cause of action.’’
At the end of its deliberations, the jury returned a
verdict in favor of the defendant and provided answers
to three of the seven special interrogatories. The jury
responded in the affirmative to special interrogatories
one and two, finding that the retaining wall was inher-
ently dangerous and that the danger was a continuing
one. In response to special interrogatory three, the jury
answered in the negative, indicating that the jury did
not believe that the plaintiff had proven by a preponder-
ance of the evidence that the defendant’s use of the
land was unreasonable.4
The plaintiff filed a timely motion to set aside the
verdict, claiming, inter alia, that the jury’s answer to
the first special interrogatory, which found that the
condition of an unfenced retaining wall was inherently
dangerous, was fatally inconsistent with the jury’s
answer to the third special interrogatory, which found
that the defendant’s use of the land was reasonable.
The court subsequently issued a written memorandum
of decision in which it denied the motion, concluding
that ‘‘the jury’s responses to the interrogatories were
not inconsistent because there was evidence that
allowed the jury to determine that, although the wall
was unreasonably dangerous, it was not an unreason-
able use of the land.’’ The trial court rendered judgment
for the defendant in accordance with the jury’s verdict.
The plaintiff thereafter appealed from that judgment
to the Appellate Court. See Fisk v. Redding, supra, 190
Conn. App. 102. In that appeal, the plaintiff argued,
inter alia,5 that the trial court had improperly denied
his motion to set aside the verdict because the jury’s
responses to the first and third special interrogatories
were fatally inconsistent and could not be harmonized.
Id., 103. In a split decision, the Appellate Court agreed
with the plaintiff and reversed the judgment rendered
in favor of the defendant and remanded the case for a
new trial. Id., 111–13.
In its decision, the Appellate Court concluded that,
‘‘as a matter of law, the jury could not have determined
that the retaining wall without a fence was both inher-
ently dangerous and not an unreasonable use of the
land.’’ Id., 111. The Appellate Court focused much of
its reasoning on the third element and stated that the
proper focus of the unreasonable use prong of an abso-
lute public nuisance claim is the alleged inherently dan-
gerous condition at issue. Id., 110–11.
In determining whether a juror could have reasonably
found that the ‘‘condition at issue’’ did not constitute
an unreasonable use of the land, the Appellate Court
focused on the utility of the fenceless retaining wall.
Id. Concluding that the fenceless retaining wall was
both inherently dangerous and lacked any social utility,
the Appellate Court stated that the retaining wall consti-
tuted an unreasonable use of the land as a matter of
law. Id. The Appellate Court summarized its conclusion
as follows: ‘‘[T]here is no scenario under which the jury
reasonably could have determined, after concluding
that the retaining wall without a fence was inherently
dangerous, that the fact that the retaining wall lacked
a fence served any utility to either [the town] or the
community, or that a weighing of all relevant circum-
stances could make the use of the land for an unfenced
wall that is inherently dangerous and lacks any utility,
reasonable.’’ Id., 111.
Writing separately, Judge Elgo disagreed with the
majority’s conclusion that the trial court had abused
its discretion, explaining that, in her view, the jury’s
answers to the first and third interrogatories were not
inconsistent and could be harmonized in accordance
with this court’s established public nuisance jurispru-
dence. See id., 114–15 (Elgo, J., concurring and dis-
senting). According to Judge Elgo, the majority erred
in focusing merely on ‘‘the inherent nature of the condi-
tion’’ itself when determining whether the defendant’s
use of the land was reasonable. (Emphasis omitted.)
Id., 118. Judge Elgo concluded that the trial court’s
charge to the jury regarding the third element of an
absolute public nuisance claim properly reflected this
court’s jurisprudence and correctly instructed the jury
to ‘‘consider whether the use of the land on which the
retaining wall was erected was unreasonable in light
of the surrounding circumstances.’’ Id., 115–16.
According to Judge Elgo, evidence presented at trial
regarding the circumstances surrounding the retaining
wall provided the jury with an ‘‘adequate evidentiary
basis to conclude that the defendant’s use of the land
did not constitute an unreasonable interference with a
right common to the general public . . . .’’ Id., 122.
This certified appeal followed.6
In the present appeal, the defendant argues that the
Appellate Court incorrectly concluded that the trial
court abused its discretion when it denied the plaintiff’s
motion to set aside the verdict. Specifically, the defen-
dant argues that the Appellate Court made two errors
in concluding that the interrogatories were fatally
inconsistent and could not be harmonized. First, the
defendant contends that the Appellate Court incorrectly
focused exclusively on the absence of a fence when
analyzing the reasonableness of the defendant’s use of
the land. Second, the defendant argues that, on the
basis of the evidence presented at trial, the jury reason-
ably could have concluded that the retaining wall in
question was inherently dangerous but did not consti-
tute an unreasonable use of the land in light of the
surrounding circumstances.
In response, the plaintiff claims that the Appellate
Court correctly determined that the interrogatories in
question were fatally inconsistent and that, as a result,
the trial court abused its discretion by denying his
motion to set aside the jury’s verdict. The plaintiff
argues, inter alia, that the Appellate Court correctly
interpreted this court’s public nuisance jurisprudence
by focusing on the ‘‘condition at issue’’ when consider-
ing the reasonableness of the defendant’s use of the
land. (Emphasis omitted; internal quotation marks omit-
ted.)
We begin by noting the standard of review and the
general principles of law applicable to the defendant’s
claim. ‘‘The proper appellate standard of review when
considering the action of a trial court in granting or
denying a motion to set aside a verdict is the abuse of
discretion standard. . . . In determining whether there
has been an abuse of discretion, every reasonable pre-
sumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done. . . . [T]he role
of the trial court on a motion to set aside the jury’s
verdict is not to sit as [an added] juror . . . but, rather,
to decide whether, viewing the evidence in the light
most favorable to the prevailing party, the jury could
reasonably have reached the verdict that it did.’’ (Cita-
tion omitted; internal quotation marks omitted.) Hall
v. Bergman, 296 Conn. 169, 179, 994 A.2d 666 (2010);
see also Rawls v. Progressive Northern Ins. Co., 310
Conn. 768, 776, 83 A.3d 576 (2014) (noting that trial
court, in ruling on motion to set aside verdict, exercises
‘‘broad legal discretion . . . that, in the absence of
clear abuse, we shall not disturb’’ (internal quotation
marks omitted)).7 When presented with a claim that a
jury’s response to a set of interrogatories is internally
inconsistent, ‘‘the court has the duty to attempt to har-
monize the answers’’ while giving the evidence ‘‘the
most favorable construction in support of the verdict
which is reasonable.’’ Norrie v. Heil Co., 203 Conn. 594,
606, 525 A.2d 1332 (1987).
This case involves a claim of absolute public nui-
sance. ‘‘Public nuisance law is concerned with the inter-
ference with a public right, and cases in this realm
typically involve conduct that allegedly interferes with
the public health and safety.’’ Pestey v. Cushman, 259
Conn. 345, 357, 788 A.2d 496 (2002). Claims of public
nuisance ‘‘fall into three general classes: (1) nuisances
which result from conduct of the public authority in
violation of some statutory enactment; (2) nuisances
which are intentional in the sense that the [public
authority] intended to bring about the [condition that]
. . . constitute[s] a nuisance; and (3) nuisances which
have their origin in negligence . . . .’’ (Internal quota-
tion marks omitted.) Kostyal v. Cass, 163 Conn. 92,
98–99, 302 A.2d 121 (1972). A public nuisance that
results from the intentional conduct of a public author-
ity, such as in this case, is known as an absolute public
nuisance. Id.In order to prevail on a claim of public nuisance, a
plaintiff ‘‘must prove that: (1) the condition complained
of had a natural tendency to create danger and inflict
injury upon person or property; (2) the danger created
was a continuing one; (3) the use of the land was unrea-
sonable or unlawful;8 [and] (4) the existence of the
nuisance was [a] proximate cause of the [plaintiff’s]
injuries and damages. . . . [W]here absolute public
nuisance is alleged, the plaintiff’s burden includes two
other elements of proof: (1) that the condition or con-
duct complained of interfered with a right common to
the general public . . . and (2) that the alleged nui-
sance was absolute, that is, that the defendants’ inten-
tional conduct, rather than their negligence, caused the
condition deemed to be a nuisance.’’ (Citations omitted;
footnote added; internal quotation marks omitted.)
State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn.
177, 183, 527 A.2d 688 (1987). Whether a plaintiff is able
to prove these elements is ‘‘a question of fact which is
ordinarily determined by the trier of fact.’’ (Internal
quotation marks omitted.) Tomasso Bros., Inc. v. Octo-
ber Twenty-Four, Inc., 221 Conn. 194, 197, 602 A.2d
1011 (1992).
For the past eighty years, this court has held that
‘‘[w]hether . . . a particular condition upon property
constitutes a [public] nuisance does not depend merely
upon the inherent nature of the condition . . . .’’
Balaas v. Hartford, 126 Conn. 510, 514, 12 A.2d 765(1940). Proving by a preponderance of the evidence
that the condition complained of has a natural tendency
to create danger and inflict injury is not enough. See
Beckwith v. Stratford, 129 Conn. 506, 508, 29 A.2d 775(1942). Instead, the third element of a public nuisance
claim requires a showing that the defendant’s use of
the land was also unreasonable or unlawful. Pestey v.
Cushman, supra, 259 Conn. 355–56 (identifying four
distinct elements of nuisance claim as product of this
court’s ‘‘public nuisance cases’’); see also Beckwith v.
Stratford, supra, 508 (‘‘[t]o constitute a nuisance in the
use of land, it must appear not only that a certain condi-
tion by its very nature is likely to cause injury but also
that the use is unreasonable or unlawful’’).
According to this court’s public nuisance jurispru-
dence, the reasonableness of the defendant’s use of
the land is determined through a ‘‘weighing process,
involving a comparative evaluation of [the] conflicting
interests’’ involved. (Internal quotation marks omitted.)
Walsh v. Stonington Water Pollution Control Author-
ity, 250 Conn. 443, 456, 736 A.2d 811 (1999). When
weighing the interests at issue, the fact finder is required
to take into account ‘‘all relevant facts’’ pertinent to the
defendant’s use of the land, ‘‘such as its location, its
adaptation to the beneficial operation of the property,
the right of members of the public to go upon the land
adjacent to it, and the use to which they would naturally
put that land.’’ (Internal quotation marks omitted.) Kos-
tyal v. Cass, supra, 163 Conn. 99, quoting Balaas v.
Hartford, supra, 126 Conn. 514. The ‘‘multiplicity of
factors’’ relevant to evaluating the reasonableness of
the defendant’s use of the land also includes ‘‘both the
general activity [on the land] and what is done about
its consequences.’’9 (Internal quotation marks omitted.)
Walsh v. Stonington Water Pollution Control Author-
ity, supra, 457–59.
In the present case, we conclude that the trial court
did not abuse its discretion when it denied the plaintiff’s
motion to set aside the verdict because the jury’s
answers to the first and third interrogatories, finding
that the retaining wall was inherently dangerous but
not an unreasonable use of the land, can be harmonized
in light of our established public nuisance jurispru-
dence. In reaching the opposite conclusion, the Appel-
late Court incorrectly focused its analysis under the
third element of a public nuisance claim solely on the
‘‘nature of the condition’’ itself, in this case, the narrow
concept of a retaining wall without a fence. See Fisk
v. Redding, supra, 190 Conn. App. 118. Analyzing the
reasonableness of the fenceless retaining wall in isola-
tion, the Appellate Court ignored the multiplicity of
factors that the jury could have taken into account in
its determination that the defendant’s use of the land,
when considered in context, was not unreasonable.
The Appellate Court erred by focusing its inquiry
under the third element exclusively on ‘‘[t]he condition
at issue . . . not the wall itself or [the project], but the
wall without a fence atop it.’’10 Id., 111. According to
the Appellate Court, the jury was required to consider
‘‘not . . . whether the wall itself had some use to hold
back the earth, but whether there was any useful public
purpose to erecting the wall without a fence atop it
. . . .’’ Id., 110–11. Concentrating exclusively on the
retaining wall’s lack of a fence, the Appellate Court
concluded that the fenceless nature of the wall served
no ‘‘utility to either the defendant or the community’’
and, therefore, that ‘‘a weighing of all relevant circum-
stances’’ could not make the use of the land reasonable
as a matter of law.11 Id., 111.
The Appellate Court’s treatment of the ‘‘condition at
issue’’ as the primary focus of the unreasonable use
element of a public nuisance claim is not supported by
this court’s precedent. Our prior case law demonstrates
that the unreasonable use inquiry in the public nuisance
context is not assessed by reference solely to the alleged
defect or deficiency in the condition at issue. In Balaas
v. Hartford, supra, 126 Conn. 511–12, 514, when
determining whether the trial court correctly concluded
that a ledge with a fifteen foot drop, located in Goodwin
Park in Hartford, did not constitute a public nuisance,
this court focused not on the ledge itself, but on how
the land surrounding the ledge was generally used and
on the absence of evidence that others had used it in
a manner similar to the plaintiff. When reviewing a trial
court’s determination that a public dump amounted to
an absolute public nuisance, this court, in Marchitto v.
West Haven, 150 Conn. 432, 436–38, 190 A.2d 597 (1963),
looked beyond the condition of the dump itself and
considered the surrounding circumstances, including
the nature and use of the land around the dump and
the absence of security measures designed to prevent
the public from improperly accessing the dump. In
order to determine whether the complained of nuisance
in Laspino v. New Haven, 135 Conn. 603, 604–605, 609,
67 A.2d 557 (1949), a waterway in a partially developed
park, made the defendant’s use of the land unreason-
able, we focused on the reasonableness of the defen-
dant’s overall plan to ‘‘[develop and open the] land as a
public park,’’ not on the condition of the waterway itself.
The proper inquiry according to our precedent is not
whether the inherently dangerous condition alone is
reasonable, but whether the defendant’s use of the land
constitutes a reasonable ‘‘use of the property in the
particular locality under the circumstances of the case.’’
(Internal quotation marks omitted.) Nicholson v. Con-
necticut Half-Way House, Inc., 153 Conn. 507, 510, 218
A.2d 383 (1966). When considering the reasonableness
of the defendant’s use of the land, the condition at issue
cannot be viewed in isolation but, instead, must be
viewed in the context of the surrounding circum-
stances. See Pestey v. Cushman, supra, 259 Conn.
352–53 (‘‘[u]nreasonableness cannot be determined in
the abstract, but, rather, must be judged under the cir-
cumstances of the particular case’’); see also Beckwith
v. Stratford, supra, 129 Conn. 508 (noting that ‘‘the same
conditions may constitute a nuisance in one locality or
under certain circumstances, and not in another locality
or under other circumstances’’).
When determining if the defendant’s use of the land
is reasonable in light of the surrounding circumstances,
the fact finder is allowed to consider all of the factors
surrounding the use in question. See Walsh v. Stoning-
ton Water Pollution Control Authority, supra, 250
Conn. 457 (noting that, under third element, jury ‘‘must
consider the location of the condition and any other
circumstances . . . which indicate whether the defen-
dants [were] making a reasonable use of the property’’
(emphasis omitted; internal quotation marks omitted)).
As we have previously noted, the factors that this court
has looked to when determining the reasonableness of
the use of land in the public nuisance context include
the ‘‘location, its adaptation to the beneficial operation
of the property, the right of members of the public to
go upon the land adjacent to it . . . the use to which
they naturally put that land’’; (internal quotation marks
omitted) Kostyal v. Cass, supra, 163 Conn. 99, quoting
Balaas v. Hartford, supra, 126 Conn. 514; and both ‘‘the
general activity [on the land] and what is done about
its consequences.’’ (Internal quotation marks omitted.)
Walsh v. Stonington Water Pollution Control Author-
ity, supra, 459. In considering these factors, this court
has looked to the location of the condition itself; see
Kostyal v. Cass, supra, 99; the absence of evidence that
persons other than the plaintiff had been injured by the
condition; see Balaas v. Hartford, supra, 514; and the
defendant’s failure to adopt reasonable safety measures
that could have mitigated the danger posed by the condi-
tion. See Marchitto v. West Haven, supra, 150 Conn.
436–37.
In this case, the trial court’s following instruction to
the jury correctly reflected the focus of the inquiry, as
dictated by our prior precedent: ‘‘In making a determi-
nation concerning the reasonableness of the use of the
land, all the surrounding factors must be considered.’’
(Emphasis added.) Judge Elgo aptly summarized the
inquiry put to the jury under the third interrogatory:
‘‘Unlike the first interrogatory, which required the jury
to determine whether the retaining wall itself was inher-
ently dangerous, the inquiry under the third interroga-
tory required the jury to consider whether the use of
the land on which the retaining wall was erected was
unreasonable in light of the surrounding circum-
stances.’’ (Emphasis omitted.) Fisk v. Redding, supra,
190 Conn. App. 116 (Elgo, J., concurring in part and
dissenting in part). When conducting this inquiry, ‘‘the
jury was not confined to a review of the retaining wall
in isolation. Rather, the jury was required to ‘take into
account a multiplicity’ of surrounding factors . . .
including ‘both the general activity [on the land] and
what is done about its consequences.’ ’’ (Citation omit-
ted.) Id., 118.
During the trial, the jury received considerable evi-
dence of the various circumstances surrounding the
retaining wall. As Judge Elgo noted, the jury ‘‘was pre-
sented with an abundance of documentary and testimo-
nial evidence, including several photographs of the land
in question, indicating that both a guardrail barrier and
a dense landscaping buffer separated the retaining wall
from the adjacent parking lot, from which it is undis-
puted that the plaintiff entered the land. . . . Fielding,
who served as the project manager and oversaw con-
struction of the retaining wall, testified at trial that
installing a fence on the retaining wall ‘was never dis-
cussed’ because the defendant ‘had the guardrail in
place serving to protect vehicles and pedestrians.’
Beyond that, the plaintiff’s own expert witness, forensic
engineer . . . Ziegler, conceded at trial that the guard-
rail barrier was an effective means of keeping people
out of the area between the retaining wall and the park-
ing lot.’’ (Citation omitted.) Id., 118–19. The jury was
also presented with no evidence that any individual,
including the plaintiff himself, had previously walked
over the guardrail barrier, navigated through the dense
landscaping, and fallen off the wall. See id., 120 and
n.7. In terms of the overall utility of the retaining wall,
the jury was presented with ‘‘evidence of the necessity
and, hence, utility, of the retaining wall, as it was con-
structed to replace an existing retaining wall and meant
to preserve the public’s right to traverse Main Street
below, particularly pedestrians, bicyclists, and joggers.’’
Id., 118.
Reviewing the totality of the evidence presented at
trial, the jury in the present case could have reasonably
concluded that the defendant’s use of the land was
reasonable in light of the benefits of the retaining wall,
the steps that the defendant took to mitigate the danger
posed by the retaining wall, such as the placement of
the guardrail and dense vegetation between the parking
lot and the retaining wall, and the absence of any evi-
dence that other individuals had fallen off of the
retaining wall prior to the defendant’s accident. Id.,119–20 (Elgo, J., concurring in part and dissenting in
part). By framing the third element as an inquiry ‘‘not
[into] whether the wall itself had some use to hold
back the earth, but whether there was any useful public
purpose to erecting the wall without a fence atop it,’’
the Appellate Court incorrectly restricted the focus of
the inquiry and, as a result, failed to consider the various
factors that could support the jury’s conclusion that,
despite the inherent dangerousness of the retaining
wall, the defendant’s use of the land was reasonable in
light of the surrounding circumstances. Id., 110–11.
Viewing the evidence presented in this case in accor-
dance with our established nuisance jurisprudence and
in a light most favorable to upholding the jury’s verdict;
see, e.g., Hall v. Bergman, supra, 296 Conn. 179; it is
clear that the jury reasonably could have concluded
that, although the retaining wall was inherently danger-
ous, the defendant’s use of the land was reasonable in
light of the surrounding circumstances. Because the
jury’s answers to the first and third special interrogato-
ries are not inconsistent, the trial court did not abuse
its discretion in denying the plaintiff’s motion to set
aside the verdict.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** November 9, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We note that the plaintiff also named BL Companies, Inc., and M. Ron-
dano, Inc., as defendants in the present action. The defendant BL Companies,
Inc., was awarded summary judgment by the trial court, a decision that was
subsequently upheld by the Appellate Court. See Fisk v. Redding, 164 Conn.
App. 647, 649, 138 A.3d 410 (2016). Following the Appellate Court’s decision
in that appeal, the plaintiff voluntarily withdrew his claims against M. Ron-
dano, Inc. In the interest of simplicity, we refer to the town of Redding as
the defendant throughout this opinion.
2
This retaining wall was built in order to replace a timber retaining wall
that had previously existed in the same location.
3
Although the trial court correctly instructed the jury on the elements
of a public nuisance claim, we note that greater specificity regarding the
unreasonableness inquiry may be beneficial to jurors who are tasked with
navigating this complex area of tort law. To illuminate the contours of this
inquiry, trial courts may consider providing jurors with examples of the
factors that this court has identified as relevant to determinations of unrea-
sonableness in the nuisance context. See Walsh v. Stonington Water Pollu-
tion Control Authority, 250 Conn. 443, 459, 736 A.2d 811 (1999) (‘‘[t]he
conduct for which the utility is being weighed includes both the general
activity and what is done about its consequences’’ (internal quotation marks
omitted)); Kostyal v. Cass, 163 Conn. 92, 99, 302 A.2d 121 (1972) (‘‘[w]hether
. . . the particular condition of which the plaintiffs complain constituted
a nuisance does not depend merely upon the inherent nature of the condition,
but involves also a consideration of all relevant facts, such as its location, its
adaptation to the beneficial operation of the property, the right of members
of the public to go upon the land adjacent to it, and the use to which they
would naturally put that land’’ (internal quotation marks omitted)); see also
footnote 9 of this opinion.
We also note that the plaintiff did not substantively challenge either the
trial court’s charge to the jury relating to the third element or the wording
of the interrogatories. The plaintiff’s sole exception to the proposed charge
related to the first element and concerned the trial court’s decision not to
include the modifier ‘‘without a fence’’ after the words ‘‘retaining wall’’ under
the first element. We note here, however, that, because the retaining wall
lacked a fence at the time of the defendant’s fall, the absence of the fence
was necessarily considered by the jury when it concluded that the retaining
wall, at the time of the defendant’s injury, was inherently dangerous. The
absence of the plaintiff’s requested modifier had no impact on the jury’s
deliberations under the first element.
4
The jury left special interrogatories four, five, six, and seven unanswered.
5
The plaintiff also appealed the trial court’s exclusion of evidence of
remedial measures taken by the defendant following his injury. Fisk v.
Redding, supra, 190 Conn. App. 101. This issue is not presented to us
on appeal.
6
This court granted the defendant’s petition for certification to appeal,
limited to the following question: ‘‘Did the Appellate Court correctly deter-
mine that the jury’s verdict should be set aside because the jury’s response
to the first special interrogatory, that the condition of an unfenced retaining
wall was inherently dangerous, was fatally inconsistent with its response
to the third special interrogatory, that the defendant’s use of the land never-
theless was not unreasonable?’’ Fisk v. Redding, 332 Conn. 911, 209 A.3d
645 (2019).
7
We note that this court will review a trial court’s ruling on a motion to
set aside a verdict under a plenary standard of review when the claim turns
on a question of law. See, e.g., Snell v. Norwalk Yellow Cab, Inc., 332 Conn.
720, 763, 212 A.3d 646 (2019). The parties agree that an abuse of discretion
standard applies to the present appeal.
8
The parties do not dispute that this court’s established public nuisance
jurisprudence requires the fact finder, under the third element of the cause
of action, to focus on the reasonableness of the defendant’s use of the land.
We recognize that, in the private nuisance context, this court has changed the
focus of the third element to examine the reasonableness of the defendant’s
alleged interference with the plaintiff’s use and enjoyment of the plaintiff’s
property. See Pestey v. Cushman, supra, 259 Conn. 360–61. The Restatement
(Second) of Torts embraces a similar approach in its treatment of public
nuisance claims. See 4 Restatement (Second), Torts § 821B (1), p. 87 (1979)
(‘‘[a] public nuisance is an unreasonable interference with a right common
to the general public’’). Because the claim before us turns on whether
the jury’s responses to the first and third special interrogatories can be
harmonized under our existing case law, we need not address the distinction
between the Restatement (Second) of Torts and the unreasonableness
inquiry dictated by our public nuisance jurisprudence.
9
The Restatement (Second) of Torts provides that the reasonableness of
an intentional invasion of a public right is determined by weighing the
gravity of the interference with the utility of the defendant’s conduct. See
4 Restatement (Second), Torts § 826, p. 119 (1979) (‘‘[a]n intentional invasion
of another’s interest in the use and enjoyment of land is unreasonable if
. . . the gravity of the harm outweighs the utility of the actor’s conduct’’);
see also id., comment (a), pp. 119–20. We have not previously adopted
the weighing analysis articulated in §§ 826 through 831 of the Restatement
(Second) of Torts in the context of claims of public nuisance. We note,
however, that the inquiry dictated by our public nuisance jurisprudence
necessarily requires the fact finder to engage in a similar comparative analy-
sis of the benefits and harms posed by the defendant’s use of the land. See,
e.g., Balaas v. Hartford, supra, 126 Conn. 514; see also Walsh v. Stonington
Water Pollution Control Authority, supra, 250 Conn. 457; Maykut v. Plasko,
170 Conn. 310, 314, 365 A.2d 1114 (1976); O’Neill v. Carolina Freight Carriers
Corp., 156 Conn. 613, 617–18, 244 A.2d 372 (1968); Nair v. Thaw, 156 Conn.
445, 452, 242 A.2d 757 (1968).
10
In his brief, the plaintiff commits the same error as the Appellate Court
and suggests that the proper focus of the unreasonable use inquiry is the
‘‘dangerous condition,’’ in this case, the ‘‘retaining wall without a fence.’’
(Emphasis in original.)
11
If an isolated analysis of the inherently dangerous condition could sup-
port a finding that the defendant’s use of the land was unreasonable and
that the complained of condition constituted a public nuisance as a matter
of law, the third element of a public nuisance claim would be rendered
superfluous. Such an interpretation of the elements of a public nuisance
cause of action is inconsistent with our prior case law and the long estab-
lished principle that the first and third elements of a public nuisance cause
of action are distinct. See Beckwith v. Stratford, supra, 129 Conn. 508 (‘‘[t]o
constitute a nuisance in the use of land, it must appear not only that a
certain condition by its very nature is likely to cause injury but also that
the use is unreasonable or unlawful’’).