Robles v. West Avenue Dental, P.C.

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ANDREA ROBLES ET AL. v. WEST AVENUE
DENTAL, P.C., ET AL.
(AC 39747)
Sheldon, Prescott and Bear, Js.
Syllabus
The plaintiff, a former employee of the defendants, sought to recover dam-
ages from the defendants for, inter alia, injuries she suffered as a result
of the defendants’ negligent supervision of one of the plaintiff’s cowork-
ers, who sexually harassed her at work over an extended period of time.
Following a trial, a jury returned a verdict for the plaintiff on her claim
of negligent supervision. Before accepting the verdict, the court
announced to counsel, without objection, that it would review the jury’s
interrogatories, worksheet and verdict forms to ensure that the docu-
ments were in order. After conducting its review, the court reported
that it had found inconsistencies in the verdict form and interrogatories.
Specifically, the jury had indicated that it found liability on the count
alleging negligent supervision but had awarded zero damages to the
plaintiff. The court reviewed for the jury the rule in Connecticut that,
for a negligence claim, there needed to be an actual injury, and, if the
jury found that there were no damages, then the verdict should be for
the defendants. The court further stated that the jury could reconsider
its award of damages. The parties did not object to the court’s finding
that the verdict was inconsistent or except to its clarifying instructions
to the jury. Prior to excusing the jury, the court granted a request
from the defendants’ counsel for a sidebar discussion, and, immediately
following, it gave further instructions to the jury, to which there was
no exception from either party. After the jury had been excused to
resume deliberations, the defendants’ counsel explained for the record
that the concern she had expressed at the sidebar conference was that
the jury should be reminded that the plaintiff was required to prove that
she had suffered actual harm in order to establish a claim of negligent
supervision. Thereafter, the jury returned a verdict for the plaintiff on
the count of negligent supervision and awarded her damages, and the
court accepted that verdict without objection from counsel. Thereafter,
the trial court rendered judgment for the plaintiff, from which the defen-
dants appealed to this court. The only claim of error that the defendants
did not abandon for failure to brief it adequately was their claim that
the court misconstrued the jury’s original verdict as ambiguous and
erred in returning the jury for further deliberations with instructions
that it could not return a plaintiff’s verdict without awarding the plaintiff
damages, instead of accepting and rendering judgment for the plaintiff
on the original verdict. Held that the defendants having failed to preserve
that claim at trial, they could not seek review of it on appeal; the
defendants did not object to the jury instructions given by the court,
to the court’s determination that the jury’s initial verdict was inconsistent
or to its resulting decision to return the jury for further deliberations
to clarify its verdict instead of accepting that verdict as it was returned,
and, therefore, they had no right to seek appellate review of the alleged
errors in the court’s rulings.
Argued May 30—officially released October 9, 2018
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged negligent supervision, and for other relief,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the jury before Povoda-
tor, J.; verdict and judgment for the plaintiffs, from
which the named defendant et al. appealed to this
court. Affirmed.
Kristan Peters-Hamlin, for the appellants (named
defendant et al.).
Daniel D. Dauplaise, with whom, on the brief, was
Victoria deToledo, for the appellee (named plaintiff).
Opinion
PER CURIAM. The defendants West Avenue Dental,
P.C., and Hrishikesh Gogate1 appeal from the judgment
of the trial court, rendered after a jury trial, awarding
damages to the plaintiff Andrea Robles,2 their former
employee, for injuries she suffered due to the defen-
dants’ negligent supervision of one of her male cowork-
ers, who sexually harassed her at work over an
extended period of time. The defendants challenge the
judgment on the ground that the verdict on which it
was rendered was returned after the court erroneously
determined that it could not accept the jury’s original
plaintiff’s verdict awarding Robles $0 in damages
because that verdict was inherently inconsistent, and,
thus, improperly required the jury to conduct further
deliberations to resolve the alleged inconsistency
instead of accepting the original verdict and rendering
judgment on it. The defendants claim on appeal that
the court erred in concluding that the jury’s original
verdict was inherently inconsistent, and, thus, in refus-
ing to accept and render judgment on that verdict. They
argue that an award of $0 in damages was reasonable
in this case because the damages claimed by Robles
were largely speculative and unproved, and any dam-
ages she did prove could have been reduced by the jury
under the court’s instructions on their special defense
of failure to mitigate damages. Finally, the defendants,
claiming that the court erred in instructing the jury that
it must award Robles at least some damages if it found
the defendants liable for negligent supervision, ask this
court to restore the original plaintiff’s verdict awarding
Robles $0 in damages. Robles, in opposition to the
defendants’ claim, argues principally that the defen-
dants are not entitled to prevail on that claim because
they failed to assert it at trial, and, thus, they failed to
preserve it for appellate review. In light of the following
facts and procedural history, we agree with Robles that
the defendants’ present claim was not preserved at trial
and, thus, that it cannot be reviewed on appeal.
Robles and one of her former female coworkers filed
a twenty-two count complaint against the defendants
arising, inter alia, from the defendants’ alleged failure to
supervise one of their male coworkers who repeatedly
sexually harassed them while they were in the defen-
dants’ employ. Eleven counts of the complaint were
brought on behalf of Robles.
After a lengthy trial, the jury found in favor of the
defendants on ten of Robles’ eleven counts against
them. This appeal concerns only her seventh count, in
which she pleaded the claim of negligent supervision
on which she prevailed at trial. In that count, Robles
alleged, inter alia, that the defendants failed to properly
supervise one of her male coworkers whom they had
a duty to supervise, and thereby allowed him to engage
in sexually inappropriate conduct toward her, that the
defendants were aware or should have been aware of
her coworker’s sexually inappropriate conduct toward
her but failed take action to stop it, and, that as a result
of the defendants’ failure to take action to stop her
coworker’s sexually harassing conduct toward her, she
suffered financial losses and emotional distress. The
jury was instructed on that count, in relevant part, as
follows: ‘‘A claim for negligent supervision . . . estab-
lishes direct liability for an employer who fails to exer-
cise reasonable care in supervising . . . an employee.
In order to prevail on a negligent supervision claim,
[the] [plaintiff] must . . . prove that [she] suffered an
injury due to the defendant[s’] failure to supervise an
employee whom the defendant[s] had [a] duty to super-
vise. . . .
‘‘[W]ith respect to the [claim] of negligent supervision
. . . proof of an actual injury is a necessary part of the
claim. The [plaintiff] [is] not entitled to recover under
negligence-based claims if [she does] not also prove
an actual injury—something more than a technical or
nominal injury. . . .’’ (Internal quotation marks omit-
ted.) The jury was provided a copy of the jury charge
and a set of interrogatories, a worksheet and verdict
forms to complete during its deliberations.
The jury initially filled out the interrogatories regard-
ing Robles’ negligent supervision claim as follows: ‘‘Did
[Robles] prove, by a preponderance of the evidence
that the defendants were negligent in their supervision
of [her male coworker]? Yes. . . .
‘‘Did the defendants prove that [Robles] . . . was
negligent, as alleged by the defendants? Yes. . . .
‘‘The parties proved that the respective negligence of
the parties is as follows (must add up to 100 [percent]):
Negligence of defendants: 50 [percent]; negligence of
[Robles]: 50 [percent]. . . .
‘‘Did [Robles] . . . prove that she was injured or
damaged as a result of such negligent supervision? No.’’
When the jury returned to the courtroom after send-
ing out a note informing the court that it had reached
a verdict, the court announced that it would first review
the verdict form and interrogatories by itself ‘‘to make
sure there are no problems,’’ and then, if it found that
those documents were in order, it would begin the for-
mal procedure of taking the verdict. Neither Robles
nor the defendants objected to the court’s announced
decision to review the verdict form and interrogatories
by itself to determine if they were in order before taking
the verdict, or asked the court if they could view the
verdict form and interrogatories before the court made
its determination and took whatever action it deemed
necessary before taking the verdict.
After completing its review, the court announced that
it had found certain inconsistencies in the verdict form
and interrogatories that it would require the jury to
resolve before a verdict could be taken. To that end,
without hearing from the parties, it instructed the jury
as follows: ‘‘On interrogatory number seven, you indi-
cate that you found there to be certain percentages
of liability, but then you indicate that there was—you
answered no to the issue of damages, but then you put
on a plaintiff’s verdict form zero.
‘‘The rule in Connecticut is for a negligence claim,
there needs to be an actual injury in order to find for
the plaintiff.
‘‘So if you are not finding any damages sustained by
the plaintiff, then I think [the verdict] should be for the
defendant[s] on that claim.
‘‘If you are feeling that there should be some kind of
damages award[ed], that’s something you can obviously
reconsider, but the point is there is an inconsistency
between saying you are finding for the plaintiff on a
negligence claim, but finding zero damages.
‘‘It either needs to be some damages or a determina-
tion for the defendant[s] on that claim, which in turn
would implicate potentially the verdict form that you
used.’’ The court also noted an inconsistency in the
jury’s worksheet answers, and instructed the jury to
review the worksheet as well. Neither Robles nor the
defendants objected to the court’s finding of inconsis-
tencies in the original verdict or excepted to its instruc-
tions as to how the jury should resolve those
inconsistencies and clarify its verdict.
Before the court excused the jury to return to the
jury room, counsel for the defendants asked to address
the court concerning the instruction it had just given,
suggesting that she could do so at the bench. The court
granted her request without objection by Robles’ coun-
sel, then held a sidebar discussion with counsel. Imme-
diately after the sidebar, the court turned to the jury
and further instructed it that, ‘‘the issue [on the interrog-
atory addressing the claim of negligent supervision was]
. . . unless [the jury found] damages as part of the
package, [it could not] find for the plaintiff. It’s either
[the] plaintiff has proven damages as part of the claim
in which case it’s [the] plaintiff’s award on that count,
or if the plaintiff hasn’t proven damages [the verdict
is] required to be for the defendant[s].’’ Neither party
excepted to the court’s post-sidebar instruction or
sought further relief from the court after that instruction
was given.
After the court excused the jury to resume its deliber-
ations, counsel for the defendants explained for the
record the substance of the concern that she had
expressed to the court at sidebar, which was that the
jury should be reminded that Robles was required to
prove that she had suffered actual harm in order to
establish her claim of negligent supervision. Counsel
did not state that she had objected to the court’s deter-
mination that there were inherent inconsistencies in
the jury’s original verdict, or its decision to require the
jury to deliberate further to resolve those inconsisten-
cies instead of accepting that verdict and rendering
judgment on it.
In the jury’s final verdict, which the court accepted
and recorded without objection by either party, it found
that Robles had proved that she was actually injured
or damaged as a result of the defendants’ negligent
supervision of her sexually abusive male coworker.
Accordingly, on the basis of its further finding that she
had suffered total damages of $11,900 as a result of
such negligent supervision,3 it awarded her damages of
$5950 after reducing her total damages by 50 percent
on the basis of comparative negligence.
In this appeal, the defendants initially set forth three
claims of error in their preliminary statement of issues:
(1) that the court erred in instructing the jury that it
must correct its original verdict of zero damages
because it had found liability for negligent supervision
and must instead award damages to Robles, despite the
highly speculative nature of her claim, based on the
court’s misunderstanding of the law of inconsistent ver-
dicts; (2) that the court erred by so instructing the
jury without first consulting with counsel and then by
refusing to allow the defendants to make a record of
their objection to the instruction before dismissing the
jury; and (3) the court erred by telling the jury that it
must award damages if it found liability by failing to
instruct the jury that it was permitted to award nominal
damages. In their brief, however, the defendants pre-
sented argument and analysis as to only the first of
those claims, which they rearticulated as follows:
‘‘Robles’ claim of injury was entirely speculative, and
unsupported by expert testimony; therefore, the jury’s
award of zero damages was not ambiguous, and the
court erred in requiring the jury to find some damages
in order to support its finding of liability.’’ As relief for
the court’s alleged error, the defendants ask this court
to ‘‘restore the jury’s original verdict of $0 damages
to Robles, and hold that Robles should be awarded
nothing.’’ So presented, the only claim of error that the
defendants have not abandoned by failing to brief it4 is
that the court misconstrued the jury’s original verdict
as ambiguous and, thus, erred in returning the jury for
further deliberations with instructions that it could not
return a plaintiff’s verdict without awarding Robles
damages instead of accepting and rendering judgment
for Robles on that original verdict. Robles responds
to the foregoing claim by arguing principally that the
defendants have no right to seek appellate review of
that claim because they failed to make that claim at
trial. We agree with Robles that the defendants failed
to preserve the only claim they have briefed on appeal
and, thus, that they have no right to seek appellate
review of that claim.
Appellate review of claims of error regarding jury
instructions and inconsistent verdicts is limited in scope
to objections raised by counsel at trial. See C. Tait &
E. Prescott, Tait’s Handbook of Connecticut Evidence
(5th Ed. 2014) § 1.30.1, pp. 95–96. In order to preserve
their claims of error, the defendants must have objected
when the jury instruction was given; see, e.g., State v.
Gebhardt, 83 Conn. App. 772, 780, 851 A.2d 391 (2004)
(appellate review of evidentiary rulings is limited to
specific legal issue raised by objection of trial counsel);
or filed a suitable request to charge. See Ulbrich v.
Groth, 310 Conn. 375, 424, 78 A.3d 76 (2013) (‘‘[i]t is
well settled . . . that a party may preserve for appeal
a claim that an instruction . . . was . . . defective
either by: (1) submitting a written request to charge
covering the matter; or (2) taking exception to the
charge as given’’ [internal quotation marks omitted]).
In light of the defendants’ complete failure to object to
the court’s determination that the jury’s initial verdict
was inconsistent or to its resulting decision to return
the jury for further deliberations to clarify its verdict
instead of accepting that verdict as it was returned, the
defendants have no right to seek appellate review of
alleged errors in such judicial rulings and actions at
this time.
The judgment is affirmed.
1
Tunxis Hill Dental, P.C., was also named as a defendant but is not a
party to this appeal. In this opinion we refer to West Avenue Dental, P.C.,
and Gogate as the defendants.
2
The complaint was initially filed by two plaintiffs, Robles and a former
female coworker. After the trial, the female coworker settled with the defen-
dants, and this appeal pertains only to Robles.
3
The jury found that Robles had suffered $0 in economic damages and
$11,900 in noneconomic damages as a result of the defendants’ negligent
supervision.
4
See, e.g., Harris v. Bradley Memorial Hospital & Health Center, Inc.,
306 Conn. 304, 319, 50 A.3d 841 (2012) (‘‘[a]n appellant who fails to brief a
claim abandons it’’ [emphasis omitted; internal quotation marks omitted]),
cert. denied, 569 U.S. 918, 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013).