Bilodeau v. City of Bristol

661 A.2d 1049, 38 Conn. App. 447, 1995 Conn. App. LEXIS 331
CourtConnecticut Appellate Court
DecidedJuly 18, 1995
Docket13154
StatusPublished
Cited by13 cases

This text of 661 A.2d 1049 (Bilodeau v. City of Bristol) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bilodeau v. City of Bristol, 661 A.2d 1049, 38 Conn. App. 447, 1995 Conn. App. LEXIS 331 (Colo. Ct. App. 1995).

Opinion

Heiman, J.

In this action sounding in nuisance, the plaintiff appeals from the judgment rendered after the trial court directed the jury to return a verdict in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) directed the jury to return a defendant’s verdict, (2) refused to permit the introduction into evidence of § 16-1 (b) of the code of the city of Bristol and (3) effectively barred the plaintiff from arguing money damages pursuant to General Statutes § 52-216b. We agree that the trial court acted improperly in directing a verdict in favor of the defendant and reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On May 16, 1989, at approximately 7:30 p.m., the plaintiff was driving a motor vehicle west on Memorial Boulevard near its intersection with Mellon Street, both public highways in the city of Bristol. As the plaintiff was proceeding on Memorial Boulevard, a large branch that overhung the west bound lane of travel from the north side of the highway fell from an oak tree and struck the roof of the plaintiff’s automobile, crushing the roof of the car almost to the level of the door. After the branch hit the car roof, the plaintiff’s automobile crossed the median divider in the center of Memorial Boulevard, grazed a pole and ultimately struck another oak tree where the vehicle came to rest.

[449]*449As a result of the incident, the plaintiff suffered various injuries, including lacerations on her nose and forehead, a displaced and comminuted left clavicle fracture, fractures of the right side sixth, seventh and eighth ribs, a left ankle sprain, and pain in the midback. The injuries to the shoulder girdle, thoraco-scapula, midback area, and left ankle are permanent. As a result of these injuries, the plaintiff was out of work from the date of the accident until August 14,1989, and incurred various expenses for hospital and medical care.

The branch that struck the plaintiff had broken off of one of the many oak trees that had been planted by the city of Bristol along Memorial Boulevard as a veterans memorial. It appeared to be in poor health and was rotted in the area of pruning cuts.

The property on which the trees were planted belongs to the defendant and employees of the defendant are responsible for maintaining and caring for the trees along Memorial Boulevard. The only records available revealed that the oaks on Memorial Boulevard were pruned in the spring of 1986. It is uncertain as to when any work was done on that area prior to that time. The pruning was carried out in flush cuts and did not comport with generally accepted methods for the pruning of such oak trees. Such improper pruning can create large wounds in the trees, which provide points of entry for decay. The branch that fell on the plaintiffs automobile showed pruning cuts in close proximity; the decay between the cuts had coalesced, which weakened the entire branch.

The case was submitted to the jury with interrogatories and the jury returned a plaintiff’s verdict in the amount of $50,000 and answers to the interrogatories. The trial court accepted the answers to the interrogatories but declined to accept the plaintiff’s verdict. The trial court then directed the jury to return a verdict [450]*450in favor of the defendant and the trial court accepted and rendered judgment on the directed verdict. The plaintiffs motion to set the directed verdict aside was denied. This appeal followed.

I

The plaintiff first asserts that the trial court improperly directed a verdict in favor of the defendant on the basis of an apparent inconsistency between the jury’s answer to one of the interrogatories submitted to it and the plaintiff’s verdict. The plaintiff asserts that under the circumstances of this case the trial court should not have directed a verdict but should have invalidated the entire verdict proceedings or returned the jury for further deliberations after a recharge as to the law in order to dispel any confusion that might have existed. We agree.

Certain additional procedural facts are necessary to a proper resolution of this claim. The trial court submitted to the jury six interrogatories.1 In the course of its charge, the trial court instructed the jury that the burden was on the plaintiff to establish by a fair preponderance of the evidence the five elements of nuisance and also that the nuisance was created by the positive act of the defendant or its employees.2 The trial [451]*451court did not, however, expressly instruct the jury that it had to answer each of the interrogatories in the [452]*452affirmative before it could return a verdict in favor of the plaintiff.3

The jury returned with the answers to the six interrogatories and with a plaintiff’s verdict in the amount of $50,000.4 The trial court examined the interrogato[453]*453ries and found that the jury had answered five of the six in the affirmative but had answered interrogatory number three, “Was the use of the land unreasonable?” in the negative. The verdict was read by the clerk but was not ordered accepted and recorded by the trial court. The trial court directed the clerk to read the interrogatories and the answers to them as returned by the jury. Upon inquiry after the answers to the interrogatories were read to them, the jurors indicated that the answers read constituted their answers to the interrogatories. The trial court ordered the answers to the interrogatories accepted and recorded and directed that the answers as accepted and recorded be read again. The jury again acknowledged the answers to the interrogatories.

The trial court excused the jury from the courtroom and heard argument by counsel regarding the effect of the inconsistency between the answers to the interrogatories and the verdict. After consideration, the trial court recalled the jury and informed it that its finding that the use of the land was not unreasonable necessitated a verdict for the defendant.5 The jury complied [454]*454with the court’s direction and returned a verdict in favor of the defendant.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion.” (Internal quotation marks omitted.) Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991); see also Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985). We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Giles v. New Haven, 228 Conn. 441, 444, 636 A.2d 1335 (1994); Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

In light of these standards, we conclude that the trial court improperly directed a verdict in favor of the defendant.

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Bluebook (online)
661 A.2d 1049, 38 Conn. App. 447, 1995 Conn. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bilodeau-v-city-of-bristol-connappct-1995.