Mallinson v. Black

675 A.2d 937, 41 Conn. App. 373, 1996 Conn. App. LEXIS 241
CourtConnecticut Appellate Court
DecidedMay 14, 1996
Docket14128
StatusPublished
Cited by6 cases

This text of 675 A.2d 937 (Mallinson v. Black) 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
Mallinson v. Black, 675 A.2d 937, 41 Conn. App. 373, 1996 Conn. App. LEXIS 241 (Colo. Ct. App. 1996).

Opinion

HEIMAN, J.

In this action sounding in negligence, 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 a verdict for the defendant after the jury had returned two contradictory and inconsistent verdicts, (2) directed a verdict for the defendant after the second verdict returned by the jury was, in and of itself, inconsistent, (3) posed an interrogatory to the jury prior to its reconsideration of its first verdict, (4) directed a verdict for the defendant before an interrogatory posed to the jury had been answered, and (5) directed a verdict for the defendant when it was clear that the jury was confused and that the jury’s verdicts were illogical and unreasonable in light of the instructions given to it. We affirm the judgment of the trial court.

The following allegations are contained in the plaintiffs “replacement amended complaint.” The plaintiff claimed that she retained the defendant, a professional engineer and land surveyor, to make all necessary surveys, examinations and investigations to locate the divisional lines of the plaintiffs tract of land located in Orange. According to the plaintiff, she informed the defendant that she intended to erect a single-family house in the center of the tract and to leave enough [375]*375room on the tract for a septic system and an in-ground swimming pool adjacent to the house.

The plaintiff asserted that the defendant accepted the engagement and undertook to establish the correct location of the property’s divisional lines. The plaintiff claimed that the defendant performed the work in a negligent manner and thereby failed to establish properly the north and south boundaries of the property. According to the plaintiff, the defendant failed to ascertain the correct boundary line between the plaintiffs property and the property of Louis Fantarella, a property owner whose land bordered the property of the plaintiff to the north, south and west.

The plaintiff claimed that the defendant advised her that the north divisional line of the property ran along a certain location, plus or minus two feet. According to the plaintiff, the defendant represented that this was the true and correct north divisional line within a small margin of error and that the plaintiff was absolutely safe in erecting an in-ground swimming pool along said line. The plaintiff claimed that, in fact, the defendant’s representation of the location of the north divisional line was incorrect and was approximately twenty to forty feet north of the correct divisional line that divided the plaintiffs and Fantarella’s properties.

The plaintiff asserted that in reliance on the accuracy of the survey, she installed a septic system and an in-ground swimming pool. She claimed that as a result of the defendant’s negligence in ascertaining the proper north divisional line, the septic system and the swimming pool were erected, in part, on land that belonged to Fantarella. The plaintiff asserted that Fantarella sued her, claiming damages and possession of the strip of land where the plaintiffs pool had been installed. The plaintiff further asserted that she settled Fantarella’s lawsuit, and was required to remove the pool as a condi[376]*376tion of the settlement. The plaintiff claimed that she suffered losses, such as the cost of building and removing the swimming pool, the counsel fees required to defend the lawsuit brought by Fantarella, the cost of maps, surveys, expert testimony and other expenses in preparing and defending the Fantarella lawsuit, and the cost of prosecuting this action. She also asserted that the property and its improvements have suffered a permanent loss in value.

In his answer, the defendant denied all of the essential allegations of the plaintiffs replacement amended complaint other than the allegation that the defendant was a professional engineer and land surveyor who held himself out to the public as an expert capable of determining the boundaries of property and the divisional lines thereof. The defendant also filed three special defenses. In his first special defense, the defendant asserted that any damages suffered by the plaintiff were caused by acts or omissions of parties over whom the defendant had no control. In his second special defense, the defendant claimed that the plaintiff was contributor-ily negligent because she unreasonably relied on the class D survey prepared by the defendant for purposes other than those contemplated by the parties at the time the survey was prepared, although the plaintiff was repeatedly cautioned by the defendant as to the limited use of a class D survey. Finally, in his third special defense, the defendant asserted that the in-ground swimming pool, as installed, was in violation of local inland-wetland regulations and local setback regulations, was installed without the necessary permits, and would have had to be removed, regardless of the alleged encroachment. The plaintiff denied all of the allegations of the special defenses and the parties were at issue.

[377]*377After trial, the case was submitted to the jury, and the jury returned a verdict in favor of the plaintiff.1 After the clerk read the verdict aloud, the jury affirmed that the verdict as read constituted its unanimous verdict. Without accepting the verdict, the trial court excused the jury from the courtroom and asked it to retire to the jury deliberating room. The trial court and counsel then engaged in a colloquy concerning the verdict returned by the jury. Following the colloquy, the trial court summoned the jury back into the courtroom. The jury foreperson confirmed to the trial court that the jury intended to award the plaintiff the amount of damages indicated on the verdict form.2 The trial court asked the jury to return to the deliberating room, and the court engaged in additional colloquy with counsel. The court then submitted a handwritten interrogatory to the jury.3 After deliberating, the jury returned a note with an answer to the interrogatory.4

[378]*378The court and counsel engaged in a colloquy concerning the effect on the verdict of the answer to the interrogatory. The trial court then submitted to the jury new plaintiffs verdict forms and defendant’s verdict forms, and again instructed the jury on the law regarding comparative negligence and its impact on any verdict. The trial court also instructed the jury to decide the following question: “Do you intend the verdict of $16,961 that you originally returned to the court to represent 31% negligence on the part of the defendant Jay Black?” The trial court concluded by stating: “So, I will ask you to answer that question and to take these forms and to retire and reconsider.” Neither counsel took exception to the correctness of the trial court’s supplemental instruction on the issue of comparative negligence. The defendant excepted only to the court’s recharging on that issue at all, while the plaintiff excepted to the submission of the oral interrogatory.

The jury retired again to consider its verdict. The jury returned a plaintiffs verdict form showing a recovery for the plaintiff in the amount of $16,962. In this verdict, however, the jury concluded that the plaintiff was 69 percent negligent.5 The trial court engaged in discussion [379]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chicago Title Ins. Co. v. Accurate Title Searches, Inc.
164 A.3d 682 (Connecticut Appellate Court, 2017)
Tisdale v. Riverside Cemetery Ass'n
826 A.2d 232 (Connecticut Appellate Court, 2003)
State v. Pare
755 A.2d 180 (Supreme Court of Connecticut, 2000)
Emerick v. Kuhn
737 A.2d 456 (Connecticut Appellate Court, 1999)
Ciarlelli v. Romeo
699 A.2d 217 (Connecticut Appellate Court, 1997)
Cadle Co. of Connecticut, Inc. v. C.F.D. Development Corp.
689 A.2d 1166 (Connecticut Appellate Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
675 A.2d 937, 41 Conn. App. 373, 1996 Conn. App. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallinson-v-black-connappct-1996.