No. (AC 24286).Appellate Court of Connecticut.
Lavery, C. J., and DiPentima and McLachlan, Js.
Syllabus
The plaintiff administrator of the estate of R sought to recover damages for R’s wrongful death from the defendant city and the defendant police officer, M, who, after responding to a dispute, engaged in an altercation with R and shot R three times after R allegedly had approached M with a knife in his hand. The defendants filed special defenses of contributory negligence, recklessness, privileged use of force and governmental immunity. The plaintiff did not submit interrogatories to the jury, which returned a general verdict in favor of the defendants. On appeal to this court from the judgment of the trial court rendered in accordance with the jury’s verdict, the plaintiff claimed that the trial court improperly denied his request for a jury charge on the sudden emergency doctrine. Held that the general verdict rule precluded review of the plaintiff’s claim, which was relevant only to the alleged negligence of the defendants and not to the allegations of their special defenses; the plaintiff having failed to submit any interrogatories to the jury, this court could not determine whether the jury found for the defendants because the plaintiff failed to prove the allegations of the complaint or because the defendants prevailed on their special defenses, and the plaintiffs claim on appeal did not undermine the presumed finding of comparative negligence.
Argued June 3, 2004.
Officially released September 21, 2004.
Procedural History
Action to recover damages for the wrongful death of the plaintiffs decedent as a result of the defendants’ alleged negligence, brought to the Superior Court in the judicial district of Fairfield, where the action was withdrawn as against the defendant Dale Demirjian et al.; thereafter, the matter was tried to the jury before Stevens, J.;
verdict and judgment for the named defendant et al., from which the plaintiff appealed to this court. Affirmed.
Norman A. Pattis, for the appellant (plaintiff).
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Elliot B. Spector, with whom, on the brief, wer Nicole D. Dorman and Marcia J. Gleeson, for the appellees (named defendant et al.).
Opinion
McLACHLAN, J.
In this wrongful death action, the plaintiff, John Morales, administrator of the estate of Robert Morales, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, Sean Moore and the city of Milford.[1] The sole question presented is whether the court improperly denied the plaintiffs request for a jury charge on the sudden emergency doctrine.
On February 22, 1996, Officer Sean Moore of the Milford police department responded to a dispute at 50 Locust Street. Upon arrival, Moore was confronted outside by Robert Morales, and an altercation quickly ensued. When Morales approached Moore with a knife in hand, Moore fired three gunshots. Morales died shortly thereafter.[2]
The plaintiff subsequently commenced the present wrongful death litigation. A jury trial began on April 30, 2003. At the close of evidence, the plaintiff did not submit any jury interrogatories. The plaintiff requested a jury charge predicated on the sudden emergency doctrine, which the court denied. The court instructed the jury on the plaintiff’s negligence, assault and battery claims, as well as the defendants’ special defenses of
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contributory negligence, recklessness, privileged use of force and governmental immunity. On May 9, 2003, the jury returned a general verdict in favor of the defendants, and the court rendered judgment accordingly. This appeal followed. Following oral argument on the matter, this court ordered the parties to submit supplemental briefs on whether the general verdict rule applies to this appeal.
We consider first the question of whether the general verdict rule is applicable. “[T]he general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated.” (Internal quotation marks omitted.)Dowling v. Finley Associates, Inc., 248 Conn. 364, 372, 727 A.2d 1245 (1999). “Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” (Internal quotation marks omitted.) Id., 371. “A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).
In the present case, the defendants’ answer denied the plaintiffs allegation of negligence as set forth in the complaint. The defendants also alleged that Robert Morales’ negligence was the proximate cause of his death.[3] “The defendants’ denial of negligence and their
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allegation of contributory negligence constitute two separate and distinct defenses, either one of which could support the jury’s general verdict.” Stone v Bastarache, 188 Conn. 201, 205, 449 A.2d 142 (1982).
We repeatedly have held that when a plaintiffs claim “alleges a defect in the instruction that relates only to the theory of negligence, leaving the contributory negligence route untainted,” the general verdict rule applies Sandow v. Eckstein, 67 Conn. App. 243, 248, 786 A.2d 1223 (2001), cert. denied, 259 Conn. 919, 791 A.2d 566 (2002); see also Stone v. Bastarache, supra, 188 Conn. 205; Harris v. United Technologies Corp., 76 Conn. App. 421, 424-25, 819 A.2d 895, cert. denied, 264 Conn. 910, 826 A.2d 180 (2003) D’Alesandro v. Clare, 74 Conn. App. 177, 181, 812 A.2d 76 (2002). The plaintiff did not submit interrogatories to the jury, which returned a general verdict in favor of the defendants. Without interrogatories, we are not able to determine whether the jury found for the defendants because the plaintiff failed to prove the allegations of the complaint or because the defendants prevailed on their special defense. See D’Alesandro
v. Clare, supra, 181. We therefore must presume that the jury found every issue in favor of the defendants. Se Bowling v. Finley Associates, Inc., supra, 248 Conn. 371.
Application of the general verdict rule precludes our review of the plaintiffs claim concerning the request for a jury charge on the sudden emergency doctrine. As the plaintiffs claim relates only to the jury’s finding that the defendants were not negligent, that claim does not undermine the presumed finding of comparative negligence.
The judgment is affirmed.
In this opinion the other judges concurred.
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