MEALEY'S PRODUCT LIABILITY & RISK
September 25, 2006, LexisNexis

Copyright 2006 LexisNexis, Division of Reed Elsevier Inc.
Mealey's Product Liability & Risk
6-2 Mealey's Prod. Liab. & Risk 26 (2006)


SECTION: Volume 6, Issue #2

HEADLINE: Connecticut High Court Upholds $2.19M Verdict In Defective Scaffolding, Personal Injury Case

HARTFORD - After finding that a trial court did not err in refusing to apportion liability to an intervening employer, the Connecticut Supreme Court on Sept. 12 upheld a $2.19 million jury award to two workers injured when allegedly defective roof brackets caused scaffolding to collapse (Neil Barry, et al. v. Quality Steel Products Inc., et al. and Bernard Cohade, et al. v. Quality Steel Products Inc., et al., No. SC 17453, Conn. Sup.; 2006 Conn. LEXIS 321).

This joint appeal arises from two consolidated product liability actions in which Neil Barry and Bernard Cohade seek damages for personal injuries. The plaintiffs maintain that scaffold planking they were standing on collapsed because of defective roof brackets.

At the time of the accident, the plaintiffs were employed by DeLuca Construction Co. A DeLuca employee purchased 10 roof brackets manufactured by Quality Steel Products Inc. and Qual-Craft Industries (collectively, Quality Steel). The brackets were purchased from Ring's End Inc.

The plaintiffs received workers' compensation from DeLuca. The plaintiffs sued Quality Steel and Ring's End under the Connecticut Product Liability Act (Connecticut General Statutes Section 52-572m). DeLuca's motion to intervene was granted. Ring's End is no longer a party to the action.

Trial
The case was tried and resulted in a defense verdict. On appeal, the Connecticut Supreme Court reversed and ordered a new trial on all issues except for the issue of DeLuca's superseding negligence.

The case was tried again before the Waterbury County Superior Court, and the jury awarded the plaintiffs $2,196,000 in damages.

Specifically, the jury awarded Barry $998,000 in economic damages and $200,000 in noneconomic damages and $100,000 for loss of consortium. The jury awarded Cohade $648,000 in economic damages and $250,000 in noneconomic damages.

After Quality Steel's motion to set aside the verdict was denied, it filed a second appeal to the state high court.

Judgment Affirmed
The high court first addressed Quality Steel's argument that the trial court improperly refused to instruct that it could apportion responsibility for the plaintiffs' injuries pursuant to the comparative responsibility provisions of Section 52-572o of the Connecticut General Statutes.

"As the basis for their claim that the jury should have been allowed to apportion some measure of liability to DeLuca, the defendants point to DeLuca's alleged negligent failure to provide fall protection for the plaintiffs while they worked on the roof. We disagree. We conclude, to the contrary, that the references to 'party' in [Section] 52-572o do not include an employer that has intervened in the action to seek reimbursement of workers' compensation benefits paid to the plaintiffs," the court said.

The court noted that DeLuca intervened solely pursuant to General Statute Section 31-293(a) to seek reimbursement for the workers' compensation payments that it was required to make.

"The statutory scheme set forth in [Section] 52-572o is inconsistent with applying apportionment to an intervening employer," the court said.

Discovery
The court turned to Quality Steel's argument that the trial court improperly ruled that absent agreement of counsel, it would permit no additional discovery or expert disclosures concerning any matter that could have been discovered or disclosed before the first trial. The court rejected this argument.

"The defendants have pointed to nothing that would lead us to conclude that the court abused its discretion in limiting the scope of discovery and expert disclosures to matters that could not have been discovered or disclosed prior to the first trial," the court said. "We are not persuaded by the defendants' claim that, because the second trial was de novo, the trial court was obligated, in managing discovery during the second trial, to make its decisions as though the first trial had not taken place."

Photographic Evidence

Quality Steel also argued that the trial court improperly excluded as inadmissible hearsay certain photographic evidence.

"We disagree with the defendants that this ground represents the basis upon which the trial court excluded the photographs. Instead, we conclude that the trial court acted within its discretion in excluding the photogenic evidence based on the defendants' failure to lay a proper foundation for the evidence," the court said.

Similarly, the court rejected Quality Steel's argument that the trial court improperly denied the jury's request for access during deliberations to a demonstrative exhibit it used during trial. The court reasoned that the jury's request was not akin to a request to review the scene of an accident.

Likewise, the court rejected Quality Steel's argument that the trial court abused its discretion in excluding evidence that the plaintiffs were not wearing personal fall protection while working on the roof.

Costs
Finally, the court rejected Quality Steel's claim that the trial court improperly awarded the plaintiffs costs for both trials.

"The plaintiffs were, ultimately, the prevailing party; the mere fact that the defendants prevailed on the first trial, without more, does not render the trial court's award of costs for both trials an abuse of discretion," the court concluded.

Quality Steel is represented by Phillip T. Newbury Jr. of Howd & Ludorf in Hartford. The plaintiffs are represented by Joel T. Faxon of Stratton Faxon in New Haven, Conn., and Andrew J. Maloney III of Kreindler & Kreindler in New York.