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ALEX MAZIER ET AL. v. SIGNATURE POOLS, INC.

(AC 36283)

Gruendel, Lavine and Bishop, Js.

Argued February 5—officially released August 4, 2015

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Povodator, J.)

Stephan E. Seeger, with whom, on the brief, was Igor

G. Kuperman, for the appellant (defendant).

Michael J. Barnaby, for the appellees (plaintiffs).
Opinion

BISHOP, J. In this breach of contract and negligence

action involving a dispute between the plaintiff homeowners and the defendant swimming pool contractor,

the defendant, Signature Pools, Inc., appeals from the

judgment rendered upon a jury verdict in favor of the

plaintiffs, Alex Mazier and Giselle Mazier, for

$62,142.86.1 On appeal, the defendant claims that the

trial court, Povodator, J., incorrectly (1) denied certain

of the defendant’s requests to charge; (2) denied a

motion in limine regarding the law of the case; (3)

permitted parol evidence where the language of the

contract was clear and unambiguous; (4) denied the

defendant’s motion for a directed verdict; (5) denied

the defendant’s request to charge on professional negligence; and (6) denied the defendant’s motion for a mistrial. We affirm the judgment.

At trial, the jury reasonably could have found the

following facts. On March 22, 2007, the parties entered

into a contract for the defendant to construct an inground swimming pool at the plaintiffs’ residence in

Wilton (town). Although the contract contained multiple clauses, the following provisions are particularly

germane to the parties’ ultimate dispute and to our

resolution of this appeal:

‘‘APPLICATION FOR PERMIT: If a permit authorization is part of this Agreement, [the defendant] shall

attempt to obtain the building permit for you for the

construction of the pool. If a building permit cannot be

obtained by [the defendant], you shall attempt to obtain

the permit at your expense. If the permit cannot be

obtained, this Agreement will be canceled and any

deposit refunded less any costs incurred by [the defendant]. You shall be responsible for obtaining any zoning

variances, wetland approvals, coastal area management

approvals, changes, plot plans, test borings, percolation

tests, certificates of occupancy or special items

required for [the defendant’s] performance of the work.

You shall pay all costs and fees in connection with

obtaining/doing any of them. You shall be responsible

for all required variances, surveys, and associated permits and fees. . . .

‘‘POOL LOCATION: You represent that you have title

to the property that the pool is to be located on. You

also represent that the access way and pool location

is within your property lines and clear of setbacks,

wetlands restrictions, underground installation and

overhead power lines and that the equipment and pool

location complies with all applicable zoning laws.

‘‘You also represent that the pool location is on original ground and that it will not interfere with support of

existing or proposed structures. You also acknowledge

that you directed the location of the pool and other

improvements and you shall not hold [the defendant]
liable for any alleged incorrect location of the pool.

You will indemnify, hold harmless and defend [the

defendant] from any claim, loss or expense (including

reasonable attorneys’ fees) arising by reason of trespass

and/or damage by [the defendant] resulting from your

designation of pool location or access routes or by

reason of any work by you or others.’’

Before entering into the contract with the defendant,

the plaintiffs had purchased their home from Carmine

Tomas, who had constructed it on speculation. After

purchasing the property, and upon deciding to enhance

it with a pool, the plaintiffs sought the advice of Tomas

and his spouse, Tracy Castelli. The plaintiffs retained

Castelli to assist them in the selection of the pool contractor, in the process of determining the placement

and installation of the pool, and for landscaping the

property. Pursuant to her role as the plaintiffs’ advisor

and agent, Castelli prepared a tissue sketch to show

the pool’s general dimensions and location.2

The jury heard evidence, as well, that Tomas, acting

on behalf of the plaintiffs, submitted an application

to the town for approvals, including zoning, for the

construction of the pool and its location. With the application, Tomas submitted a plot plan that had been developed by a land surveyor at the behest of the plaintiffs.

This plan showed the pool’s proposed location, including its distance from adjacent property lines. The town

approved the plaintiffs’ plans and application on March

29, 2007. The plot plan submitted on behalf of the plaintiffs, together with their application, became part of the

town’s building permit file related to the pool. Once

the approvals had been obtained, the defendant, on

April 11, 2007, filed an application for a building permit

with the town, making reference in the application to

the town’s prior zoning approval for the pool construction. Castelli, on behalf of the plaintiffs, provided the

defendant with a copy of the plot plan filed with the

town.3

Thereafter, the defendant constructed the pool in a

location consistent with the sketch it asserted Castelli

had provided to the defendant and in accord with the

location of the stakes the defendant had utilized to

mark the pool’s intended location.

Unbeknownst to the parties,the pool was not situated

in accord with the plot plan but, instead, it was located

closer to an adjacent property line than required by the

setback provisions of the town’s zoning regulations.

During the spring of 2008, the town informed the plaintiffs that the pool had been situated in a location on

the property that resulted in a violation of the town’s

zoning regulations regarding the required minimum setbacks from an adjacent property line. Unable to obtain

a variance and subject to a subsequent cease and desist

order from the town, the plaintiffs, on January 6, 2011,

entered into a stipulation with the town, agreeing that
the pool was in an improper location, agreeing to pay

the town’s legal fees, and agreeing to relocate the pool.

In December, 2011,the plaintiffs commenced this action

which resulted, following a verdict for the plaintiffs, in

an award of $62,142.86 for the plaintiffs against the

defendant. This appeal followed.

I

The defendant claims that the court incorrectly

denied its request to charge on the ‘‘exculpatory provision’’ in the contract. The defendant claims, as well,

that the court incorrectly instructed the jury that the

provision should be ignored and that the plaintiffs’

acknowledgements regarding their responsibility for

the location of the pool were ‘‘ ‘ambiguous’ . . . .’’ The

defendant bases this argument on its assertion that the

contract between the parties contained a clear, precise

and unambiguous exculpatory provision in favor of the

defendant, and on the ground that the contract contained a provision through which the plaintiffs acknowledged that they bore the responsibility for the location

of the pool and that they did in fact direct its placement.

Indeed, the contract between the parties contained

an ‘‘exculpatory provision’’ that included both an

acknowledgement by the plaintiffs that they directed

the location of the pool, and language purporting to

indemnify and hold harmless the defendant from any

claims relating to the pool’s siting. As noted, the first

sentence, the acknowledgement of responsibility,

reads: ‘‘You also acknowledge that you directed the

location of the pool and other improvements and you

shall not hold [the defendant] liable for any alleged

incorrect location of the pool.’’ The second sentence,

containing the indemnification and hold harmless provision, reads: ‘‘You will indemnify, hold harmless and

defend [the defendant] from any claim, loss or expense

(including reasonable attorneys’ fees) arising by reason

of trespass and/or damage by [the defendant] resulting

from your designation of pool location or access routes

or by reason of any work by you or others.’’

In regard to the ‘‘exculpatory provision’’ as a whole,

the defendant submitted the following request to

charge: ‘‘You’ve heard evidence regarding contract

between the [p]laintiff and the [d]efendant in this case.

If you find that the contract in this case expressly and

unambiguously purports to release the [defendant]from

prospective liability for the incorrect location of the

pool and that the terms of the contract are unambiguous, understandable, clear and coherent and that an

ordinary person ofreasonable intelligence would understand that, by signing the agreement, he or she was

releasing the [defendant] from liability for the incorrect

location of the pool, then you must find that the [d]efendant is not liable to the [p]laintiffs for the losses and

damages arising from the incorrect location of the

pool.’’
The court did not give the defendant’s requested

charge. Instead, the court gave separate and distinct

instructions on each of the two sentences contained in

this part of the contract. On appeal, the defendant

argues that both of these instructions were in error.

We begin by setting forth the legal principles and

standard of review that guide our analysis. ‘‘Our standard of review regarding properly preserved claims of

improper jury instructions is well settled. In reviewing

claims of instructional [impropriety], we seek to determine whether it was . . . reasonably possible that the

jury was misled by the trial court’s instructions . . . .

[T]he charge to the jury is not to be critically dissected

for the purpose of discovering possible inaccuracies of

statement, but it is to be considered rather as to its

probable effect upon the jury in guiding [it] to a correct

verdict in the case. . . . The charge is to be read as a

whole and individual instructions are not to be judged

in artificial isolation from the overall charge. . . . The

test to be applied . . . is whether the charge, considered as a whole, presents the case to the jury so that

no injustice will result. . . . As long as [the instructions] are correct in law, adapted to the issues and

sufficient for the guidance of the jury . . . we will not

view the instructions as improper. . . . Although [a]

request to charge which is relevant to the issues of [a]

case and which is an accurate statement of the law

must be given . . . [a] refusal to charge in the exact

words of a request . . . will not constitute error if the

requested charge is given in substance. . . . Thus,

when the substance of the requested instructions is

fairly and substantially included in the trial court’s jury

charge, the trial court may properly refuse to give such

instructions.’’ (Citation omitted; internal quotation

marks omitted.) State v. McCarthy, 105 Conn. App. 596,

617–18, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944

A.2d 983 (2008). With this standard in mind, we review

the court’s instructions on the two sentences separately.

A

As to the first sentence, the court stated: ‘‘The contract also contains the following language. ‘You also

acknowledge that you directed the location of the pool

and other improvements and shall not hold [the defendant] liable for any alleged incorrect location of the

pool.’

‘‘In the context of this case I instruct you that the

language is ambiguous. The language could refer to

errors in location caused by misdirection by the property owner, plaintiffs. It could refer to errors in location

caused by the contractor. It could refer to errors in

location for which neither the property owner nor the

contractor is at fault. And it could refer to errors in

location for which both the property owner and the
contractor [are] at fault.

‘‘Resolution of this ambiguity is entrusted to you, the

goal being to determine and enforce the likely intent of

the parties. In trying to resolve this ambiguity, however,

there is a rule which you may wish to take into account.

If you are unable to determine the intent of the parties

from the language of the surrounding circumstances,

you may construe that language against [the] defendant

. . . the party who drafted the contract.

‘‘This is because the party drafting the language is

the one who had the best opportunity to make clear

the intended meaning of the provision. However, you

should not construe the contract against [the] defendant, the party who drafted the contract, if it leads to

a result that was not intended by the parties, or if it

leads you to a result that is not a reasonable meaning

of the contract.’’

On the basis of our review of the record, we believe

the court’s instruction on the first sentence of this part

was correct on the law and appropriate to the circumstances. At the outset, we note that our jurisprudence

is clear that whether language of a contract is clear

and unambiguous presents a question of law. State v.

Dzwonkowski, 151 Conn. App. 81, 93, 94 A.3d 657, cert.

denied, 314 Conn. 906, 100 A.3d 401 (2014). Thus, it

was proper for the court to make the determination as

to whether the contract was ambiguous. And, because

that determination entails the resolution of a legal question, our review of the court’s determination is plenary.

See Tobet v. Tobet, 119 Conn. App. 63, 68, 986 A.2d 329

(2010). ‘‘Contract language is unambiguous when it has

a definite and precise meaning . . . concerning which

there is no reasonable basis for a difference of opinion

. . . . In contrast, an agreement is ambiguous when its

language is reasonably susceptible of more than one

interpretation.’’ (Internal quotation marks omitted.)

Giordano v. Giordano, 127 Conn. App. 498, 503, 14 A.3d

1058 (2011).

Here, the record amply supports the court’s determination that the sentence in question is subject to more

than one interpretation. At trial, the plaintiffs did not

deny that they were responsible for situating the pool.

Indeed, they offered testimony, which the jury was entitled to credit, that they commissioned the plot plan,

submitted it to the town, and gave the plot plan to the

defendant to set the pool’s location. The defendant, on

the other hand, claimed that the plaintiffs gave it a tissue

sketch from which the defendant marked by stakes the

pool’s dimensions and location. The defendant offered

testimony, as well, that Castelli, on behalf of the plaintiffs, approved the defendant’s outline of the pool’s

intended location. The interpretation of this sentence

regarding the plaintiffs’ role in directing the pool’s location depended, in large measure, on the jury’s assessment of this testimony. In its instructions to the jury,
the court fully and properly explained that the language

is subject to multiple interpretations. We therefore conclude that there was no mistake in this instruction.

B

As to the second sentence, containing the hold harmless and indemnification provision, the court instructed

the jury to disregard it. The court stated: ‘‘The language

is, you will and indemnify and hold harmless and defend

[the defendant] from any claim, loss or expense, including reasonable attorney’s fees, arising by reason of trespass and/or damage by [the defendant] resulting from

your designation of pool location or access routes or

by reason of any work by you or others.

‘‘I instruct you that you are to disregard the language

that I have just quoted. It is inapplicable to this case,

and you must not consider that language in applying

the contract to the facts of this case.’’

Later, after the jury had begun its deliberations, the

jury had a question regarding the ‘‘hold harmless’’ language. When the jury was brought back into the courtroom, the court stated: ‘‘All right, the question is,

clarification regarding what part of [the] contract were

we to ignore. And then it says in parenthesis—in quotation marks—notwithstanding clause.

‘‘What I instructed you is on page 6, I believe, of

the contract; in a section captioned pool location the

following language appears.’’ The court then read the

contract’s indemnification and hold harmless language

to the jury and concluded: ‘‘That is the language you

are to ignore. It has no applicability to this case. There

is the risk that you might have thought it does, and

therefore that is why I specifically said it doesn’t have

any bearing. You are to ignore that language.’’

On appeal, the defendant now claims that this instruction was legally incorrect.4 The plaintiffs, in response,

and on appeal for the first time, argue that the exculpatory language in the contract violates public policy as

enunciated in General Statutes § 52-572k.5 The defendant, in turn, argues that the provisions of § 52-572k

are not applicable because the plaintiffs, in this

instance, make no claim for bodily injury or damage

to property.

Both arguments are wide of the mark regarding the

defendant’s instructional claim.6 From a cursory review

of the hold harmless and indemnification language in

the context of the entire agreement, it is clear that the

hold harmless and indemnification language does not

bear on a dispute between these parties under the contract. Rather, the language in question contemplates the

potential for a complaint made against the defendant by

a third party for the defendant’s siting of the pool as

directed by the plaintiffs, in which case, the provision

calls for the homeowner to step into the shoes of the

defendant to defend and hold the defendant harmless
against such a claim. In discussing the nature of an

indemnification agreement generally, our Supreme

Court has opined: ‘‘In Connecticut, there are cases that

are instructive when determining when an action to

enforce an indemnity contract accrues. The logic and

rationale underlying our indemnity case law are based

on the premise that an action for indemnification is one

in which one party seeks reimbursement from another

party for losses incurred in connection with the first

party’s liability to a third party.’’ Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 148, 810 A.2d

259 (2002).7

In the context of this agreement, the record

supports the reasonableness of the court’s view that

the indemnification and hold harmless language in this

paragraph of the agreement did not relate to any potential dispute between the plaintiffs and the defendant.

Accordingly, its instruction to the jury to disregard this

provision was legally correct.

II

Next, the defendant claims that the court incorrectly

declined to follow the law of the case established earlier

in conjunction with a hearing on the plaintiffs’ application for a prejudgmentremedy. The following additional

facts are relevant to our consideration of this issue. By

pleading dated September 29, 2010, the plaintiffs sought

a prejudgment remedy against the defendant in the

amount of $385,875. After a hearing, the court, Tobin,

J., denied the application. In doing so, the court commented, in its written memorandum of decision, that

the plaintiffs had failed to adduce sufficient evidence

to establish probable cause that they would succeed in

either their negligence or contract claims against the

defendant.8 As to the negligence claim, the court

observed that the parties had a factual dispute as to

whether the plaintiffs’ representative had provided a

copy of the plot plan to the defendant prior to the

construction of the pool, with the plaintiffs claiming

that it had been given to the defendant and the defendant denying its receipt. On this score, the court found

the defendant’s testimony to be more credible.

As to the breach of contract claim, the court stated:

‘‘The agreement between the parties is not ambiguous.

The agreement clearly and unequivocally assigned

responsibility for the location of the pool to the plaintiffs.’’ The court said, as well, concerning the contract

claim: ‘‘A second, more plausible, contract theory is

that the defendant breached the agreement by failing

to build the pool in the location designated by the plaintiffs. There was, however, no evidence that the plaintiffs

themselves gave any directions to the defendant as to

the location of the pool other than to state it should

be built behind their residence. In her testimony, Ms.

Tomas denied ever designating or approving the location of the pool personally. She testified that she had

given [Bruno] Iacono a copy of the plot plan that Tom
Quinn had prepared for the plaintiffs at her request

. . . . That plot plan depicts the location of the pool

as more than fifty feet from the plaintiffs’ property line.

In the absence of any other evidence showing that the

plaintiffs or their agent(s) designated a pool location,

the plaintiffs’ claim of breach of contract stands or falls

on the question of whether a copy of exhibit 3 was

given to the defendant prior to the construction of the

pool.’’ (Citation omitted; footnote omitted.) On this

point, the record is clear that Judge Tobin was unpersuaded by the plaintiffs’ evidence. The court stated: ‘‘In

summary, the court found Mr. Iacono to be the more

credible witness with respect to the events which led

to the placement of the pool.9 The court finds that the

plaintiffs have failed to establish probable cause to sustain the validity of any potential breach of contract

claims against the defendant.’’ (Footnote added.)

As to the negligence count, the court noted: ‘‘[T]he

plaintiffs claim that the defendant performed its work

under the contract in a manner that was not ‘workmanlike’ or ‘in accordance with industry standards.’ At the

hearing, the plaintiffs produced no evidence of industry

standards or from which the court could find probable

cause that the defendant performed its responsibilities

under the contract in an ‘unworkmanlike manner.’ The

plaintiffs next argue that the evidence shows that the

defendant was aware of the intended location of the

pool and yet negligently constructed it within a required

backyard setback. This assertion would require the

court to accept the testimony of Ms. Tomas and disregard that of Iacono.As noted previously,the courtfound

Iacono’s testimony to be more credible. Accordingly,

the court cannot find that the plaintiffs have established

probable cause to sustain the validity of their negligence

claims against the defendant.’’

From this language, the defendant asserts that Judge

Tobin established, as the law of the case, that the language of the contract was clear and unambiguous, and

that, in order to prevail on their negligence claim, the

plaintiffs were required to adduce expert testimony

regarding the standard of care for pool builders. To

advance its law of the case claim, the defendant, on

October 28, 2013, filed a pretrial motion in limine in

which the defendant sought an order precluding the

plaintiffs from introducing trial evidence that would,

inter alia: ‘‘(4) show or tend to show that the written

agreement between the parties is ‘ambiguous’; (5) show

or tend to show that [d]efendant was obligated or

required under the written agreement to ensure that

the pool was built in a location which conformed with

the requirements of local land use regulations; (6) contradict that under the written agreement [d]efendant’s

responsibilities with respect to location of the pool

were limited to locating the pool in accordance with

[p]laintiffs’ direction; (7) show or tend to show that

the parties modified or agreed to modify their written
agreement . . . .’’ The defendant claims that, in denying this motion in limine, the court, Povodator, J., violated the law of the case doctrine.

‘‘As a preliminary matter, we set forth the applicable

standard of review with respect to evidentiary claims.

The trial court’s ruling on the admissibility of evidence

is entitled to great deference. . . . [T]he trial court has

broad discretion in ruling on the admissibility . . . of

evidence . . . [and its] ruling on evidentiary matters

will be overturned only upon a showing of a clear abuse

of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial

court’s ruling, and only upset it for a manifest abuse

of discretion. . . . Moreover, evidentiary rulings will

be overturned on appeal only where there was an abuse

of discretion and a showing by the defendant of substantial prejudice or injustice.’’ (Internal quotation marks

omitted.) Sutcliffe v. FleetBoston Financial Corp., 108

Conn. App. 799, 804–805, 950 A.2d 544 (2008).

‘‘The law of the case doctrine provides that [w]here

a matter has previously been ruled upon interlocutorily,

the court in a subsequent proceeding in the case may

treat that decision as the law of the case, if it is of the

opinion that the issue was correctly decided, in the

absence of some new or overriding circumstance. . . .

A judge is not bound to follow the decisions of another

judge made at an earlier stage of the proceedings, and

if the same point is again raised he has the same right

to reconsider the question as if he had himself made

the original decision. . . . [O]ne judge may, in a proper

case, vacate, modify, or depart from an interlocutory

order or ruling of another judge in the same case, upon

a question of law.’’(Citation omitted; emphasis omitted;

internal quotation marks omitted.) Henderson v.

Lagoudis, 148 Conn. App. 330, 338–39, 85 A.3d 53

(2014). ‘‘We consider whether a court correctly applied

the law of the case doctrine under an abuse of discretion

standard.’’ Perugini v. Giuliano, 148 Conn. App. 861,

879, 89 A.3d 358 (2014).

Adherence to the law of the case doctrine is not

mandatory. Rather, the doctrine, when invoked, is a

habit of practice impelled by prudence, comity and judicial economy. As our Supreme Court has stated: ‘‘The

law of the case is not written in stone but is a flexible

principle of many facets adaptable to the exigencies of

the different situations in which it may be invoked. . . .

In essence it expresses the practice of judges generally

to refuse to reopen what has been decided and is not

a limitation on their power.’’ (Citation omitted.) Breen

v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).

Accordingly, to the extent Judge Povodator may have

permitted evidence regarding the meaning of the subject contract language or may have adopted a different

view of the clarity of this provision of the contract, he

acted within his discretion and violated no binding tenet
of law.

III

The defendant next claims that the court incorrectly

permitted the plaintiffs to introduce parol evidence as

to the responsibility for placement of the pool where

the contract clearly and unambiguously allocated this

responsibility to the plaintiffs. Through a pretrial

motion in limine dated October 28, 2013, the defendant

sought an order precluding the plaintiffs from introducing any evidence or permitting any argument that would

contradict or vary the terms of the written contract

between the parties. Specifically, the motion refers to

the provision in the contract allocating the responsibility for the location of the pool and for obtaining zoning

permits to the plaintiffs. In response to this claim, the

plaintiffs assert that their evidence as to the plaintiffs’

and defendant’s activities regarding the location of the

pool was not offered to vary or contradict the terms of

the contract but, rather, to demonstrate the manner in

which the plaintiffs fulfilled their obligation under the

contract. We agree with the plaintiffs.

‘‘[T]he parol evidence rule is not an exclusionary rule

of evidence . . . but a rule of substantive contract law

. . . to which we afford plenary review.’’ (Internal quotation marks omitted.) Weiss v. Smulders, 313 Conn.

227, 248, 96 A.3d 1175 (2014). As noted by the defendant,

the parol evidence rule requires that ‘‘[w]hen two parties have made a contract and have expressed it in a

writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent

understandings and negotiations will not be admitted

for the purpose of varying or contradicting the writing.’’

(Internal quotation marks omitted.) Greene v. Scott, 3

Conn. App. 34, 36, 484 A.2d 474 (1984). Although we

agree that the defendant has properly characterized the

parol evidence rule, the record does not support the

defendant’s claim that testimony adduced by the plaintiffs in fact violated the rule. To the contrary, a fair

reading of the record reveals that the plaintiffs offered

testimony to demonstrate the manner in which they

fulfilled their obligations under the contract to determine the location of the pool. As noted, the plaintiffs

claimed that they had a plot plan prepared for the siting

of the pool, they submitted this plan for approval to

the town, and they gave a copy of the plot plan to the

defendant for use in locating the pool. At trial, the

defendant denied that it had been given the plot plan

and claimed, rather, that it had instead been given a

sketch provided by the plaintiffs’ agent, Castelli, and

that this sketch was used to stake out the location of

the pool, which was thereafter approved by Castelli.

Because the plaintiffs offered the testimony at issue in

orderto demonstrate the mannerin which they directed

the location of the pool, it cannot fairly be claimed that
this testimony was intended to vary or contradict the

terms of the contract that required them to direct the

pool’s location.

IV

Next, the defendant claims that the court incorrectly

denied its motion for a directed verdict where the plaintiffs failed to adduce any evidence regarding the standard of care for a pool builder and where the contract

contained an exculpatory provision releasing the defendant from any liability for the placement of the pool.

Put differently, this claim involves two issues: (1)

whether the plaintiffs should have been required to

adduce testimony regarding the standard of care for

pool builders; and (2) whether the defendant was entitled to a directed verdict on the basis of an exculpatory

provision in the contract. We deal with each claim in

turn.

We begin by setting forth the appropriate legal framework. ‘‘The standards of review for the denial of a

motion for a directed verdict and denial of a motion to

set aside a verdict are the same. . . . Ordinarily, [t]he

proper appellate standard of review when considering

the action of a trial court granting or denying a motion

to set aside a verdict . . . [is] the abuse of discretion

standard. . . . [O]ur review of a trial court’s refusal to

direct a verdict . . . takes place within carefully

defined parameters. We must consider the evidence,

including reasonable inferences which may be drawn

therefrom, in the light most favorable to the parties who

were successful at trial . . . giving particular weight to

the concurrence of the judgments of the judge and the

jury, who saw the witnesses and heard the testimony

. . . . Directed verdicts are not favored. . . . As a general rule, the decision to set aside a verdict entails the

exercise of a broad legal discretion . . . that, in the

absence of clear abuse, we shall not disturb. . . . We

note further that, to the extent that the claims raise

questions of law, ourreview is plenary.’’(Citations omitted; internal quotation marks omitted.) Tomick v.

United Parcel Service, Inc., 157 Conn. App. 312, 324–25,

A.3d (2015); see also Bridgeport Harbour Place

I, LLC v. Ganim, 131 Conn. App. 99, 153, 30 A.3d 703

(applying plenary review where questions of law were

raised by defendant, claiming that court improperly

denied motion for directed verdict and to set aside

verdict), cert. granted on other grounds, 303 Conn. 904,

905, 31 A.3d 1179, 1180 (2011)(appeals withdrawn January 26 and 27, 2012). Furthermore, ‘‘[i]f contract language is definitive of the parties’ intent, then the

interpretation of the language becomes a question of

law for the court. . . . Our review, in such a case, is

plenary.’’ (Internal quotation marks omitted.) Watkins

v. Watkins, 152 Conn. App. 99, 105, 96 A.3d 1264 (2014).

A
We first review the defendant’s claim that the court

should have directed a verdict in favor of the defendant

because the plaintiffs failed to adduce any evidence of

the standard of care applicable to pool builders in order

to establish the existence of the defendant’s duty to

the plaintiffs.

It is an elementary precept of tort law that in order

to prove a case founded on negligence, a plaintiff must

demonstrate that the defendant had a duty of care to

the plaintiff and that the defendant breached that duty,

causing injury to the plaintiff. See Utica Mutual Ins.

Co. v. Precision Mechanical Services, Inc., 122 Conn.

App. 448, 454, 998 A.2d 1228, cert. denied, 298 Conn.

926, 5 A.3d 487 (2010). The scope of a party’s duty is

generally referred to as the standard of care. Id. When

a case involves resolution of an issue of ordinary negligence, normally, expert testimony is not required to

establish the applicable standard of care. Rather, the

jury is to apply the standard of the reasonably prudent

person in the same circumstances. See Cammarota v.

Guerrera, 148 Conn. App. 743, 750, 87 A.3d 1134, cert.

denied, 311 Conn. 944, 90 A.3d 975 (2014). On the other

hand, expert testimony to inform a jury of the standard

of care is required when the question involved goes

beyond the field of knowledge and experience of ordinary fact finders. See Ciarlelli v. Romeo, 46 Conn. App.

277, 283, 699 A.2d 217, cert. denied, 243 Conn. 929, 701

A.2d 657 (1997), and cases cited therein. ‘‘The court’s

determination of whether expert testimony was needed

to support the plaintiff’s claim of negligence against the

defendant was a legal determination, and, thus, our

review is plenary.’’ (Internal quotation marks omitted.)

Brye v. State, 147 Conn. App. 173, 181, 81 A.3d 1198

(2013).

In the case at hand, the standard of care involved

the defendant’s placement of the pool and whether the

defendant was negligent in situating the pool where it

was constructed. As noted in this regard, the plaintiffs

adduced two trains of evidence, each bearing on the

question. The plaintiffs offered testimony, which the

jury was entitled to credit, that the defendant was given

a copy of the plot plan filed with the town and which

showed the proper location for the pool. The plaintiffs

also adduced testimony that the plot plan had been

filed with the town and that all applicants, professionals

and homeowners alike, were required to act in conformity with the terms of plot plans on file with the town

in the performance of authorized work. In this regard,

it is noteworthy that, in submitting an application for a

building permit, the application signed by the defendant

contained the following provision: ‘‘The undersigned

owner or authorized agent hereby . . . (3) warrants

that this building shall be located the proper distance

from all street lines, side yard lines and required distances from all other zones and is located in a zone in
which this building [and] its use is allowed [and] (4)

warrants that this application and all maps and location

surveys submitted in connection herewith fully and

accurately describe the premises and structures

thereon and any conditions to approval of the same by

the Wilton Planning and Zoning Commission . . . .’’

At trial, the plaintiffs adduced evidence that the plot

plan they had prepared and that had been approved by

the Wilton Planning and Zoning Commission was made

part of the plaintiffs’ application file with the town. On

this point, the plaintiffs alleged that the defendant’s

failure to follow the approved plot plan forthe construction of the pool constituted a negligent failure to follow

the rules and protocols generally binding on all applicants, lay people or contractors. Given the nature of

those claims, we cannot find that the court mistakenly

failed to require the plaintiffs to establish, through

expert testimony, the standard of care for an activity

required of all applicants.10 In sum, the jury was able to

determine, using common sense and ordinary wisdom,

whether the defendant was negligent in not situating

the pool as indicated in the plot plan given to it by the

plaintiffs’ agent or in not following the dictates of the

plan it knew or should have known was an integral part

of the town’s approval. This assessment did not require

specialized knowledge beyond the understanding of

average jurors. On this evidence, the jury was competent to determine whether the defendant owed a duty

of care to situate the pool as specified in the plot plan

approved by the town and in its possession.11

B

The second reason the defendant claims the court

should have granted a directed verdictrelates to a provision in the parties’ contract, which, the defendant

claims, exonerates it from any liability for the wrongful

placement of the pool. As noted, the parties’ contract

included a provision purporting to absolve the defendant from any liability for any alleged incorrect location

of the pool: ‘‘You also acknowledge that you directed

the location of the pool and other improvements and

you shall not hold [the defendant] liable for any alleged

incorrect location of the pool. You will indemnify, hold

harmless and defend [the defendant] from any claim,

loss or expense (including reasonable attorneys’ fees)

arising by reason of trespass and/or damage by [the

defendant]resulting from your designation of pool location or access routes or by reason of any work by you

or others.’’ The defendant claims that, on the basis of

this contract language, it was relieved of any liability

for the improper placement of the pool. As discussed

in part I A of this opinion, the trial court found ambiguity

in that portion of the ‘‘exculpatory’’ provision that purported to relieve the defendant of responsibility for the

improper location of the pool and, thus, its applicability

was properly within the scope of the jury’s fact-finding
responsibility. As to that portion of the clause containing the hold harmless and indemnification language,

the record reflects that the court found those provisions

inapplicable to the dispute between the parties. See

part I B of this opinion. For these reasons, we find no

fault with the court’s determinations in this regard. For

the same reasons, we believe the court correctly denied

the defendant’s motion for a directed verdict.12

V

The defendant next claims that the court incorrectly

failed to charge the jury on professional negligence

and, specifically, that the plaintiffs were required to

introduce evidence of the standard of care applicable

to pool builders. Having already assessed this issue in

response to the defendant’s claim regarding the court’s

failure to grant a directed verdict, we need not repeat

ourselves. In sum, we disagree with the defendant’s

claim that, in order to hold the defendant liable for

negligence, the plaintiffs should have been required to

adduce standard of care evidence on the ground that

pool building requires specialized knowledge and abilities. Given the specific claims of this case, which are

that the defendant failed to follow the plot plan given

to it by the plaintiffs’ agent and, in the alternative, that

the defendant failed to adhere to the terms of the plot

plan it knew or should have known was on file with

the town, we do not find any basis for the claim that

the jury was required to hear standard of care evidence

to determine whether the defendant performed negligently to the plaintiffs’ detriment. Because there was

no need for standard of care evidence, there was no

reason for a parallel charge.

VI

The defendant’s final claim is that the court should

have granted a mistrial ‘‘where the trial court twice

instructed the jury to correct their answers to the jury

interrogatories, and where the instructions specifically

told the jury what the correct answers to said interrogatories should be.’’ We disagree.

The following additional facts are relevant to our

consideration of this issue. During its final instructions

and while discussing the issue of damages, the court

instructed the jury that even though the plaintiffs had

made both contract and negligence claims, the plaintiffs

could recover only once for their losses. The court

stated: ‘‘Plaintiffs cannot recover more than once for

the same loss, even if they prevail on more than one

cause of action. I have provided you with a verdict

form and will go through it with you to make sure you

understand where it appears that there is a potential

for the plaintiff to recover more than once for the same

loss.’’ The court further stated: ‘‘I am submitting interrogatories, which will assist you in reaching a verdict

and calculating the amount of damages, if any, to be
awarded. . . .

‘‘The interrogatories direct you to enter final breach

of contract damages and negligence damages on the

plaintiffs’ verdict form . . . if you conclude that [the]

plaintiff is entitled to recover from [the] defendant

under one or both theories.

‘‘You will note that there is a table in the interrogatories form after the questions about breach of contract

and after the questions about negligence. Ultimately,

[the] plaintiffs will not be allowed to recover more than

once for any given injury. I am allowing you to enter

the information under one or both theories if you find

that [the] plaintiffs have proven either or both theories,

and if necessary, I will make appropriate adjustments

to avoid a double recovery as to any claimed element

of injury or damages.’’

The interrogatories submitted to the jury included

several questions regarding liability and damages.

Although the tenor of the answers clearly indicated a

verdict in favor of the plaintiffs, as did the jury’s use

of the plaintiffs’ verdict form, the jury’s answers

revealed, as well, certain inconsistencies. When the jury

first indicated that a verdict had been reached and the

verdict and interrogatory forms had been given to the

court, the courtresponded: ‘‘Allright, there is a problem

with these forms. What you apparently did is divide it

by two and put it in twice on the third form.’’13 To this

comment, the jury foreperson responded: ‘‘Yes.’’ The

court responded: ‘‘That is not the proper way to do it.

You need—if in fact your verdict is for that full amount,

put it in twice. I will make sure that there is no duplication.’’ The jury foreperson then said: ‘‘Okay. We can do

that, Your Honor.’’

The jury then returned to the jury room until, once

again, the court was notified that the jury had a verdict.

When the jury returned for the second time, and once

the verdict and interrogatory forms were handed to the

court, another discrepancy was discovered by the court,

this one involving one of the interrogatories in which

the jury had marked a box with an ‘‘X’’ indicating that

the language in the contract purporting to absolve the

defendant of liability for the placement of the pool

would relieve the contractor of legal responsibility. The

court stated: ‘‘There is a problem. Ladies and gentlemen,

I’m sorry, but there is a problem. There is an inconsistency between—in what you’ve done. It could be that

you misunderstood the form, but there is a problem in

that you indicated that errors in the location that were

the fault of the contractor would relieve the contractor

of responsibility. And, you are finding against the contractor. So, that is inconsistent.

‘‘I don’t think we have time to send you back today

to correct this. I can’t talk to you individually. You are

saying that it relieves—you’ve checked the box saying
that the contract excuses the contractor if he makes a

mistake. And yet you are finding against the contractor.

‘‘That is the problem. If you can handle this—I will

give it back to you one more time. If you think you can

do this in, like, two minutes, there is a correction that

needs to be made that you think you can make.

‘‘What you’ve done is, you’ve checked the box. Again,

do you understand what I am saying?’’ The record

reflects that the jury answered: ‘‘Yes,’’ and when a juror

then began to ask: ‘‘Would a corrected form—’’ the

court stated: ‘‘I can’t talk to you. All I am saying is, as

long as you understand what my problem is. If you

think you can correct it quickly, it can be corrected.

Otherwise, we are going to have to come back on Tuesday.’’ The jury thereafter returned to the jury room.

At that juncture, counsel for the defendant moved

for a mistrial, claiming that the court had polluted the

jury, that its comments to the jury had been unfair and

prejudicial. The court denied the motion, noting that

‘‘we don’t even have a verdict yet.’’ Shortly thereafter,

the jury returned with a verdict. On the interrogatory

form that previously the jury had marked an ‘‘X’’ indicating that the defendant would not be legally liable for

errors in location of the pool that were its fault, the

jury now had crossed out the ‘‘X’’ marking with the

consequence that the answer to this interrogatory

became consistent with the damage award, and with

its other findings regarding the defendant’s negligence

and breach of contract. The court thereafter accepted

the jury’s verdict.

On appeal, our review of a court’s denial of a motion

for a mistrial focuses on whether the court abused its

discretion. As this court has stated: ‘‘The standard for

review of an action upon a motion for a mistrial is well

established. While the remedy of a mistrial is permitted

under the rules of practice, it is not favored. [A] mistrial

should be granted only as a result of some occurrence

upon the trial of such a character that it is apparent to

the court that because of it a party cannot have a fair

trial . . . and the whole proceedings are vitiated. . . .

On appeal, we hesitate to disturb a decision not to

declare a mistrial. The trial judge is the arbiter of the

many circumstances which may arise during the trial

in which his function is to assure a fair and just outcome.

. . . In [our] review of the denial of a motion for mistrial, [we recognize] the broad discretion that is vested

in the trial court to decide whether an occurrence at

trial has so prejudiced a party that he or she can no

longer receive a fair trial. The decision of the trial court

is therefore reversible on appeal only if there has been

an abuse of discretion. . . . In general, abuse of discretion exists when a court could have chosen different

alternatives but has decided the matter so arbitrarily

as to vitiate logic, or has decided it based on improper

or irrelevant factors. . . . Therefore, [i]n those cases
in which an abuse of discretion is manifest or where

injustice appears to have been done, reversal is

required.’’ (Internal quotation marks omitted.) State v.

Holloway, 116 Conn. App. 818, 829–30, 977 A.2d 750,

cert. denied, 294 Conn. 902, 982 A.2d 646 (2009).

In the case at hand, we find no abuse of discretion.

The court returned the jury to deliberations twice, each

time because the jury had patently made a mistake. In

the first instance, the jury had answered the interrogatories in a manner consistent with the court’s instructions

by twice setting forth its award of damages, broken

into component parts, as resulting from the defendant’s

breach of contract and also as flowing from the defendant’s negligence. In instructing the jury, the court had

counseled the jury that in the event of a plaintiff’s verdict, it should not be concerned with duplication of

damages, as the court promised it would ensure that

there was not a double award. Thus, the jury’s completion of the interrogatories was consistent with the

court’s instructions. As noted by the court, however,

the jury incorrectly filled out the plaintiffs’ verdict form

by dividing the total damages in half, attributing an

equal part each to the defendant’s negligence and to

the defendant’s breach of contract. In sending the jury

back, the court merely pointed out this inconsistency.

The court’s response to the inconsistency between the

jury’s treatment of damages in the interrogatories and

its completion of the plaintiffs’ verdict form was appropriate.

Furthermore, as noted by this court in Szczycinska

v. Acampora, 125 Conn. App. 474, 483–84, 10 A.3d 531

(2010), ‘‘[p]ursuant to General Statutes § 52-223, [t]he

court may, ifitjudges the jury has mistaken the evidence

in the action and has brought in a verdict contrary to

the evidence, or has brought in a verdict contrary to

the direction of the court in a matter of law, return

them to a second consideration, and forthe same reason

may return them to a third consideration. The jury shall

not be returned for further consideration after a third

consideration. See also Practice Book § 16-17. This statute [formerly General Statutes § 1104] does not limit

the power of the trial court to return the jury to a second

or third consideration, to cases in which the verdict is,

in the opinion of the court, in favor of or against a

wrong party. A verdict in other respects correct may

be contrary to the evidence, or to the direction of the

court in a matter of law, because [it is] for too large or

too small a sum, and the provisions of this section are

applicable to such cases. . . .

‘‘While the remarks of the court to the jury in so

returning [it], eitherregarding the evidence orregarding

matters of law, are subject to review on appeal as a

part of the charge . . . the power given by the statute

to the court to so return the jury is largely a discretionary one, the reasonable exercise of which, in the
absence of erroneous instructions to the jury in

returning [it], will not be reviewed by this court, especially when it appears that the verdict finally accepted

is not, by reason of the change made, contrary to the law

or the evidence.’’ (Citation omitted; internal quotation

marks omitted.) In a similar vein, this court has said:

‘‘[T]he [trial] court plays an essential role in supervising

the jury and in ensuring that the verdict is reasonable

and lawful. . . . The control of the court over the verdict of the jury is limited but salutary.’’ (Citation omitted; internal quotation marks omitted.) Pickering v.

Rankin-Carle, 103 Conn. App. 11, 18, 926 A.2d 1065

(2007).

Here, the record reveals that the court reasonably

acted within its authority. When the jury first returned

with a verdict, the court observed that the jury had

found in favor of the plaintiffs but, in completing the

verdict form, had failed to follow the court’s instructions permitting the jury to award the totality of damages for the defendant’s breach of contract and for the

defendant’s negligence. The court’s response to the jury

was explanatory and in accord with the law. Similarly,

when the jury returned with a corrected plaintiffs’ verdict form, the court discovered, in reviewing the jury’s

answers to the interrogatories, that one of the answers

was legally inconsistent with a verdict for the plaintiffs

and inconsistent with all of the other answers to the

interrogatories propounded to the jury.14

A fair reading of the record reveals that each time the

court declined to accept the jury’s verdict and, instead,

returned the jury to the jury deliberation room, the

court did not dictate the outcome of the jury’s further

deliberations but, rather, pointed out the inconsistencies in the jury’s verdict and interrogatory answers,

respectively, informing the jury that the verdict

amounts and interrogatory answers needed to be consistent with one another and that the amount of the

verdict should be calculated in accordance with the

court’s earlier instructions. In doing so, the court acted

in a manner consistent with General Statutes § 52-223

and its corresponding Practice Book provision, § 16-17.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The complaint, when originally filed, contained seven counts alleging:

(1) breach of contract; (2) breach of warranty; (3) negligence; (4) innocent

misrepresentation; (5) breach of the duty of good faith and fair dealing; and

(7) a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. On the eve of trial, the plaintiffs withdrew all but the

breach of contract and negligence counts.

2 Whether the tissue sketch was actually given to the defendant and

whether, if so, it provided a reasonable basis for the defendant to situate

the pool were significantly contested issues at trial. The defendant claimed

that in reliance on the sketch, it placed stakes to show the intended location

of the pool and that Castelli, on behalf of the plaintiffs, approved the proposed location. The plaintiffs, on the other hand, claimed that the sketch

was not given to the defendant and, at any rate, thatit was only a rough sketch

that included no dimensions or specific designation for the pool’s location.

3 This testimony was contested by the defendant, thereby setting up a
core factual dispute for the jury’s determination.

4 After the court answered the jury question in this manner, the only issue

raised by the defendant was that the jury might have confused the court’s

instruction to ignore the language of the indemnification and hold harmless

sentence with the provision of the previous sentence regarding responsibility

for the placement of the pool. Nevertheless, because the defendant had filed

a written request to charge on the subject of the ‘‘exculpatory’’ paragraph

of the agreement, we review this claim on appeal. See State v. Johnson,

316 Conn. 45, 54, 111 A.3d 436 (2015) (‘‘[w]e never have required . . . a

defendant who has submitted a request to charge also to take an exception

to a contrary charge, and such a requirement would contravene the plain

language of [Practice Book § 42-16]’’ [internal quotation marks omitted]).

5 General Statutes § 52-572k provides in relevant part: ‘‘(a) Any covenant,

promise, agreement or understanding entered into in connection with or

collateral to a contract or agreement relative to the construction, alteration,

repair or maintenance of any building, structure or appurtenances thereto

including moving, demolition and excavating connected therewith, that purports to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused

by orresulting from the negligence of such promisee, such promisee’s agents

or employees, is against public policy and void, provided this section shall

not affect the validity of any insurance contract, workers’ compensation

agreement or other agreement issued by a licensed insurer. . . .’’

6 Because neither party asked the court to articulate the basis on which

the court charged this particular provision out of the case, we look to the

record to determine if there was a reasonable basis for the court’s action.

7

In their brief, the plaintiffs asserted that the court found the language

of the indemnification clause to be ambiguous. It did not. In its instructions

to the jury, the court carefully separated the first and second sentences of

this paragraph. The record plainly reveals that the court instructed the jury

that the language of the first sentence regarding the direction of the location

of the pool is ambiguous. The court made no such finding and it gave no

such instruction regarding the indemnification and hold harmless provision.

8

In conjunction with their application for a prejudgment remedy, the

plaintiffs attached a proposed multicount complaint. At the hearing, however, the court found that the plaintiffs had adduced evidence in support

of only their breach of contract and negligence claims.

9 The record reflects that Iacono is a principal of the defendant corporation.

10 Notably, the plaintiffs made no claims at trial that the defendant was

negligent in the manner of construction of the pool. That is, the defendant’s

expertise as a pool builder, if that is an area of expertise, was not called

into question at trial.

11 As noted previously, whether the plot plan was actually given to the

defendant by Castelli was a core disputed issue at trial. The jury, of course,

was entitled to credit evidence that the defendant was in possession of the

plot plan.

12 In response to this claim, the plaintiffs assert that the court correctly

denied the defendant’s motion for a directed verdict concerning the exculpatory language because application of such language to these facts would

have violated § 52-572k. The defendant responds that the provisions of

§ 52-572k are inapplicable to the facts at hand because the statute voids

indemnification and hold harmless provisions only when applied to claims

for bodily injury or property damages, claims absent from this litigation.

We do not need to assess the reach of § 52-572k in this appeal because we

agree with the trial court’s determination that its provisions are not applicable to this dispute between the contracting parties. See part I B of this

opinion.

13 Our review of the record reveals that on page 3 of the interrogatory

form, the jury entered the amount of $62,142.86 as damages due to the

defendant’s breach of contract. On page 5 of the interrogatory form, where

the jury was asked to indicate an award for damages based on the defendant’s

negligence, the jury indicated: ‘‘See page 3.’’ A fair reading of these answers

is that the jury arrived at an award of $62,142.86 for the defendant’s breach

of contract and a like amountforthe defendant’s negligence. On the plaintiffs’

verdict form, however, the jury indicated an award of $31,071.43 for the

defendant’s breach of contract and the same amount for the defendant’s

negligence, amounts exactly half the total damages it assessed.

14 A review of the interrogatory answers reveals, as well, that all of the

other answers were consistent with the jury’s verdict. As to the contract
claims, the jury found that the ‘‘exculpatory’’ language did not relieve the

defendant of its legal responsibility regarding the location of the pool and

that the installation of the pool at a location that violated the town zoning

regulations was the defendant’s fault. The jury found that the plaintiffs

established that the defendant breached the contract by improperly locating

the pool and that the plaintiffs substantially performed all of their obligations

under the contract. The jury found that the plaintiffs suffered economic

damages resulting from the defendant’s breach of contract in the total

amount of $62,142.86. As to the negligence claim, the jury found that the

plaintiffs proved thatthe defendant negligently installed the pool in a location

that violated the town’s zoning regulations and that this negligence was the

proximate cause of the economic damages suffered by the plaintiffs. In the

blank space provided for the jury to indicate the amount of the damages

caused by the defendant’s negligence, the jury simply referred to its calculation for contract damages.